DCCA Consolidated Case Nos.

18-AA-500 & 501

Clerk of the Court

In the Received 09/26/2019 01:16 PM
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 PETITIONERS APPENDIX

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

Due on September 25, 2019; Filed late on September 26, 2019

 DCCA Case Nos. 18-AA-500 & 501

In the District of Columbia Court of Appeals

TABLE OF CONTENTS
JOINT PETITIONER’S APPENDIX (“JPA”)

District of Columbia’s Mayor’s Agent on Historic Preservation

JUDICIAL REVIEW OF HPA Nos. 15-133 & 14-393

JPA JPA
Exhibit Title / Agency Record Page Page
Start End
7
HPA Nos. 15-133 & 14-393, dated April 5, 2018 1 – 24
6

HPA Nos. 17-263, 17-545, 17-633 dated January 11, 2019 1 26 – 39

DC FOR REASONABLE DEVELOPMENT'S FINDINGS OF

FACT AND CONCLUSIONS OF LAW HPA CASE NOS. 14- 2 41 – 56
393 and 15133, dated November 1, 2017

Federal General Services Administration McMillan Park

2 58 – 91
Quit Claim Deed dated September 26, 1986

President Lincoln’s Cottage Letter to the Zoning

2 93 – 95
Commission dated November 7, 2014

Mayor’s Agent Transcript HPA Nos. 15-133 & 14-393, July

4 97 – 651
14, 2017

Mayor’s Agent Transcript HPA Nos. 15-133 & 14-393,

1 653 – 1100
September 11, 2017

Mayor’s Agent Transcript HPA Nos. 15-133 & 14-393,

1 1102 – 1591
September 18, 2017

i.
 GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF PLANNING, HISTORIC PRESERVATION OFFICE
MAYOR'S AGENT FOR HISTORIC PRESERVATION
1100 4T1 STREET SW,SUITE E650
WASHINGTON,D.C. 20024

HPA Nos. 14-393 and 15-133

In the Matter of:

Application of Vision McMillan

Partners, LLC,and the District of
Columbia Office of the Deputy Mayor
for Planning and Economic Development ("the Applicants")

2501 (2507)First Street NW

McMillan Park Reservoir
Square 3128, Lot 800

Vision McMillan Partners and the District of Columbia Office of the Deputy Mayor for Planning
and Economic Development here seek permits to demolish underground water filtration cells and to
subdivide the McMillan Sand Filtration Site, a designated landmark protected by the D.C. Historic
Landmark and Historic District Protection Act, D.C. Code § 6-1101, et seq. Previously, the Mayor's Agent
had "cleared" such permits, finding that granting the applications was "necessary in the public interest,"
in order to construct a "project of special merit." See id. §§ 6-1102(10), -1105(e),- 1106(e). However,
upon petition for review, the District of Columbia Court of Appeals vacated those orders and remanded
the applications to the Mayor's Agent, instructing the Mayor's Agent to make more specific findings
regarding special merit. Friends of McMillan Pork v. D.C. Zoning Commission, 149 A.3d 1027 (D.C. 2016).1

By order dated January 11, 2017,the Mayor's Agent scheduled a public hearing on remand to
address issues raised by the court's opinion:

1) Do the proposed project's historic preservation benefits taken as a whole outweigh its
historic preservation harms? Slip op. at 28. In addressing this question, the applicants are requested to
provide legal analysis as to how such an inquiry should be conducted consistent with the Historic
Landmark and Historic District Protection Act, D.C. Code §§ 6-1102(10), 1101 (b), 1104(e), and 1106 (e).

2) What are the specific architecture, land planning, or community benefits that individually or
collectively make this a project of special merit within the meaning of D.C. Code § 6-1102(11)?

3)15 the proposed demolition and subdivision necessary to obtain the special merit benefits
identified? Could an economically viable mixed-use development meeting the goals of the
comprehensive plan be constructed on the site with less demolition and no subdivision?

The court in the same opinion also vacated and remanded the order of the Zoning Commission approving a
Planned Unit Development on the site.

** JPA.1 **
 4) Are there reasonable alternatives that would achieve the same special merit benefits that
would avoid or reduce the need for demolition or subdivision?

After a series of delays, full-day hearings were held on July 14 and September 18, 2017.2 Parties
in opposition were the Friends of McMillan Park ("FOMP"), the National Trust for Historic Preservation
("NTHP"),and D.C.for Reasonable Development("DC4RD"). The applicants presented the following
witnesses during the hearings on remand: Brian Kenner (Deputy Mayor for Planning and Economic
Development), Chris Ruiz (qualified as an expert on structural engineering), Emily Eig (EHT Traceries,
Inc., qualified as an expert on historic Preservation), Matthew Bell (Perkins Eastman/EEK, qualified as an
expert on land use planning), Adam Weers(Trammel Crow Co.), Len Bogorad (Lesser & Co., qualified as
an expert in fiscal impact analysis), Aakash Thakkar (EYA), and Shane Dettman (Holland 8i Knight,
qualified as an expert in land use planning).' FOMP and NTHP presented the following witnesses in
opposition: Tom Moriarity (qualified as an expert in real estate development), Anne Sellin (qualified as
an expert in historic preservation), and Kirby Vining (Friends of McMillan Park). DC4RD offered Edward
Johnson (qualified as expert in land use planning and architecture). Several community members also
testified offering their views. Mr. Thakkar presented rebuttal testimony in writing after the hearing,
pursuant to a ruling by the Hearing Officer, in order to end the lengthy hearing. The parties submitted
Proposed Findings of Fact and Conclusion of Law in November, 2017.

Procedural Matters

The parties in opposition raised a number of procedural objections. In their prehearing

statement,the applicants requested to amend their applications to argue that the proposed demolition
and subdivision were "consistent with the purposes of the Act." D.C. Code §§ 6-1104(e), -1106(e). The
Court of Appeals had for the first time interpreted the Act to require the Mayor's Agent to consider
historic preservation benefits of a project only under the rubric of"consistent with purposes of the Act,"
and not under the standard of special merit. 149 A.3d at 1041-42. In the prior proceedings, the
applicants had argued that the preservation benefits of their proposal contributed to special merit, in
apparent reliance on prior decisions of the Court and of the Mayor's Agent!' Given the Court's
clarification of the correct legal analysis and the Mayor's Agent's broad authority to manage hearings,
10-C DCMR 3003.2(b), the applicants' request was granted, over the opponents' meritless claims of res
judicata regarding an order that had been vacated. FOMP's request to postpone the July 14 hearing for
four months because an expert witness was away at her summer home was also rejected.

FOMP and DC4RD also moved to disqualify both the Mayor's Agent and the Mayor's Agent
Hearing Officer on the ground that the Mayor's Agent's position as Director of the D.C. Office of

Citations herein to the transcript of the July 14 hearing in this decision are given as Tr. 1, and to the transcript of
the September 18 hearing as Tr. 2.
3 FOMP objected to Mr. Dettman's testimony on the ground that he was barred from appearing before a D.C.

administrative proceeding, due to his prior employment with the National Capital Planning Commission, pursuant
to 18 U.S.C. § 207(a). The Hearing Officer permitted Mr. Dettman to testify on the ground that the provision did
not prevent a former employee of a federal agency to appear in a DC matter. See 18 U.S.C. § 207(a)(3).
4 In Citizens Committee to Protect Historic Rhodes Tavern v. District of Columbia Dept. of Housing and Comm. Dev.,

432 A.2d 710, 715 (D.C. 1981), the Court of Appeals had upheld the Mayor's Agent's finding of special merit based
on an incorporation of historic facades into a new office building. The Mayor's Agent subsequently frequently
considered historic preservation benefits as eligible elements of special merit. See, e.g., QC 36.9 LLC, HPA Nos. 14-
460,-461(2015), at https://repositorylibraiy.georgetown.edufhandle/10822//61349.

** JPA.2 **
Planning precluded him from being considered to be a sufficiently neutral decision maker. The Director
is a subordinate of the Deputy Mayor for Planning and Economic Development, who is an applicant in
this case. FOMP claimed that the Office of Planning thus has a "direct financial interest in the outcome
of this matter." FOMP further argued that the participation of the Mayor's Agent Hearing Officer did
not cure the problem, since the Director of the Office of Planning, as Mayor's Agent, has to confirm all
the substantive orders of the Hearing Officer. The motion did not allege any personal bias' but relied on
the hierarchical relationship between DMPED and the Director of the Office of Planning, The Hearing
Officer denied this motion at the beginning of the hearing on July 14, Tr. at 1,8--17, and here
elaborates on the reasons.

The Act assigns decisions regarding demolition and subdivision to the Mayor. The Mayor always
has delegated such decisions to Mayor's Agents, who have held a variety of other responsibilities. Some
have been mayoral appointees and some have been administrative law judges. Overtime,the
proceedings and decisions of the Mayor's Agent have become more regular and legalistic. A Mayor's
Agent hearing must be conducted in accordance with the contested case procedures of the District of
Columbia Administrative Procedure Act. See 10A DCMR § 3000.1. For a decade now the decisions of the
Mayor's Agent have been published on a website maintained by the Georgetown Law Library, and
parties frequently cite such decisions as precedents in proceedings before the Mayor's Agent.
Following the normal pattern of regularity in administrative adjudication, the Mayor's Agent must either
continue to apply rules adopted in prior cases or provide a reasoned explanation for departing from
them. See RICHARD J. PIERCE, ADMINISTRATIVE LAW TREATISE § 11.5 (5Th ed., 2010).

Soon after the transfer of the Historic Preservation Office into the Office of Planning,the
Director, who was not a lawyer, began in 2008 to act personally as the Mayor's Agent. After several such
cases, OP and HPO decided to recruit as a hearing officer a lawyer who had some credible knowledge of
historic preservation law. They thought that a local law professor who was not a District employee could
be considered reasonably neutral. Because the Hearing Officer is a contractor rather than a District
employee, however, he cannot make official final decisions under the Act. Under the current delegation
from the Mayor, the Hearing Officer conducts the proceedings and prepares draft findings of fact and
conclusions of law, but the Director of the Office of Planning as Mayor's Agent remains free to accept or
reject all such draft findings and thus makes all final substantive decisions.

FOM P's motion had to be rejected for two reasons. First, under applicable precedents, the
Director of the Office of Planning should not be disqualified from serving as the Mayor's Agent, even in
cases where the District of Columbia is an applicant. The most significant precedent is Committee to
Save Historic Rhodes Tavern v. a C Dep't of Housing and Consumer Affairs, 432 Ald 710(D.C.
1981)("Rh odes Tavern"). In that case, a private developer sought to demolish the remains of D.C.'s first
city hall in order to construct a major office development. The Mayor's Agent, who was a special
assistant to the Director of the Department of Housing and Community Affairs, granted the application.
Upon appeal, opponents argued that allowing a District employee to make the decision violated Due
Process, because Mayor Marion Barry had made strong public statements in favor of the project. The
Court found "no merit" in the argument, given that there had been no ex parte communications with

5FOMP makes a half-hearted claim of a lack of impartiality on the grounds that the hearing was scheduled at a
time that was inconvenient for one of their witnesses, it lost a procedural motion, and a staff response to an e-mail
was unhelpful. None of these begin to indicate bias.

** JPA.3 **
the Mayor's Agent nor any "personal interest or bias on the part of the decision-maker." id. at 719-20.
Nor, so long as the Mayor's Agent decides the case on the record evidence, is there any appearance of
impropriety.432 A.2d at 720.

in a subsequent Mayor's Agent case, in re Third Church Christ, Scientist, HPA No, 2008-141(May
12, 2009),
file:///CAlsers/byrne/Documents/Historic%20Preservation%201Viayor's%20Agent/MOVilllanG420Plan/Th
ird%20Church%20decision.pdf, opponents to an application for demolition of an historic church sought
to disqualify the Mayor's Agent, who was then the Director of the Office of Planning, because DMPED
had strongly and publicly supported application. Relying on Rhodes Tavern, the Mayor's Agent found "no
merit in DCPL's contention that when the Mayor's Agent sits in a contested case personally rather than
through an appointed hearing examiner, it is not appropriate for either the Mayor or the Deputy Mayor
to take a position on or otherwise prejudge the contested case, or its contention that the Mayor's Agent
has prejudged the case due to a duty of loyalty to the Mayor." fd., at 17. No petition for review was
sought.

Since the current structure was adopted, with the Director of the Office of Planning serving as
Mayor's Agent but with proceedings and proposed findings developed by the Mayor's Agent Hearing
Officer, there has been one prior case where DMPED was an applicant and its application to move two
historic houses was granted, but no challenge to the Director's participation as Mayor's Agent was
raised. In re. 2234 and 2238 Martin Luther King Jr. Ave., SE, I-PA No. 2014-221 and 2014-222, October
28, 2014, at
httoslirepository.library.georgetovvn.eduibitstreamihandle/10822/761657/Full%20text%200f%20orcle
r.pdf?sequence-l&isAlloweci=y ,sum. affd, Frederick Douglas Community improvement Council v.
District of Columbia Office of Planning, Nos. 14-AA-1348 and 14-AA-1354 (D.C., Oct. 30, 2015). In the
current matter, regarding the McMillan Sand Filtration Site, the parties previously engaged in extensive
hearings before the Mayor Agent Hearing Officer and opponents sought review of two decisions by the
Mayor's Agent in the Court of Appeals with no concern raised about structural bias on the part of the
decision makers. Indeed, it was only on the day before the scheduled hearing on remand, after FOMP
had had two other procedural motions denied, that FOMP moved to disqualify the decision makers.6

Plainly, under existing precedents, the Director of the Office of Planning should not be
disqualified from serving as the Mayor's Agent in this case just because he is a political appointee, when
D.C.'s elected leaders have taken a strong position in favor of the project, FOMP seeks to distinguish this
conclusion on the ground that, in this case,the Office of Planning has a "direct financial interest in the
outcome," because the District is an "applicant and development partner in a private development
project." FOMP cites the substantial economic benefits to the District of Columbia that the applicants
claim the project will generate.

None of these arguments significantly distinguishes this case from Rhodes Tavern. The economic
interests of the District of Columbia are essentially the same in both cases, in that the financial benefits
accrue to the District from the generation of employment and property taxes from new development.
There has been no allegation that the District will earn a profit from its participation in the project;

6FOMP's stream of procedural objections, although within the bounds of zealous advocacy, reflect the weakness
of its substantive legal position, as explained below.

** JPA.4 **
rather, opponents have complained (rightly or wrongly)that the District is giving away too many public
benefits to the private developers. The individual decision makers in neither case have any personal
financial interest in the outcome; they will not reap any personal economic benefit from approval of the
projects. Political support for a purely private development, like that in Rhodes Tavern, and the joint
public private development here have important differences, but the differences do not relate to the
ability of officials to assess projects fairly under the applicable rules. The chief difference here is that the
District is contributing public assets and securing public benefits beyond what could be gained in a
purely privately financed project in terms of a public park and recreation center, affordable housing, and
historic preservation. Those are not adequate grounds in themselves for clearing demolition or
subdivision permits and opponents are entitled to receive fair and unbiased decisions on those
questions. So long as the matter is "decided properly on the basis of an extensive and complete record"
the parties have no ground to complain about the impartiality of the Mayor's Agent.

Moreover,this case is being heard by the Mayor's Agent Hearing Officer, who is a private
contractor with the District of Columbia. This officer conducts the evidentiary hearing and prepares draft
findings of fact and conclusions of law for the Mayor's Agent. Although the Mayor's Agent makes the
official decision, he must rely substantially on the work of the Hearing Officer, who does not take
direction on the proposed outcome of cases from any official. And although the Hearing Officer receives
a modest stipend for his services, the small sum does not compare to the value of his professional
reputation as a scholar and teacher of historic preservation law. The contract between the Hearing
Officer and the District of Columbia provides: "The Hearing Officer also may terminate upon 30 days
written notice should he conclude in his sole discretion that the Director (of the Office of Planning] has
lost confidence in his performance." This provision provides an additional protection for the integrity of
the process.

Findings of Fact
The 25-acre McMillan Sand Filtration Site ("Site") is part of the 92-acre McMillan Park Reservoir,
which is designated as an individual landmark in the D.C. Inventory of Historic Sites and listed as a
Historic District in the National Register of Historic Places. The reservoir complex was constructed
between 1902 and 1905 as part of Washington's municipal water works. Water stored at the reservoir
was be filtered by flowing through an underground sand filtration system mostly on the Site before
being distributed. A public park was constructed at the south end of the complex, featuring a fountain
dedicated to Senator James McMillan, the chair of the Senate Commission that had developed the
epochal 1902 plan for the improvement of Washington and for whom the complex is named. In 1986,
the U.S. Army Corps of Engineers installed a chemical water purification system where the park had
been, which rendered the sand filtration system functionally superfluous. The United States soon sold
the Site to the District of Columbia for $9.3 million, with the express understanding that the District
would use at least some of the Site for economic development. See McMillan Park Committee v. NCPC,
968 F.2d 1283, 1286 {D.C. Cir. 1992). In 1989, the D.C. Council amended the District's Comprehensive
Plan to provide that the site should be developed with residences, commercial development, parks,
recreation, and open space. id.

After several failed solicitations for development of the Site, D.C. selected VMP as its
development partner. VMP comprises a team of well-regarded development companies: EVA, Jair Lynch
Development Partners, and Trammel Crow Company. After extensive, sometimes contentious

** JPA.5 **
community consultation, VMP developed the master plan ("Plan")for the application at issue here. The
Plan divides the Site into seven parcels. Parcel One will contain a large health care building with ground
floor retail and surrounded by substantial open space, including a preserved and exposed sand filtration
cell and a "healing garden." Parcels Two and Three will contain another health care building to be built
at a later date and a multifamily residential building. Parcel Four will contain another multifamily
residential building and ground floor supermarket. Parcel Five will contain 146 rowhouses. Parcel Six will
contain a public park and recreation center. Parcel Seven contains what had been the north service
court, which will serve as the main road across the Site.

The Plan proposes substantial amounts of historic preservation, pursuant to a preservation plan
developed by EHT Traceries, a highly respected consultant. The two lateral service courts that have
always divided the Site into three segments will be retained and incorporated as cross streets. The north
service court will provide two-way vehicular access, as well as substantial sidewalks and ground floor
retail. The south service court will provide access to the park and community center. The Plan proposes
to recreate Olmstead Walk, the walkway around virtually the entire Site, as originally designed by
Frederick Law Olmstead, Jr. The Plan also incorporates a reconstructed plinth at the southwest end of
the park, which preserves views to the reservoir and city monuments. The Plan preserves and adaptively
reuses virtually all of the above ground historic structures, including the regulator houses, sand bins,
sand washers, and many walls, stairs, and ramps. One underground sand filtration cell and a substantial
portion of another will be preserved and exposed to public view. These historic resources will be
incorporated into the design of the modern construction. Design guidelines for new construction have
been implemented to maintain coherence and compatibility with the historic resources. The Plan also
provides for an interpretative program to tell the story of the historic water works. The preservation of
such a rich collection of historic resources, their incorporation into the development plan, the design
guidelines, and the interpretative program should give residents and visitors a living sense of the
significance of the historic legacy of the Site.

The Plan proposes that the southern portion of the Site be developed as a public park, which will
include a 6.2-acre green space, a 17,500-square foot community center, and the south service court.
The open parts of the park will include playgrounds and a "sprayground;" a large informal play area, an
amphitheater, terraced seating, a storm water retention pond, and exhibits relating the history of the
Site. Within the park, an underground cell (Cell 28) will be exposed to view and restored to convey the
operation of the sand filtration process. The park will also incorporate the raised plinth and the
Olmstead Walk. The community center, which will be owned by DC and open to the public, will include a
fitness center with locker and shower facilities, a 25-meter swimming pool, a multi-purpose community
room with kitchen,free public Wi-Fi, a gallery, and exhibits on the history of the Site.

The Plan commits to providing a significant amount of affordable housing. At least 20 percent of
the units will be dedicated to and made affordable to persons earning between 50 and 80 percent of
area median income ("AMI"), including 22 rowhouse units. Uncontradicted testimony established that
the affordable units will constitute approximately 17 percent of the total residential floor area of the
project. Eight-five of the affordable units in a multi-family building will be set aside for seniors earning
no more than 60 percent of AMI, and nine of the affordable rowhouse units will be set aside for low-
income households earning no more than 50 percent of AMI.

** JPA.6 **
 The more than one million square foot health care facility plays a central role in the Plan. It is
anticipated to create most of the employment and tax revenue benefits, including nearly 70 percent of
the net revenue to the District. Tr. 1, at 241-42. The facility will include two buildings. The larger building
will contain approximately 860,000 square feet of health care uses and related facilities; the second,
smaller, building will include approximately 173,000 square feet for similar uses, with retail at the
ground level. This large health care facility plays several roles in the overall Plan. The rents it will earn
provide a necessary economic foundation for the entire project. Also, it provides the project with a large
daytime population, which should support the retail establishments and active use of public spaces.
That the health care facility can be built and leased is likely but is not certain. At the time of the hearing,
the developer did not have a tenant. On the other hand, the applicants have shown that the location
makes development sense, being in close proximity to the Washington Hospital Center, the Children's
National Medical Center, the Veteran's Administration hospital, and the National Rehabilitation Center.
Moreover, the health care facilities in the District are aged and there has been no significant
construction of new facilities since 2002, despite large population increases in the city. The District has
been ranked last in terms of health care facilities per capita. Tr. 1, at 212-39. The health care facility
appears to meet a public and market need.

Lincontradicted expert testimony projected that the project would create 3,300 on-site
permanent jobs, 1,100 indirect permanent jobs, and 3,000 construction jobs. Tr. 1,at 244-45. These
employment gains exceed any in prior special merit cases. Although FOMP had suggested several
contemporary development projects that are underway in D.C., Len Bogorad testified that each one was
projected to generate less permanent and construction employment than the McMillan project,

The applicants also commit to a number of community benefits for District residents and the
immediate neighborhood. The applicants will execute a first source employment agreement with the
District Department of Employment Services aiming to employee D.C. residents in a majority of the
4,400 permanent jobs and 3000 full-time equivalent construction jobs that the McMillan project is
projected to develop over seven years. The applicants also will execute an agreement with the D.C.
Department of Small and Local Business Development to contract with certified local businesses for 35
percent of the costs for development design, construction, maintenance, and security for the project.
The applicants will contribute approximately $1 million to the Community Foundation of the National
Capital Region for job training and scholarships, as well as another $125,000 to support teachers and
students in science, technology, engineering, and math programs at selected public high schools. The
applicants have committed to another nearly $1 million to support cultural and local retail operations
throughout the Site. The applicants have also committed to spend $650,000 for cityscape improvements
in the surrounding neighborhood.

The Site originally contained 20 underground sand filtration cells(a few more are offsite). Each
cell consists of more than 200 identical vaulted chambers constructed of unreinforced concrete. When
in service, the cell floors would have been covered in sand through which water would slowly flow in
order to be purified. Each cell, and indeed, each chamber, is visually identical to all others. In 2013, the
Mayor's Agent permitted D.C. Water and Sewer Authority, now known simply as DC Water, to demolish
two cells in order to construct a sewer overflow tunnel to control flooding in adjacent neighborhoods. In
re McMillan Park Reservoir, HPA 2013-208, at
https://repositonelibrary.georgetown.edujhandle/10822)761652. In this case, the applicants propose to
demolish sixteen of the remaining cells in order to construct the project according to the Plan. According

** JPA.7 **
to a credible engineering report by Robert Silman Associates, the cells are in poor condition, and many
are in danger of imminent collapse. In addition to the weak strength of unreinforced concrete, the
structures rest on unstable ground and have settled over the century. The Plan provides that one cell
(Cell 14) be preserved as an example of the type and that another (Cell 28) be preserved in substantial
part and incorporated into the park with interpretative materials at the south end of the Site.

In the 2014 hearings, the applicants presented a structural engineer as a credible expert
witness, kirk Mettam of Silman Associates, who testified at length about the physical difficulties in
preserving the underground cells. Tr. Oct. 16, 2014, at 121 ff. He persuasively explained that the
unreinforced concrete cells were susceptible to catastrophic collapse at any time, that they could not be
reinforced without destroying their historic integrity, that there was no reasonable scenario under
which they could be opened safely to public access, that they would need to be reinforced extensively
even to allow the public on the surface of the Site, and that only minimal construction could be built
above the cells, even if reinforced. Upon this basis, and after considering the testimony of FOMP's
expert witness, the Mayor's Agent found in 2015 that demolition of the cells was necessary to construct
the proposed project of special merit. In the 2017 hearing, the applicants presented another expert in
structural engineering, Chris Ruiz, also of Silman, who further clarified the firm's analysis of the imposing
physical challenges to creating public access to the cells and to construction above them. Tr. 1, at 89 —
106. The opponents presented no evidence in rebuttal at the remand hearings. Accordingly, the
Mayor's Agent finds that there is no reasonable strategy for adaptive reuse of the underground cells
that would not compromise their historic integrity.

In order to implement the Plan, the Site also must be subdivided because the D.C. Zoning
Regulations require a separate record lot for each building parcel. The applicants requested the D.C.
Office of the Surveyor to create seven record lots. It also requested a number of "theoretical building
sites" to conform to the zoning regulations, 11 DCMR § 2517. No one has suggested that the applicants
have sought greater subdivision than is legally required to build the structures according to the Plan. The
parties do disagree about the current legal subdivision of the Site. Before acquisition by the federal
government for construction of the reservoir complex, the Site had been subdivided in 1887 by a private
developer into 122 record lots. The federal government ignored this subdivision, as it was entitled to do,
when it acquired the Site and managed it as a single parcel.

Public decision making about how to use the Site has been long and arduous. Initially, the
District of Columbia in 1986 declined to acquire the Site from the United States for $1 on the condition
that it maintain it as open space, and instead paid more than $9 million in order to develop it as mixed
use. Thereafter, in 1989, the D.C. Council amended the District's Comprehensive Plan to provide for
development of the Site in "the mixed use medium density residential, moderate density commercial,
and parks, recreation, and open space land use category." McMillan Park Committee v. National Capital
Planning Com'n, 968 F.2d 1283, 11.285 (D.C. Cir 1992). After more than a decade of fruitless solicitations
for development of the Site, in 2006 the District conducted a competition to choose a development
team to work out a plan in concert with the City and finally choose VMP.

Matthew Bell testified about the development of the Plan from 2006 to 2014. He stated that its
many alternatives were considered and the Plan evolved based upon citizen and regulatory input. With
each iteration, the Plan provided for more preservation and recreation space with less demolition. Tr. 1,
at 130 - 35. The prior Mayor's Agent decision in this case describes the extensive, if contentious,

** JPA.8 **
community meetings and consideration surrounding the development of the Plan. Advisory
Neighborhood Commission SE,the affected ANC, supports the proposal. The 2014 Plan was approved by
the Historic Preservation Review Board, noting that it retained significant character-defining features of
the landmark sufficient to convey its historic character." HPRB Staff Report, Oct. 31, 2013, at 3.
Subsequently, the D.C. Council unanimously approved the conveyance of much of the Site to the private
developers, retaining the area for the park and community center, in a disposal resolution that recites
the chief elements of the development plan. 62 D.C. Reg. 1089 — 1099 (2015).

Discussion

The Mayor's Agent can clear a permit for demolition or subdivision of a landmark only if he or
she finds that a proposed project is "necessary in the public interest." D.C. Code §§ 6-1104(e), -1106(e).
"Necessary in the public interest means consistent with the purposes of this act as set forth in section
2(b) or necessary to allow the construction of a project of special merit." Id. § 6-1102(10). With respect
to designated landmarks, such as the Site, the purposes of the Act are: "(A) To retain and enhance
historic landmarks in the District of Columbia and to encourage their adaptation for current use; and (B)
To encourage the restoration of historic landmarks." id., § 1101(0(2). For a project to be one of special
merit, it must propose to create "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." Id., § 1102(11).

Consistent with the Purposes of the Act

As noted above,the Court of Appeals now has made it clear that the historic preservation
benefits of a project should be examined only to determine if they are consistent with the purposes of
the Act and not as potential aspects of special merit. The Court stated: "if a project on balance benefits
historical-preservation interests more than it harms those interests, the Mayor's Agent need not make a
special-merit finding before approving demolition or subdivision." 149 A.3d at 1041. Assessing that
balance of preservation loss and benefit also provides a baseline for comparing any special merit
benefits against any net preservation losses. Id. Measuring preservation benefits and losses is no
mechanical operation. The Mayor's Agent must consider both the quality and quantity of preservation
effects in light of the purposes of the Act specified in D.C. Code § 1102(b)(2).

The Site presents a unique historic preservation challenge. On the one hand, the McMillan Sand
Filtration Site signifies an important milestone in public health: the first water purification plant in D.C.
history. Elements of the Site also convey the pride our nation took in public works in the early 20th
Century. Frederick Law Olmstead, Jr., designed the layout of the Site. On the other hand, it is a large,
defunct industrial facility in the middle of a city experiencing dramatic growth pressures. The Site does
not contain buildings that can be adapted for residences or for commercial uses. Nor does the Site have
a significant history of human occupation or even visitation; indeed, the Site has been fenced off from
the public since World War li. The memorial fountain honoring Senator McMillan formerly stood in a
public park south of the reservoir, now occupied by water works, never within the Site.' The entire

7 Emily Fig testified that the all the pieces of the McMillan fountain have now been collected and that it may be
possible to reassemble it, perhaps in the park on the south end of the Site. Tr. 1, at 112; Tr. 2, at 336-37. The
desirability of restoring the fountain and locating it on the Site was one proposition that all parties agreed te.

** JPA.9 **
surface of the Site rests on underground cells containing nearly 4,000 vaults constructed of unreinforced
concrete.

To balance preservation benefits against preservation harms, the Mayor's Agent must evaluate
the preservation harms from demolition of the underground cells and the subdivision. If the proposal
only necessitated demolition of sixteen underground cells, the Mayor's Agent could easily conclude that
the preservation benefits of the proposal outweigh the losses. This is not to say that the destruction of
these cells is not a loss; elimination of them destroys the capacity to experience the vast scale of the
numerous vaulted chambers purifying large quantities of water. Demolition of any part of an historic
landmark is a grave matter, and here the applicants propose to demolish most of the remaining cells.
But several considerations lessen the weight assigned to this demolition. As found above, there is no
reasonable scheme under which the public can be allowed safely to enter these cells without structural
reinforcements that would eliminate their historical integrity. The applicants propose to preserve all of
one cell and part of another, and expose them for public viewing. It is significant that all of the cells are
identical, so that seeing one gives an accurate picture of what each looked like. With the interpretative
materials promised by the applicants, viewers should get a realistic sense of how sand filtration worked.
Finally, adaptive redevelopment of the Site cannot safely occur without either extensive reinforcement
or demolition of the cells.

On the other hand, the preservation benefits of the project are extensive and impressive. The
applicants have adopted a preservation plan created by EHT Traceries, a leading preservation firm, with
the input of Silman Associates as structural engineers, the overall goal of which is to convey the
significance of the Site as an industrial area of historic importance.' Historic Preservation Plan, McMillan
Sand Filtration Site(May 2016). To this end,the Plan provides for the retention of character-defining
elements of the Site: the rectangular form,the berms, the tri-partite organization, the relationship
between the service courts, the open space in the southern plain, and two cells. It also retains and
restores or rehabilitates virtually all the above ground structures. Emily Eig testified, based upon
extensive, professional analysis of all the historical elements of the Site, that these above ground
features are more significant than the below ground cells because they depict many of the operations at
the site, their architecture expresses the public pride in the works, and they have been, and can
continue to be, viewed by the public. Tr., Nov. 3, 2014, at 354-55; Tr., Oct. 6, 2014, at 86-88, 94-102.
Moreover, the above ground features can be adapted for current use as features of the new mixed-use
development. By contrast,the cells below ground are inaccessible, identical to each other, and
dangerously unstable.

The applicants will also reconstruct the raised plinth at the southern end of the Site and the
Olmstead Walk around the circumference of the Site. These are the features originally planned by
Olmstead as public amenities. The applicants also will provide live tours and interpretative panels to
explain the functioning and history of the sand filtration process. Moreover, all of these historic features
will be adapted for contemporary use by providing a historically rooted identity to a new mixed-use
community, which in turn will activate the Site and expose the public to its historical resources. The
HPRB approved the Plan and concluded that the project "retains the most important above-grade
topographical, architectural and engineering features, will result in substantial rehabilitation and
meaningful incorporation of the sand bins, regulator houses, sand washers and portions of the service

8 This Plan was finished after the prior Mayor's Agent decision in this matter. Tr. 1, at 118.

10

** JPA.10 **
court walls; retains two of the below-grade cells for interpretation and reuse, and retains a substantial
open space within the new public park at the southern end of the site." HPO Staff Report, October 31,
2013, at 3. It also found that the Plan "retain[s] significant character-defining features of the landmark
sufficient to convey its historic character" and in a manner that will result in "an architecturally cohesive,
high-quality and site-specific series of projects that relate to the character of the landmark." id. Even
accounting for the demolition of sixteen cells, the Plan plainly retains, enhances, and restores the most
significant elements of the landmark and adapts them for current use. This judgment is reinforced by
consideration of District of Columbia Preservation League v. District of Columbia Department of
Consumer and Regulatory Affairs, 711 A.2d 1273 (D.C. 1995), where the Court of Appeals sustained the
Mayor's Agent's permitting demolition of a structurally impaired interior wall, as consistent with the
purposes of the Act, when it was part of a restoration and adaptation of an abandoned historic
landmark firehouse as a restaurant.

It is more difficult to balance these preservation benefits against the harms from subdivision of
the Site. First, it is quite unclear how one should conceptualize the preservation harms caused by
subdivision. The applicants argue that subdivision only changes lines on paper with no certain
preservation effect. This perspective has some limited truth. Grave harms to preservation values can be
affected without any subdivision, as by the erection of incompatible additions to a single designated
building on one lot, and preservation values can be served by subdivision, as when a new compatible
building is erected on the subdivided lot of a protected building, generating funds for restoring the
historic building. Unlike demolition, subdivision in itself has no direct preservation effects; these effects
result from what an applicant seeks to do with the new platting. Thus,an applicant could erect a large
and entirely unsympathetic building on the McMillan Sand Filtration Site with no subdivision, or
subdivide the Site into numerous lots but only on a small corner of the Site. Thus, the Court of Appeals
directive that the Mayor's Agent consider whether a meritorious project could be built while "reducing
the need for demolition or subdivision" cannot be understood as mandating a purely quantitative
assessment, but must be considered pursued in light of the Act's focus on "reducing the adverse impact
on historic preservation." 149 A.3d at 1043.

Yet, it seems clear that the point of subjecting subdivisions on land marked properties to
preservation controls was "to ensure that open spaces in particular were preserved," Williams-Addison
House, H.P.A. 07-267, at 14(Feb. 20, 2008)(construing 1990 amendment to the Act), at
https:firepository.library.georgetown.eduihandle/10822/761637. Subdivisions often are prerequisites
to more densely developing a parcel, which can impair the historic integrity of a site. Williams-Addison
House is instructive. The house in question was a large early nineteenth century single family home on a
large lot, which was both an individually designated landmark and a contributing building in the
Georgetown Historic District. The applicant sought to subdivide the single lot into two record lots, for
the purpose of constructing a new house on the rear of the property. In ruling that the subdivision was
not consistent with the purposes of the Act,the Mayor's Agent found that the subdivision plan did not
offer anything to retain and enhance the historic character of the landmark, the significance of which
included its unusual size, and "did nothing" to adapt the landmark for current use, since it remained
well-suited as a single-family home. Id., at 11-12. Thus, preservation review of subdivision protects the
landscape quality of a landmark, but can be assessed only in the context of the overall effect of a
proposed project. See also In re Tregaron, HPA 04-145 (2006)(subdivision and sale of part of an historic
landmark upheld as a project of special merit when proceeds are used for conservation and restoration

11

** JPA.11 **
of a substantial part of the landscape), at
https://repiository,librarv.georgetowreeduhancile/10822/761620.

Before turning to a more detailed consideration of the preservation harms the proposed
subdivision engenders,the treatment of adaptive use in Williams-Addison House should be considered.
There, the Mayor's Agent found no value in adaptive reuse through subdivision of the existing lot, since
the lot already complemented the historic and economically valuable house. The McMillan Sand
Filtration Site has no economically viable current use without new development, and new development
practically requires some subdivision. Moreover,the extensive restoration of the many above ground
historic resources and the reconstruction of the Olmstead Walk and the plinth will be financed in large
measure by that development. The Plan adapts these important historic resources to current use. Thus,
in considering whether the subdivision is consistent with the purposes of the Act, one must concede
that it significantly advances several of the Act's purposes.

But, of course, not all the purposes. The Plan imposes a dramatic change on the historic
industrial landscape that is the sand filtration site by erecting a substantial mixed-use development on
an open site. Ti. 2, at 30-31 (testimony of Anne Sellin). Subdivision plays a constitutive role in this
change because the proposed seven record lots and twenty-one theoretical lots are legally necessary to
build the project.9 Although the Site functions as if it were one large lot, the property comprises
approximately 122 record lots that predate the Site's acquisition and use by the Federal government as
a sand filtration facility. No legal doctrine has been suggested that would terminate that record
subdivision based on its long disregard by the United States, which was not bound by D.C. law, once the
federal government relinquished ownership. The applicants argue that their proposal actually reduces
the number of lots, suggesting that this reduction alone makes the proposal consistent with purposes of
the Act. But, again,the assessment of preservation loss cannot turn on the number of lots effected by
subdivision; the Act applies to both assembly of many lots into fewer and the division of lots into more.
D.C. Code § 6-1102(13).

The historic preservation effect of a subdivision that would convert 122 lots into 7 record and 21
theoretical lots is difficult to assess. The fragmented lots created by the 1887 subdivision are
inconsistent with the historic character that the Site subsequently acquired. The subdivision sought by
the applicants may provide more protection for the historic character of the Site than the legacy
subdivision, for example, by preserving the open space at the south end of the Site as a single lot. tithe
United States had sold the Site to a private developer in 1986,that developer could have built 122
rowhouses on the Site without needing to subdivide. Such construction might well have obliterated
more of the character of the Site than the subdivision proposed here. The HPRB typically finds
subdivisions that assemble many small lots into fewer large lots to be consistent with the purposes of
the Act because they provide more protections for historic buildings; the Act was amended in 2006 to
eliminate public hearings before the Mayor's Agent when the HPRB finds that an assembling subdivision
is consistent with the purposes of the Act. HPO Staff Report, HPA No, 15-133. Yet construction of all
these 122 row houses without subdivision might not be permitted pursuant to the Act if the applicants

9 Theoretical lots are provided for in the DC Zoning Regulations at 11 DCMR § 2517. Williams-Addison House
clarified that DC Code § 6-1106 applies to subdivision into theoretical lots as well as into record lots.

12

** JPA.12 **
needed to demolish the underground cells or if the Historic Preservation Review Board concluded that
the new construction would be inconsistent with the character of the landmark.

The subdivision sought by the applicants does retain significant aspects of the historic
organization of the Site. As mentioned above, the Plan preserves in one lot the open space at the south
end of the site, which also will facilitate the reconstruction of the plinth and the Olmstead Walk. It also
preserves the tripartite division of the Site by the service courts. These, along with the significant above
ground structures, represent a thoughtful effort to convey the historical significance of the Site to
contemporary observers.

The large buildings permitted by the proposed subdivision, however, decisively transform the
appearance of the Site. Much of its open space character will be lost. Characteristic ground-level views
from the Site will largely be confined to the south third and outward from the Olmstead Walk.'The
Zoning Regulations require, with exceptions not relevant here, that each building sit on its own lot.
11 DCMR § 2517. The large health care buildings and the multi-family housing require a new subdivision
to create the large lots on which those big buildings will sit. To that extent, the subdivision would foster
preservation harms. On the other hand,the subdivision would only permit but not necessarily require
buildings with the lot coverage proposed. The height and bulk of those buildings are not dictated by
subdivision. Not all the loss of historic character from the large health care buildings can be attributed to
subdivision.

The conclusion to this investigation of whether the preservation benefits from this subdivision
into 7 record and 21 theoretical lots outweigh the losses depends on the proper starting point. if one
views this as moving from 122 lots encompassing the entire Site, the subdivision is consistent with the
purposes of the Act, because it would allow development that retains more of the character of the
historic landscape and adapts them for current use more than would development following the 1887
subdivision. If one starts by considering the Site to be a single lot, as used by the United States, one
must conclude that the preservation losses outweigh the gain, because the subdivision facilitates the
loss of its significant open space character. But the net loss is not large. The subdivision retains
important elements of the organization of the space. More crucially, the Site could not be reasonably
adapted for current use without a subdivision; it currently has no use at all.

Special Merit

Given the above conclusion that the preservation losses from subdivision slightly outweigh the
project's preservation benefits, at least if the Site should currently be considered to be a single parcel,
the permit for subdivision can be cleared only if the project qualifies as one of special merit. Projects of
special merit possess "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). It is well-established that to clear a permit

10The Site was never a public park. As Emily Eig's expert historical analysis makes plain: "ft was an industrial site. It
was not a public park. It had a walk around it that the public was invited to walk on and to observe the views
across what Olmstead referred to as the plain. He planted trees around the entire walk as an effort to keep people
on the walk because they were not invited to the plain where there were not just the cells were there, but there
were manhole covers throughout the entire 20 acres [open] on a regular basis." Tr.1, at 109-10. What was referred
to a McMillan Park was a smaller public park at the south end of the reservoir, which contained a fountain
dedicated to Senator McMillan. This park was closed and the fountain disassembled in 1941.

13

** JPA.13 **
upon this ground,the Mayor's Agent must first determine whether the project is one of special merit,
then balance the special merit of the project against the preservation losses, and, finally, determine
whether it is necessary to incur such preservation losses to construct a project of special merit. The
Court of Appeals has stated that special merit is a "high standard," and that "factors which are common
to all projects are not considered as special merits." Committee of100 on the Fed. City v. District of
Columbia Dept of Consumer & Regulatory Affairs, 571 A.2d 195, 200(D.C. 1990).

In prior proceedings on these applications, the Mayor's Agent found special merit in the overall
!and use plan and its constituent elements. In vacating those decisions, the Court held "that the Mayor's
Agent's orders do not explain with sufficient clarity which 'specific features of land planning' the
Mayor's Agent relied upon and why those features combined to support a conclusion of special merit."
149 A.3d at 1039. The Court clarified that "a project's special merit could rest in whole or in part on a
combination of features that in isolation would not necessarily rise to the level of special merit." Id.
Having conducted two additional full days of hearings, the Mayor's Agent emphatically reaffirms his
prior conclusion and seeks to give a detailed explanation. The Mayor's Agent finds that the mixed-use
project taken as a whole is a project of special merit because of specific elements of land use planning
and the provision of high priority community and District benefits,

Evaluation of the special merit elements of the Plan must take into account the challenges faced
by the applicants. The McMillan Site is a large parcel of land that has been the focus of competing goals
since it was acquired by the District in 1987. The 2006 Comprehensive Plan embodies these tensions;
while anticipating new development for moderate density housing, retail, and "other compatible uses,"
the sections of the plan directed at the Site also call for substantial open space and recreation facilities,
as well as a design that conveys the site's historic significance. MC-2,6 McMillan Sand Filtration Site. The
applicants have developed a plan with substantial community input and agency comments that not only
satisfies these competing desires but presents a workable and exemplary mixed-use project that will be
a credit to the District.

Here are the specific elements that amount to special merit.

Affordable Housing. The Court of Appeals accepted as uncontroverted the Mayor's Agent's prior
finding that the project's provision of affordable housing in excess of what the law requires was an
element of special merit. 149 A.2d at 1039. This is both a specific element of the Plan for the Site and
significant community benefit having a high priority. As noted above, the Plan provides that 20 percent
of the total residential units will be dedicated to persons earning between 50 and 80 percent of area
median income, with 85 of these units set aside for persons earning between 50 and 60 percent of AMI.
Additionally, nine rowhouses will be conveyed to families earning no more than 50 percent of AMI.
These affordable units are part and parcel of a market rate housing development, creating a mixed
income residential development. Mixed income housing provides social and economic benefits for lower
income residents not provided in exclusively low-income buildings. See In re 2228 MLK LLC, HPA 14-221,
222 at 6(2014), at https:Hrepository.library.georgetown.ed uThanolle/108221761657.

FOMP does not dispute that such affordable housing exceeds what would be required by law,
but complains that the housing does not serve poorer households. While the need for housing in DC for
persons earning less than 30 percent of AMi surely is urgent, it does not detract from the social value of
providing affordable housing for persons marginally less disadvantaged in an expensive housing market.
FOIVI la's additional argument that the applicants' construction of market rate and subsidized housing on

14

** JPA.14 **
the Site will exacerbate the loss of affordable housing in the vicinity exceed the scope of what the
Mayor's Agent is tasked with considering, as it goes beyond whether a project's features contribute to
special merit. As the Court of Appeals explained,"[a] broad focus on the overall benefits flowing from a
project runs beyond the task assigned to the Mayor's Agent." 149 A.3d at 1039. Just as the Mayor's
Agent should ignore a project's "broad benefits," it also need not consider "all of the project's adverse
impacts." Id. at 140. "[T]he Preservation Act assigns the Mayor's Agent the more discrete role of
determining whether one or more specific attributes of a project, considered in isolation or in
combination, rise to the level of special merit." Id. The assertion that the project will drive up
surrounding housing prices speaks neither to the proposed development's public benefits nor to the
historic losses against which those public benefits are to be weighed.11

Recreation and Open Space. The public park at the south end of the Site will contain 6.2 acres of
green space, a 17,500-square foot community center,a 25 meter swimming pool, playground and
"sprayground," amphitheater, pond, and walking museum telling the history of McMillan. Another 1-
acre park, called a "healing garden," will be constructed at the northeastern corner of the Site. The
Comprehensive Plan stresses that the Mid-City area is in "dire need" of parks. D.C. Comp. Plan (Mid-City)
at 20-10."The open space should provide for both active and passive recreational uses, and should
adhere to high standards of landscape design, accessibility, and security." Id., Policy MC-2.E1. This will
be a substantial amenity, which will contribute to the vitality of the entire development and to the
nearby neighborhood. These park and recreational elements are well-integrated into the other uses on
the Site. The residential, retail, and health care use to the north will promote activation of the open
space and other facilities.'2

The Mayor's Agent remains cognizant of the Court's admonition that "the Mayor's Agent should
not have considered the inclusion of a park on the southern portion of the site and the restoration of
certain structures on the site as features contributing to the special merit of the project." 149 A.3d at
1041. In context, however,the Court instructed that the retention of open space should be considered
as an historic preservation benefit and weighed only against preservation losses. Id. The proposed park
does far more than retain the historic open space character of the Site; it will require the construction of
a new landscape and amenity features, including a large community center, swimming, pool and
playgrounds, and the provision of maintenance and supervisory staff. Tr. 1, at 168. The McMillan Sand
Filtration Site is not now nor ever has been a park; it is an inaccessible industrial landscape. The Mayor's
Agent is not "double counting" the benefits of the park and its facilities, but weighing different aspects
of the park under the appropriate headings.

Mixed Use. The Plan calls for a healthy mix of residences, retail, commercial, and recreational
uses. Residents will be able to satisfy many of their needs without leaving the Site; they can walk to

11 To whatever extent such questions must be addressed by the Mayor's Agent, adding subsidized and market
housing to a vacant site will ease the imbalance between supply and demand that drives up prices, which should
offset any boost to prices from making the surrounding community more attractive. Developing the entire Site as a
park, as some opponents suggest, Tr. 2, at 38, could boost area housing prices as much or more without any offset
from increased supply.
12
Opponents argue that the Community Center should not be considered as an element of special merit because it
will be funded by the District. Nothing in the Act supports this distinction. The District is subject to the Historic
Preservation Law's constraints and has the same capacity as any other applicant to propose a project of special
merit.

15

** JPA.15 **
stores, doctor's offices, and recreation facilities. Tr. 1, at 170-72. In addition to the mixed income
elements of the housing discussed above, the Plan provides for housing at different densities, unit sizes,
and demographic preferences (e.g., family rowhouses and senior housing), as well as retail uses
especially desired by the community. Tr. 1, at 143-44. The health care buildings are an integral part of
this mix, because they will bring daytime workers and patients, providing customers for the retail and
visitors for the recreational activities. Testimony was offered that a supermarket would not be viable
without commercial facilities generating daytime customers. Tr. 1, at 233-34. The health care buildings
are a plausible means for bringing commercial development to the Site because of their proximity to the
large aging hospital complex just north of it. There was uncontradicted testimony that no other
commercial use would be viable in that location. Tr. 1, at 232. The economic significance of this will be
discussed below, but considered just as an element of land use planning, the development is important
for the daytime activation of the Site. Having a 24-hour flow of persons on site contributes to public
safety as well as to urban vitality. The applicants also will create a business improvement district or
equivalent management entity and contribute about $1 million over 10 years to improve, activate, and
maintain the public spaces on the Site. Although mixed use development is not unusual — and is in many
cases expected — the delivery of such a wide mix of complementary uses on a large vacant site is unusual
and contributes to the project's special merit. The importance of this achievement is buttressed by
Comprehensive Plan language identifying the McMillan property as one of several large sites where
much of the District's growth in the near term is expected to occur. Framework at 213.5, 215.8.

Site plan and design elements. The HPRB recognized that the site master plan and design
guidelines provided for an "an architecturally cohesive" development. The different buildings will display
a unified palette of colors and textures, compatible building materials, similar fenestration, and simple
shapes and massing. These have been adopted to harmonize with the industrial legacy of the site and
give it a distinct identity. Beyond the historic preservation benefits of such an approach (not being
considered as elements of special merit), these design features differentiate the project from generic
infill development.'The Plan also provides good internal circulation and connectivity to the surrounding
streets. The North Service Court becomes a kind of internal Main Street with generous sidewalks and a
landscaped median. Three new smaller north south streets provide internal circulation. The Plan also
provides for scrupulously environmentally sustainable design, including meeting LEED-Neighborhood
Development Standards at the Gold level or equivalent for the overall project, pervious pavement, bio-
swales, and rain gardens.

Economic Benefits to the District. In its opinion in this case, the Court of Appeals seems to have
revived the notion that special merit can encompass "the projected economic benefit to the city of the
proposed development." 149 A. 3d at 103, citing Rhodes Tavern, 432 A. 2d at 717 n. 13.'4 One must
harmonize this statement with that in Kalorama Heights, that the prospect of increased revenues to the
District was "not in and of itself a 'special merit' within the meaning of the Act." 655 A.2d at 870 n. 6. In

13 The applicants have argued that these design elements fit the special merit category of exemplary architecture.
While they do contribute to the special merit of the project and justly can be considered "exemplary," it seems
more accurate to treat them as "specific elements of land planning." The Mayor's Agent has not seen final designs
for individual buildings, and the value of the design guidelines lies in their creating a cohesive and distinct identity
for the overall development. Of course, the three statutory headings of special merit overlap.
34 In a prior decision in this matter, the Mayor's Agent dismissed economic benefits to the District as an element of
special merit, apparently reading the Kalorama Heights precedent too broadly. FIFA No.14-393, at 7 n.13.

16

** JPA.16 **
Rhodes Tavern, the court pointed both to employment created and to tax revenue. Two qualifications
can be discerned. First, the economic benefit to the city must be "special," meaning exceptionally large.
Second, economic benefit to the city from tax revenues can contribute with other elements to an overall
finding of special merit, but cannot establish it by itself. Both these qualifications are crucial, because
the Historic Landmark and Historic District Protection Act would provide a slender reed supporting
preservation indeed if any increase in District tax revenue would justify demolition or alteration of
designated properties.

In this case, the McMillan project is estimated by the Deputy Mayor's Office to create 3,300 on-
site permanent jobs, 1,100 indirect permanent jobs, and 3,000 construction jobs, This appears to
provide a greater employment benefit than any project ever proposed for special merit consideration.
The extensive employment opportunities, when combined with commitments discussed below to steer
them to District residents, must be counted as contributing to special merit. On the other hand, while
the projected tax revenues attributable to the project of $1 billion over 30 years touch an impressive
number,the applicants have not fully accounted for the value of the District's contributions to the value
of the project from the provision of the land, the development of the park and community center, and
other support.'The net revenue benefit to the District remains unclear.16 That, however, does not
impair the special merit of the projected employment benefit to District residents being leveraged here.
Accordingly, while the applicants have not shown that the tax revenues contribute to the special merit
of the project, they have shown that the employment benefits from the Plan plainly do.

Community Benefits Package. The applicants have committed to a number of initiatives to

employ District businesses and residents in the construction and operation of the development. The
applicants will execute a Certified Business Enterprise Agreement with the D,C. Department of Small and
Local Business Development to achieve at least 35 percent use of such small and local businesses in
construction and maintenance of the project. It has committed to the D.C. Department of Employment
Services to hire District residents for at least 51 percent of the jobs created by the project. They also
have committed well over $1 million dollars for various aspects ofjob training. These commitments
enhance the special merit character of the employment benefits discussed above.

FOMP argues that the elements of mixed use discussed here are ordinary, not special. But the
cases it cites evaluated very different sorts of developments. FOMP lays stress on Kaiorama Heights Ltd.
Partnership v. D.C. De,* of Consumer & Regulatory Affairs, 655 A.2d 865(D.C. 1995), where the court
upheld the Mayor's Agent's rejection of a claim of special merit where a developer wanted to demolish
the former French embassy, a contributing building in the Sheridan—Kalorama Historic District. The
Mayor's Agent and the court agreed that construction of a twelve-unit luxury condominium apartment
building and the tax revenues they would produce did not amount to special merit, because such
benefits would be typical of any new construction. There is a sharp contrast between that ordinary
building development and the rich and diverse basket of special merit elements proposed for the
McMillan Site. The same is true regarding the proposed inclusion of two floors of residences and day

is The applicant's expert witness, Len Bogorad testified that over 30 years the District would realize a net fiscal
benefit after taking account of expenditures of $.874 million. Tr.1, at 241, but upon cross examination explained
that he was not taking into account direct expenditures by D.C. in the development process. Id., at 385
16 NTHP's expert witness Tom Moriarity testified that the District may have contributed too large a percentage of

the costs for the project. He conceded, however,that the district was right to pursue a project that would involve
demolition of underground cells and subdivision. Tr. 2, at 8-9, 21.

17

** JPA.17 **
care center in an office building, which the Court of Appeals rejected as a project of special merit in
Committee of100 on the Federal City v. District of Columbia Dept. of Consumer and Regulatory Affairs,
571 A.2d 195 (D.C. 1990). In both cases, developers merely wished to demolish historic buildings to build
luxurious new ones. More similar to this case is ❑ Street Market, HPA No.07403(2007) at
Fittps:llrepositonblibrary.georgetown.eciahandle710822/761534, where the Mayor's Agent found a
mixed use development including market rate and affordable housing, retail, and parking to be a project
of special merit. The Plan for the McMillan site offers substantially more public benefits than did the
plan for the 0Street Market'?

In this case, the Court of Appeals stated:"Specific provisions in the Comprehensive Plan ... can
play a key role in the special-merit inquiry." 149 A.3d at 1040. The Court quoted experts that had
written:"The more an applicant can tie elements of the proposed project to specific preferred land uses
set out in the D.C. Comprehensive Plan, the more likely it is that the Mayor's Agent will approve the
project under this element of special merit." Ia., quoting Edwin L. Fountain & M.Jesse Carlson, The
"Special Merit" Provision for Demolition or Alteration of Historic Properties Under the District of
Columbia Historic Preservation Act, 5J053 ALI—ABA 531, 539-40(2004). But the court also cautioned
that "such policies must be specifically identified, and the Mayor's Agent must explain why those
policies are 'sufficiently special' as to support a conclusion of special merit." id.

The fulfillment of so many potentially conflicting elements of the Comprehensive Plan support
the Mayor's Agent's finding that the Plan for McMillan satisfies the standard for special merit. Shane
Dettman testified on behalf of the applicants that in regard to "the comprehensive plan the special
merit features of the project will directly advance over 100 policies and actions in all 13 citywide
elements and the mid-city element." Tr. 1, at 301. The Land Use Element for Large Sites, LU 1.2, states:
"During the next 20 years, about 15 percent of Washington's housing growth and 10 percent of its job
growth will take place on ten large sites outside of the Central Employment Area [including the
McMillan Sand Filtration Site'," This portion of the Comprehensive Plan not only specifies that these
large sites must be used to address the needs to accommodate growth in the district but also identifies
several elements desirable for such sites, including mixed uses, benefits for surrounding neighborhoods,
sustainable design, creation of new neighborhoods, extension of street grids and enhanced circulation,
the provision of"public benefit uses," including "affordable housing, new parks and open spaces, health
care and civic facilities, public educational facilities." LU 1.2.1 — 1.2.7. The Mayor's Agent finds that the
Plan for the McMillan Site is special in its accomplishment of these aspirational goals for this important
large site. The applicants propose to create a distinctive neighborhood, carrying forward through design
the industrial identity of an historic but obsolete Site, which incorporates generous elements of housing,
affordable housing, retail, health care, park, and recreation.

The applicants also presented evidence about the Plan advances the Housing Elements of the
Comprehensive Plan, including the provision of housing of different types on vacant land, in new
neighborhoods and in mixed use contexts; the provision of affordable housing in mixed income settings,
while avoiding displacement of current residents; and the creation of neighborhood-based senior
housing. H-1.1.4, 1.1.7, h-i.24, 2.1.3, 4.2.2. The applicants' Plan also satisfies various elements of the
Parks, Recreation, and Open Space Elements of the Comprehensive Plan by creating a new park and

17 In 0Street Market, the Mayor's Agent also considered the historic preservation program on the site to
contribute to the special merit of the project.

18

** JPA.18 **
recreation center. Plan elements advanced include PROS- 1.2.1 (park in an underserved area), 1.3.1
(combining open with space with recreational facilities), 1.4.3(park on large site), 1.4.4 (park on land
not in productive use), MC i.2.4 (park at McMillan).

Balancing Special Merit Elements and Net Preservation Loss

Having found that the Plan proposes a project of special merit, the Mayor's Agent must balance
the value of the special merit elements of the project against the net preservation losses it entails. 149
A.3d at 1041.18 The value of the special merit elements proposed here outweighs the net historic
preservation loss from the project. The analysis to this point already has concluded that the net
preservation loss is small or none. As found above, the historic preservation benefits of the project
outweigh the preservation loss from demolition of most of the underground cells. The preservation
benefits of the project do not outweigh the loss of the open space character of the site, a loss enabled
by subdivision, if the relevant change is considered to be one lot subdivided into seven. If the
subdivision entails assembling 122 lots into seven, the question becomes closer, because the
reassembling of the Site into a few larger lots permits a project generating greater preservation values
than any imaginable from a project working with 122 separate lots. Given the uncertainty of this, I will
proceed on the assumption that the subdivision does create a small amount of net preservation loss.

The question can be posed whether the value of the special merit elements outweighs the net
preservation loss from the project's subdivision to the extent that it impairs of the site's open space
character. The answer to this is clearly yes. This well-planned, visually coherent mixed-use development,
incorporating substantial amounts of affordable housing, and generating significant economic and social
benefits, provides greater public benefits than would more extensive retention of redundant and
inaccessible underground cells and a visually open but obsolete industrial site. This conclusion is
reinforced by the small amount of net preservation loss, given that the development plan retains,
enhances, and adapts for current use most of the significant historic features that convey the historic
character of the site. Even if the preservation benefits of the project do not outweigh the preservation
loss from demolition of the underground cells and are added to the loss of the open space character,the
special merit benefits discussed above outweigh all preservation losses.

Necessity

In its decision to remand the prior finding of special merit in this case, the Court instructed the
Mayor's Agent to focus on whether there were reasonable alternatives that "would achieve the same
special merit benefits of a project while avoiding or reducing the need for demolition or subdivision."
149 A.3d at 1043. The applicants have satisfied this standard. At the remand hearing, the testimony of
Matthew Bell directly addressed this question. He described the evolution of the Plan from 2008 to the
present, showing sketches of several iterations. The first proposal involved building on 19 acres of the
Site; now buildings will cover just 13 acres, allowing for more open space. Over time, the Plan has come
to embrace preservation of more above ground historic structures and underground cells, while gaining
greater visual and operational coherence. The project has been.the subject of over 200 community
meetings; the ANC within which the Site sits has approved the Plan. Various iterations of the project

'
1 heCourt of Appeals disapproved the Mayor's Agent delegating to the HPRB evaluation of whether the
applicants could demolish one of the two remaining cells in considering a final design plan for the Site. 149 A.3d at
1042. That issue now is moot because the applicants have committed to preserving both cells.

19

** JPA.19 **
have been reviewed by the HPRB as new construction on an historic site; changes have been made in
response to suggestions by HPO staff and the Board. The HPRB has enthusiastically approved the Plan
under review for the Site. Bell testified that changes to reduce the scale of the project or reconfigure the
arrangement of buildings to preserve more cells or open different view sheds would materially detract
from one or more special merit elements or decrease the affirmative preservation program. Tr. 1, at
138-39, 159-63. The economic return from the scale of development is necessary to support the special
merit elements of Plan. Tr. 1, at 220.

The record thus amply supports the necessity of the extent of demolition and subdivision.
Additionally, it is relevant to consideration of alternatives that preservation of additional cells or
reducing the number of lots on the Site would have little or no preservation value. I have already found
that the net preservation values of the Plan outweigh the preservation loss from demolition of all but
two underground cells. Given that, there may be no legal ground for considering whether an alternative
plan would preserve more cells. But even if that overstates the case, the preservation of one or two
more identical and inaccessible cells to the project would not materially enhance the historic
significance of the Site. Similarly, reducing the number of lots in subdivision has an indeterminate effect
on preservation values. Fewer lots could contain larger buildings. Objections to the bulk of the health
care buildings have nothing to do with subdivision; they raise zoning issues beyond the scope of the
Mayor's Agent's authority. The site plan proposed by the applicants conveys the historic configuration of
the Site, so changing it could increase the preservation loss.

A plan for development at the McMillan Sand Filtration Site has been actively debated for at
least a decade. "[F]actors including but not limited to cost, delay, and technical feasibility become
proper considerations for determining 'necess[it]y.— Rhodes Tavern, 432 A.2d at 718. Requiring the
applicants to consider more or different alternatives after the long road they have travelled would be
only an exercise in obstruction. The opponents have not suggested an alternative plan with even a
glimmer of plausibility.' The proposed demolition and subdivision are necessary to construct a project
of special merit.

Ability to Complete Project

FOMP argues that the applicants have not shown that they have the ability to complete the
project, so FOMP demands an additional contested case hearing. The gist of their claim is that the health
care facility is economically integral to the entire Plan, and the applicants do not have an anchor tenant
for it. FOMP thus demands that the Mayor's Agent condition any order permitting demolition on the
applicants making several specific showings, including obtaining an anchor tenant and all applicable
licenses for the health care facility. In support, FOMP relies on an order of the Mayor's Agent in a prior
case, in which the Mayor's Agent stated that "the act requires the additional finding that the applicant
has the ability to complete the project." In re 1717-1721 Rhode Island Avenue, NW (St. Matthew's
Cathedral), HPA 1993-237, 1993-237, 1993-238, at 6(Aug. 25, 1993).

1 The only possibility suggested by opponents that prevents loss of the open space character of the Site was that
'
of Anne Sellin for a "park capitalizing on the design's original function, exploiting the original purpose of the park."
Tr. 2, at 38. The District of Columbia, which owns the Site, has consistently opposed using the entire Site for a park,
since it acquired the Site for more than $9 million thirty years ago, and reaffirmed its development purpose in the
unanimous disposition resolution passed by Council in 2014.

20

** JPA.20 **
 The Preservation Act does provide: "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 a permit for new construction is issued simultaneously under section 3 of this act and the owner
demonstrates the ability to complete the project." D.C. Code § 6-1104(h). in this case, the HPRB
approved the plan for new construction more than four years ago, so there is no substantive question
about the issuance of a permit for new construction. HPO Staff Report, HPA 14-393, October 31, 2013.
The language of the statute does not specify that the finding of ability to complete the project should be
decided by the Mayor's Agent as part of clearing the permit. Indeed, the applicable regulations suggest
that the decision normally should be made at the time of the issuance of the demolition permit, in
which case the primary agency would be the Department of Consumer and Regulatory Affairs. See 10-C
DCMR § 411.4 ("When approving a project of special merit, the Mayor's Agent may specify any
documents or assurances the applicant must submit in order to demonstrate the ability to complete the
project, as required for permit issuance.")

Because FOMP has raised the issue and to avoid further delay, however, I now find that
applicants have the ability to complete the proposed project. The applicants provided substantial
testimony about the prospects for the proposed health care facility. Tr. 1, at 212 - 40. Trammel Crow
Company, the VMP partner that will develop it, is the largest health care developer in the U.S., having
developed 150 million square feet of health care facilities over the past two decades with a market value
of $ 3.5 billion. Adam Weers of Trammel Crow persuasively testified that the proposed facility meets a
glaring unmet need in the District for modern medical facilities. The location across Michigan Avenue
from an enormous concentration of aging medical facilities, including the Washington Hospital Center
campus, makes the Site an attractive location for new health care development. Weers admitted that
Trammel Crow did not have an anchor tenant, but ascribed that primarily to the delays in the regulatory
process for this project and expressed confidence that it is "very likely" prospects with whom he has
held discussions will become tenants.

There is no material issue of fact about the financial capacity of Trammel Crow to complete the
health care facility. The likelihood of success for a new health care facility at this time and in this
location, was plainly established. FOMP has not suggested any grounds to suppose that any health law
related permits will be denied. The Act does not require a finding that the proposed project will certainly
be completed, but only that the applicants have the "ability' to complete it. The applicants met that
standard.

Conclusion

Based on the foregoing findings of fact and discussion, the Mayor's Agent finds:

1)The historic preservation benefits of the proposed project outweigh the preservation losses
attributable to demolition of all but two of the underground sand filtration cells. Accordingly, such
demolition is consistent with the purposes of the Act, D.C, Code § 6-1106(e).

2) The preservation losses of the proposed subdivision of the Site slightly outweigh the
preservation benefits of the project, so the subdivision is not consistent with the purposes of the Act.

21

** JPA.21 **
 3) The applicant's project is one of special merit in that it proposes specific, publicly beneficial
elements of land planning and extensive social and economic benefits having a high priority for
community services.

4)The special merit elements of the project substantially outweigh the preservation losses
attributable to demolition and subdivision.

5) The proposed demolition and subdivision are necessary to construct a project of special
merit.

6)The applicants have the ability to complete the proposed project.

Date: April 3,2018 Confirmed:

J. Peter Byrne Eric D. Shaw

Mayor's Agent Hearing Officer Director, D.C. Office of Planning

22

** JPA.22 **
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Order was served this 5th day of April 2018 via
electronic mail to the following:

Vision McMillan Partners LLC

Whayne Quin, Esq.
Holland & Knight LLP
whayne.quin@hklaw.com

Vision McMillan Partners LLC

c/o Mary Carolyn Brown, Esq.
Donohue & Stearns PLC
carolynbrown@donolluestearns.com

District of Columbia Office ofthe Deputy Mayor for Planning and Economic Development
brian.kenner dc.gov
giiles.stucker@dc.gov

Friends of McMillan Park

c/o Andrea Ferster, Esq.
aferster@railstotrails.org

National Trust for Historic Preservation

c/o Betsey Merritt
emerritQsavingplaces.org

D.C. for Reasonable Development

c/o Aristotle Theresa, Esq.
actheresa@gmail.com

Advisory Neighborhood Commission 5E

5E01 @anc.dc.gov
5E02@anc.dc.gov
5E03@anc.dc.gov
5E04@anc.dc.gov
5E05ganc.dc.goy
5E06@anc.dc.gov
5E07@anc.d c.gov
bhoIIidaypsy@gmaiLoom
5E080aric.dc.gov
5E09rit)anc.dc.gov
5E1 Ord.anc.dc.gov

Advisory Neighborhood Commission 1B

I Bcanc.dc.gov

** JPA.23 **
David J. Maloney
District of Columbia State Historic Preservation Officer
david.inaloney@de.gov

Marnique Heath, Chair

Historic Preservation Review Board
Maniique.heath@dcbc.dc.gov

Matthew Lane
Office of the Attorney General
matthew.Iane2@dc„goy

Leah Prescott
Associate Law Librarian for Digital Initiatives and Special Collections
Georgetown University Law Center Library
1p627D1 law.geor etowi .echi

** JPA.24 **
[BLANK PAGE]

** JPA.25 **
 GOVERNMENT OF THE DISTRICT OF COLUMBIA OFFICE
OF PLANNING, HISTORIC PRESERVATION OFFICE
MAYOR'S AGENT FOR HISTORIC PRESERVATION 1100
4th STREET SW,SUITE E650
WASHINGTON,D.C. 20024

OG Nos. 17-317, 17-361; HPA Nos. 17-263, 17-545,17-633

In the Matter of:

Application of Georgetown 29K Acquisitions LLC

West Heating Plant

1051-55 29th Street NW
Square 1193

DECISION AND ORDER

Georgetown 29K Acquisition LLC("G29K" or "Applicant")seeks a permit to demolish a significant

portion of the West Heating Plant("WHP"). This demolition would implement the Applicant's plan to
redevelop the site with new housing and a one-acre public park providing a connection between Rock
Creek Park and the Georgetown Waterfront. The Applicant contends such demolition is permissible
under the Historic Landmark and Historic District Protection Act, D.C. Code §6-1101, et seq., because
the project is consistent with the purposes ofthe Act and is one of special merit. For the reasons stated
below,the permit will be CLEARED.' Additionally, the Applicant has requested that one ofthe historic
preservation covenants in the deed to the WHP be canceled or modified for good cause to allow the
project to proceed. For the reasons stated below,I recommend that the State Historic Preservation
Officer("SHPO")find that there is good cause to modify the covenant.

BACKGROUND

The WHP occupies a significant two-acre, triangular site at the southeast corner of Georgetown. The
site is bounded by 29th Street to the west;the C&O Canal to the north; Rock Creek to the east; and the
Whitehurst Freeway and K Street to the south. The area immediately surrounding the site contains a mix
of residential and commercial uses. The Georgetown Waterfront Park is located to the southwest across
K Street. At one time, the site was the terminus ofthe historic C&O Canal, which operated along 185
miles as an artery ofcommerce between 1831 and 1924. In 1938,the National Park Service(INIPS")
began to pursue the creation of the C&O Canal Park. It purchased the then defunct C&O Canal with the
intention ofrestoring it for use as a recreational park. The property, which is adjacent to Lock 1 and
contained a historic dry dock that was used to repair the canal boats, was included and featured in the
restoration plan.

This opinion will constitute the findings and fact and conclusions oflaw required for decision in a contested case under
the D.C. Administrative Procedure Act, D.C. Code § 2-509(e).

** JPA.26 **
In 1939,the federal government proposed constructing a new heating plant in the northwest section of
the District to serve the burgeoning federal office buildings_ Following much debate, in 1941, the
National Capital Park & Planning Committee concluded that the present site ofthe WHP was the most
appropriate site for the new heating plant, even though the land was then owned by the NPS and
planned for a public park. Construction ofthe West Heating Plant was delayed by the war, but it was
completed in 1948. Designed by William Dewey Foster, a consulting architect to the U.S. Treasury's
Office ofthe Supervising Architect, the structure's Art Modern masonry walls wrap around a coal-
fired a steam heat plant.

For many years, the area of Georgetown between M Street and the Potomac River had been the site of
transportation and industrial operations. In the 1930s and 40s it also housed a predominantly African-
American working-class population, a community that was impacted by the construction of the WHP.
By the time the funds were approved for the construction ofthe WHP,the area south of M Street had
begun transitioning from industrial uses.

The WHP served the federal government as an active heating plant until the mid-1990s and was
decommissioned in 2000. The plant has been defunct and the site abandoned since then, walled off and
closed to the public. However, based upon its architecture and role in the development of Washington,
DC,the WHP is both an individual landmark and a contributing property to the Georgetown Historic
District. It occupies a historically significant and strategic site, at or adjacent to the intersection of the
C&O Canal, Rock Creek Park, and the Potomac River.

In September 2012,the General Services Administration("GSA")declared the WHP to be "excess

property," and announced its intent to put the Property up for auction. The GSA held an online auction
for the WHP,and G29K was the winning bidder when the auction ended on March 6,2013. As part of
the Section 106 review, pursuant to the National Historic Preservation Act, 54 U.S.C. 300101, et seq.,
GSA concluded that the transfer ofthe Property would include covenants consistent with federal
preservation requirements. Accordingly, GSA,in consultation with the SHPO,included a Historic and
Cultural Preservation Covenant in the deed to the Property, which states:

1. Any alteration,restoration, rehabilitation, demolition, or modification of existing structures

on the property, and any development or new construction in the property, shall be in
compliance with applicable local historic preservation law and consistent with the
recommended approaches set forth in the applicable sections ofthe Secretary of Interior's
Standards for the Treatment of Historic Properties with Guidelines for Rehabilitating
Historic Buildings(U.S. Department of the Interior, National Park Service, 1992), as the
same may be amended from time to time;

2 Any alteration, restoration, rehabilitation, demolition or modification ofexisting structures

on the property, and any development or new construction on the property shall be subject
to the written approval ofthe SHPO, which approval shall not be unreasonably withheld,
conditioned or denied;

3. In the event of a violation of any provision of the Historic Preservation Covenants, the
SHPO may,following notice to Grantees and a reasonable opportunity to cure,institute

** JPA.27 **
 suit to enjoin any such violation and obtain any appropriate legal or equitable remedies to
require full and immediate compliance with the Historic Preservation Covenants described
herein; and

4. The Historic Preservation Covenants shall be binding in perpetuity; provided, however,

that the SHPO may,for good cause, modify or cancel any or all ofthe Historic
Preservation Covenants upon written request ofGrantees.

On June 20,2013,the Applicant took title to the Property, pursuant to the deed containing the
covenants_

The Applicant assessed the structural and environmental condition ofthe WHP,and, as discussed in
greater detail below, discovered significant structural degradation and environmental contamination.
Both conditions present significant health and safety hazards that require extensive remediation
when the site is redeveloped.

The Applicant's plan converts the WHP into a 10-story residential condominium building adjacent
to a new one-acre public park, which occupies the site of the former coal yard. Most of the exterior
of the WHP is proposed to be demolished, based on the Applicant's findings of significant
environmental contamination and structural weakness. The new residential building will rise from the
retained stone base and mirror the massing and height ofthe WHP. Although the 29th Street facade of
the building will be retained, the north and south facades will be reconstructed with a new metal
screen wall mechanism composed of operable shutters and braced frames, intended to evoke the
industrial heritage of the WHP. The building's east elevation will be rebuilt to feature a predominantly
glass facade overlooking Rock Creek Park, with balconies creating an inversion ofthe historic design.
The proposed building has been designed by Sir David Adjaye, who designed the Museum ofAfrican
American History and Culture on the National Mall and several striking District of Columbia public
library buildings.

The Applicant's plan also proposes to construct a new public park on the one-acre site ofthe WHP's
coal storage yard. This park has several exceptional features: Designed by the nationally regarded
landscape architect, Lorrie Olin, the park will connect Rock Creek Park with the Georgetown
Waterfront. A new bridge will link the C&O Canal Park and Rock Creek Park to the north to the
rehabilitated path along the Property's east side, providing a direct pedestrian and bicycle connection
between the new bridge and the Georgetown Waterfront Park to the south. The deteriorating seawall on
the east side of the Property along Rock Creek will be rehabilitated to further enhance the new park and
path, and to create open space access where none currently exists. In addition to the Applicants
construction and opening of the park to the public, the condominium association for the residential
building will be responsible for maintaining the park in perpetuity. Thus, the park will provide a
significant public amenity to the broader community without the District of Columbia bearing the
burden of the land acquisition, design, construction, or maintenance ofthis public park.

In addition to the redevelopment of the WHP site as described above, the Applicant has committed to
provide other significant public benefits as part ofthe project:

(1) Financial support of Georgetown Heritage's effort to restore the C&O Canal trail;
(2) Financial and project management support to Mount Zion Methodist Church for restoration of its
3

** JPA.28 **
historic cemetery;
(3) An interpretative on-site exhibit on the industrial heritage of Georgetown,specifically including
the C&O Canal and its barges;
(4) A significant monetary contribution — at least $2.8 million — for the development of affordable
housing; and
(5) Documentation ofthe WHP site's history in a report that will be donated to the D.C. Public
Library's Peabody and Washingtoniana Collections.

PROCEEDINGS

The project has been reviewed by the Old Georgetown Board, the U.S. Commission of Fine Arts, and
the D.C. Historic Preservation Review Board. The Commission ofFine Arts("CFA")reviewed the
concept design for the WHP project pursuant to the Old Georgetown Act. Under the Old Georgetown
Act,CFA shall make a recommendation regarding historic compatibility to the Mayor before the
Mayor can issue a permit for construction or alteration in the Georgetown Historic District. D.C. Code
§ 6-1202. At its September 20,2017 meeting, CFA reviewed and voted unanimously to recommend
approval ofthe project's conceptual design; CFA does not make a specific recommendation about
demolition.

Subsequently, in accordance with the applicable provisions ofthe Act.,the Historic Preservation
Review Board("HPRB")reviewed the applications for partial demolition ofthe WHP and conceptual
design at public meetings on November 2,2017 and April 26,2018. The HPRB found that the
proposed demolition ofthe WHP is inconsistent with the purposes ofthe Act D_C_ Code §§ 6-1104 &
6-1107. It also found that the project design does not follow the recommended approaches in the
Secretary's Standards, and that repair, or if necessary, in-kind reconstruction ofthe brick facades, is a
technically feasible response to irreparable deterioration. At the same time, the HPRB urged the
Mayor's Agent to allow design flexibility, found that the conceptual design achieves "meaningful
preservation," and concluded that in replicating the existing building's height the proposed building
height remains compatible with the Georgetown Historic District.2

The Applicant requested a hearing before the Mayor's Agent to pursue its claim that the proposed
partial demolition is necessary to construct a project of special merit and,in the alternative, the
demolition is consistent with the purposes ofthe Act. Hearings were held on July 16 and 17, 2018.3 In
addition, the Mayor's Agent was asked to provide a recommendation to the SHP° on the issues
relevant to the Section 106 covenant,including the Applicant's request to modify it.4 The District of
Columbia Preservation League("DCPL") was recognized as the only party in opposition to the

2 More specifically, HPRB "did not find the concept 'attempts a compromise that is architecturally unconvincing and does
not achieve meaningful preservation."'
3 The transcripts ofthese hearing are cited as "Trl" for the July 16 hearing and "Tr2" for the July 17 hearing.
Per a memorandum from Jennifer Steingasser, Deputy Director ofthe Office of Planning,to Brian Kenner, Deputy Mayor
for Planning and Economic Development dated October 23,2015,the Mayor's Agent shall make a determination about the
Covenants for the Director ofthe Office ofPlanning, who in his capacity as advisor to the SHPO,shall provide guidance to
the SHPO that the SHPO will implement them. Accordingly, the Applicant requested that the Mayor's Agent find, based on
the evidence in this case, that there is good cause to modify Covenant No. 1, and advise the SHPO to modify the first
Covenant. Similarly,the SHPO, by memorandum dated June 6,201$,requested "that the Mayor's Agent consolidate review
ofthe Applicants' special merit and covenant requests into the scheduled hearing, and that the Mayor's Agent provide a
recommendation to the SHPO."

** JPA.29 **
application. The Citizens Association of Georgetown("CAG")and Friends of Georgetown Waterfront
Park("FOGWP") were recognized as parties in support of the application.

G29K presented the following witnesses in support ofthe project and the application for partial
demolition and modification of the Covenants: Emily Eig ofEHT Traceries, Inc., who was recognized
as an expert in historic preservation; Joel Silverman, who was recognized as an expert in structural
engineering; Laurie Olin, who was recognized as an expert landscape architecture; Sir David Adjaye,
who was recognized as an expert in architecture; Andy Altman, who was recognized as an expert in
urban planning; Robert Peck,former head of GSA, who was recognized as an expert in public policy;
Roger Lewis, professor and land use commentator, who was recognized as an expert in architecture;
Richard Levy ofThe Levy Group;Peter Armstrong ofthe Georgetown Company; professor and
architectural critic Paul Goldberger, recognized as an expert; and former Mayor Anthony Williams.
Kevin Brandt ofthe National Park Service; Jennifer Ronun board chair of Georgetown Heritage; Dr.
Thomell Page from Mount Zion United Methodist Church; and Walter Groszyk, a neighbor, also spoke
in support ofthe project and the application for partial demolition.

CAG presented the following witnesses in support ofthe project and partial demolition: Pam Moore;
Victoria Rixey; and Richard Hinds.FOGWP presented Steve Crimmins as a witness in support of the
project and partial demolition. The affected Advisory Neighborhood Commission 2E testified in
support ofthe application

DCPL presented the following witnesses in opposition to the project, partial demolition, and modifying
the Covenants: Rebecca Miller ofDCPL; John Sandor, who was recognized as an expert on the
Secretary's Standards and Kevin Sperry, who was recognized as an expert in architecture. Lauren
McHale of the L'Enfant Trust also testified as an expert on easements.

In addition to the testimony reviewed below, several District residents offered thoughtful statements
both in support of and in opposition to the application.

The Applicant and DCPL both submitted proposed findings offact and conclusions oflaw on August
31,2018.

DISCUSSION

Special Merit

The Act authorizes the Mayor's Agent to grant a permit to demolish a protected historic resource if
doing so is "necessary in the public interest." D.C. Code § 6-1105(e), That requires either that the
demolition be consistent with the purposes ofthe Act or necessary to construct a project ofspecial
merit. Id,§ 6-1102(10). "Special merit means a plan or building having significant benefits to the
District ofColumbia or to the community by virtue of exemplary architecture, specific features ofland
planning, or social or other benefits having a high priority for community services." Id., § 6-1102(12).

Prior decisions ofthe D.C. Court of Appeals and ofthe Mayor's Agent establish the three steps by
which special merit cases should be decided. First, the Mayor's Agent must decide whether the project
meets the criteria ofspecial merit,that is, whether it meets the standards set out in the law. A project of
special merit may be combination of a number of features:"A project's special merit could rest in

** JPA.30 **
whole or in part on a combination offeatures that in isolation would not necessarily rise to the level of
special merit." Friends ofMcMillan Park, et al. v. District ofColumbia Zoning Comm'n, et al., 149
A.3d 1027, 1039(D.C.2016).

If the project meets the criteria for special merit, the Mayor's Agent next evaluates whether "the
specific aspects ofthe project that provide 'sufficiently special' benefits" outweigh the "historical value
of the landmark."Id. at 1041-42; see also Committee of100 on the Federal City v. D.C. Department of
Consumer and Regulatory Affairs, 571 A.2d 195, 200(D.C. 1990)("the balancing ofthe historic value
of the Woodward Building against the special merits ofthe project could not proceed until the Mayor's
Agent found that the amenities proposed by S.J.G. were sufficient to constitute a project of special
merit"); Citizens Comm. To Save Historic Rhodes Tavern v. D.C. Department ofHousing and
Community Development,432 A.2d 710, 715-16(D.C. 1981)("the Act implicitly requires that, in the
case of demolition,the Mayor's Agent balance the historical value ofthe particular landmark against
the special merit ofthe proposed project"). Finally, ifthe balance favors the applicant, then the
Mayor's Agent must determine that the demolition is necessary for the project. To prove necessity, an
applicant is not required to show that there are no other feasible alternatives, but it should show that all
reasonable alternatives were considered. Friends ofMcMillan Park, 149 A.3d at 1042(quoting Citizens
Comm. To Save Historic Rhodes Tavern,432 A.2d at 718). Factors that warrant "necessity" include
cost, delay, and technical feasibility. Id.

In this case, it can hardly be contested that the project is one of special merit because of specific
features ofland planning and the profusion of important community benefits. Steve Callcott,the
experienced Deputy Head ofthe Historic Preservation Office repeatedly testified that the special merit
question in the case was relatively easy. Tr2 at 16,34,58. The conversion ofthe polluted and
inaccessible coal yard to a well-designed public park, provided to and maintained for the residents of
the District at no cost is a significant community benefit. Jennifer Steingasser, the Deputy Director of
the D.C. Office ofPlanning for Historic Preservation and Development Review testified that the
proposed park advanced key elements ofthe D.C. Comprehensive Plan for the site and the plan of the
National Capital Planning Commission for Georgetown parks, and also fulfilled them beyond what
could have been required: "It's the enhanced design and commitment to keep the park open to the
public at the expense of the private property that provides the significant public benefit." Tr2 at 6-7.
Andrew Altman,former Director of the Office ofPlanning, described the park as an "exquisitely
designed, open-space ensemble [destined] to become one ofthe great, iconic and enjoyed parks of our
city and region." Trl at 195. Representatives of community organizations and the ANC also praised the
park as an important community benefit. Trl at 255-56,265,279-80.

The connectivity the park will provide between Rock Creek Park, the C &0 Towpath, and the
Georgetown Waterfront Park constitutes a valuable element ofland use planning, as Jennifer
Steingasser testified. Kevin Brant ofthe National Park Service underscored the importance ofthe
planned bridge that will connect the new public park with the C&O Canal trail and Rock Creek Park:
"Connecting this new park to the canal towpath and the Rock Creek Trail will be an important amenity
to all visitors." Trl at 147. Accordingly,the exceptional land planning aspects ofthe project contribute
significantly to the special merit of the project. DCPL did not dispute the importance ofthis park.

Additionally, the Applicant will make significant monetary contributions for public benefits for
restoration of the C&O Canal, and rehabilitation of the Mt.Zion Cemetery, both of which are located

** JPA.31 **
within the Georgetown Historic District, and affordable housing.5 While these community benefits
individually would not meet the threshold for special merit, combined with the extraordinary public
park they contribute to an impressive special merits package

DCPL argues expensive condominium residence never be constructed as a project of special merit.
project of special merit. Putting aside the veracity of this statement — the Mayor's Agent has certainly
found a project that includes a substantial upscale residential component to be one of special merit
(e.g.In re The 0 Street Market., HPA No.2007-103) — there is no legal reason why a luxury residential
building should be precluded from being part of a project ofspecial merit. In Kalorama Hgts. Ltd.
Partnership v. DCRA, 655 A.2d 865, 874 (1996),the Court of Appeals wrote:"We do not preclude the
possibility that an office building or an apartment complex may have 'special merit' if it provides
particular "social or other benefits" that can be said to offer'community services' for persons other
than those who primarily inhabit or work in the buildings." Here, the residential building will provide
the funds for the park and other special merit features. As discussed below, any economically viable
use ofthe WHP will require extensive demolition.

The special merit of the project clearly outweighs the net loss in historic preservation. The land use
improvements and community benefits expected here are very substantial and strongly supported by
the community. A new, well-designed park at the site, connecting crucial public historic resources, the
Rock Creek Park, the C & 0 Canal Park, and the Georgetown Waterfront, enriched by a perpetual
obligation to support maintenance of the park, has extraordinary public value. The emphatic support for
the project by the ANC and by Georgetown civic groups testify to this. The $2.8 million contribution
for affordable housing augments this public value, even if it could not have provided sufficient weight
in itself.

The Court of Appeals has instructed that the Mayor's Agent should weigh special merit elements
against net preservation losses. Here the plan anticipates demolishing seventy percent ofthe existing
structure but retaining WHP's height, bulk, and massing, which preserves the site's organization.
Moreover,the plan calls for preserving and restoring most of the WHP's western facade, the rusticated
brick `quoining' on the western facade and returns on the north and south facades,the ashlar rubble
stone base, and the stone wall surrounding the WHP's perimeter. The Applicant also offsets the
preservation losses in part with design elements in the park that will reference the historic canal dry
dock on the site, the WHP's machinery yard, and the industrial history of Georgetown.

The WHP today is dangerous, toxic, and inaccessible. Its exterior is a thin brick shell with limited steel
supports that had surrounded a coal burning boiler. It is cracked and corroded. It also is heavily
polluted with toxic chemicals, including asbestos, PCBs,and mercury. The current structure is a

5 DCPL's contention that these payments for affordable housing and historic preservation projects should not qualify as
aspects ofa special merit project elevates form over substance. CI Koontz v. St. John's River Water Mgt. Dist, 570 U.S.575
(2013)(treating monetary exactions as equivalent to exactions of interests in real property). As in monetary exactions as used
in the development process more generally, it is essential that the special merit payments be committed to appropriate
projects. Below are listed conditions on the clearing ofthe Applicant's permit intended to ensure that the funds are paid as
promised.
6 The redesign ofthe WHP by David Adjaye also was repeatedly lauded by community members as creating a new visual
highlight at the entrance to Georgetown and architect Victoria Riley, who has chaired the Historic Preservation Committee
ofthe Citizen's Association of Georgetown,testified that Adjaye's redesign constituted "exemplary architecture." Trl at 274.
For reasons never clarified at the hearing, the Applicant never argued that the project met the special merit standard on the
basis ofexemplary architecture.

** JPA.32 **
hazardous shell, however architecturally significant its facade design, and must be substantially
demolished to be adapted for any contemporary use. For this conclusion I rely on the Wiss Janney
Report, Ex. 18, and the convincing testimony ofJoel Silverman. Tr1 at 89 —106. DCPL did not
seriously contest this evidence, but argued that the Applicant should restore the facade in a manner
closer to the current design.

WHP was designated a landmark because ofits exterior design, illustrating a transition from Art
Moderne to Modern styles and their application to industrial structures and because it illustrates the
growth of federal buildings in Washington, which necessitated a new heating plant.?

Although the HPRB found that WHP merited the protection ofthe Act as a landmark,the Mayor's
Agent must make some determination ofthe degree of significance a landmark enjoys in order to assess
the preservation loss to be balanced against the special merit of the proposal. Here,the architectural
history values are real, although WHP is not critical to illustrating the growth of the federal government.
The noted architectural critic Paul Goldberger opined: "[The WHP]is not a critical part of our
architectural history." Tr1 at 182. It is striking that the Georgetown community groups, which could
hardly be characterized as "indifferent to historic preservation"(id.), unanimously testified that the
values ofthe project outweighed the loss ofthe elements of the WHP. The ANC enthusiastically
supported the special merit ofthe project and its "long-sought community benefits" as compared to the
limited value of the WHP in its present condition,3 Trl at 254. CAG testified that it believes that the
WHP should not have become an individual landmark,and it recognized the significant community
benefits that are much greater in value than the WHP.Trl at 268, 279. Similarly, FOGWP testified that
the WHP "is not something that's cherished by our community that needs to be preserved" and stated
that the fulfillment of parkland on the Property is a significant community benefit of greater value than
the WHP. Tr1 at 289, 294. Also, it should be noted that WHP was built on land that the National Park
Service had acquired to be the terminus ofthe C&O Canal National Park,thus thwarting a historic
preservation project of great significance.9 Georgetown Heritage testified in the hearing that "the
transformation ofthe West Heating Plant site is important to [our] efforts to revitalize the Canal Park."
Trl at 299.

Thus, while there surely will be preservation losses from the partial demolition ofthe WHP,they are not
as great as they might be for a more significant landmark. Moreover,there are preservation benefits that
lessen the overall net loss, so that the special merit benefits ofthe project clearly outweigh the net
preservation losses.

https://planning.dc.E.,
,Ovisites/defaultifiles/dc/sites/op/publication/attachments/West%2OHeating%20Plant%20Nomination%20
2017_0.pdf. The 11PRS refused to designate WHP as a landmark in 2015,but on a new application did designate it in November
2017.
For purposes of the Mayor's Agent's analysis, the condition of the building does not factor into the assessment of the
building's historic significance.
9 The Applicant presented testimony by former Mayor Anthony Williams that the placement of the WHP within a
predominantly African American residential neighborhood was an act of environmental racism, a contention that DCPL
disputes. If that historical assertion could be documented, it should affect the weighing ofthe preservation value ofpreserving
more ofthe facade design ofthe WHP,although the prior decisions ofthe Mayor's Agent do not indicate a method or standard
for doing so. In this case, although WHP generated a great deal of pollution that would have impacted nearby residents, the
assertion of environmental racism was not proven. Still, this contention highlights the importance of historic preservation
considering the perspectives of all people.

** JPA.33 **
Finally, the partial demolition is necessary to construct the project of special merit. First,the historic
coal yard, which is part of the designated landmark, must be demolished in its present form or
transformed in order to construct the new park. Second,the evidence clearly established that much ofthe
plant itself must be demolished to make it structurally capable ofadaptive reuse, as discussed above,,
because it is permeated with toxic chemicals and is structurally unsafe.lu Third, the success ofthe new
residential building is obviously necessary to financially support the special merit elements ofthe
project, which will be expensiw.I1 The WHP was designed to be a power plant, not a residence; its
exterior is austere, with limited fenestration and the brick skin is a thin shell supported by steel trusses.
Some changes need to be made to the exterior design ofthe building in order to develop viable
residences. The parties in this case disagree more about the extent of the retention ofthe existing design
elements of the facade than about the demolition at issue in the special merit determination. That topic
will be addressed below in considering the extent to which the preservation covenant attached to the site
should be modified or cancelled.

Historic and Cultural Preservation Covenant

The Historic and Cultural Preservation Covenant pursuant to which the WHP was transferred provides
that the SHPO can "modify any or all" the individual covenants for "good cause." It further provides
that approval of any proposal for redevelopment ofthe property "shall not be unreasonably withheld,
conditioned or denied." The SHPO has delegated the task of considering a waiver to the Mayor's Agent
and has committed to following the Mayor's Agent's decision on the matter. Letter from David L.
Maloney,SHPO,to the Mayor's Agent(June 6, 2018). The parties have been unable to cite and the
Mayor's Agent is aware ofno precedent for what constitutes good cause to waive such a clause, and the
SHPO suggests that the Mayor's Agent's decision in this case would have no practical precedential
significance, because the District ofColumbia would not accept in the future the conveyance of any
property from the federal government with such a waiver clause attached, because there is too much
difficulty in interpreting it. Tr2 at 21-22.

Applicants seek relieffrom Covenant One, which requires: "Any alteration, restoration, rehabilitation,
demolition, or modification of existing structures on the property, and any development or new
construction in the property, shall be in compliance with applicable local historic preservation law and
consistent with the recommended approaches set forth in the applicable sections ofthe Secretary of
Interior's Standards for the Treatment ofHistoric Properties." The problem for the Applicant here is that
the Secretary's Standards provide that historic material and design should be retained and repaired to the
extent feasible and that when replacement is necessary character-defining elements should be "replaced
to match the historic feature based on physical or historic documentation of its form and detailing." The
Standards and associated Guidelines expressly disapprove of"removing a masonry feature that is

l° DCPL's argument that the proposed public benefits are not"unique" to this project both exaggerates the applicable
standard, which is whether the demolition is necessary to construct a project ofspecial merit, and ignores that the demolition
is necessary for any adaptive reuse of the plant. Similarly, when it suggests that the public benefits could be achieved by a
project designed with greater fidelity to the historic design, DCPL ignores that under the required special merit analysis, if, as
in this case, the demolition is necessary,the question is whether the special merit benefits provided by the project outweigh
the preservation losses. Ifthey do, the demolition must be approved. An applicant could reduce the preservation losses by
rebuilding in-kind post-demolition, but that is not required.
1' Kevin Brant of the National Park Service testified that a 1986 NPS plan for the Georgetown Waterfront Park envisioned
converting the entire WHP site to a park, which would have involved the entire demolition of the heating plant, "but the
practical and financial challenges of that plan rendered our original aspiration an impossibility." Trl at 146.

** JPA.34 **
unrepairable and not replacing it, or replacing it with a new feature that does not match, using substitute
materials for the replacement that does not convey the same appearance of the surviving components of
the masonry feature." Thus, to the extent feasible, materials that cannot be retained and repaired must be
replaced by materials that look like the replace materials. Read literally, the Secretary's Standards would
require that the residential building look just like the heating plant building.

The proposal that the Applicant has brought forward clearly does not meet the Secretary's Standards.
The design presented by Sir David Adjaye seeks to convey the history ofthe building both through
retention or duplication of material in many respects but also an interpretation through new design
elements that attempt to invoke the structural and use history ofthe building while creating a striking
design that will serve as a visual monument and function as a successful residential building. Adjaye's
testimony demonstrated the care with which he had reinterpreted the building, evoking non-literally its
structure and former use. Architecture critic Paul Goldberger testified that the Adjaye design would
create "one ofthe most meaningful pieces of contemporary architecture in Washington that skillfully
honors the spirit, if not the literal form in every way, of a memorable, but difficult, building." Trl at
186-87. Planning and architectural expert Roger Lewis testified that "the proposed physical
transformation ofthe historically landmarked site and plant structure wisely and creatively blending
preservation and new construction is technically and economically realistic, culturally and contextually
appropriate and, of equal importance, aesthetically compelling." Trl at 228.

DCPL advocated for greater adherence to the Secretary's Standards. While it did not signal support for
an earlier design that retained more ofthe features ofthe existing WHP,DCPL argued that the earlier
design had shown that greater fidelity to the original design was practicable.

Steve Callcott speaking for the 1-1130sought to take a middle position. He recognized that some
deviation from the Secretary's Standards was needed to develop a viable residential building with
adequate windows but urged that ongoing consultation with Applicant could result in a design that
would retain more of the existing design features of the WHP,which would be more consistent with the
goals ofthe Historic Preservation Act. The HPO's views were closer to those ofthe HPRB,which had
asked the Applicant to provide a design closer in specific elements to the existing WHP,than that ofthe
CFA,which had rejected the literalism of an earlier design as sterile and approved enthusiastically of the
Adjaye proposal.

Upon consideration of all the testimony and other evidence,there is good cause to modify the covenant
in this case to the extent necessary to allow the proposed demolition and construction ofthe design
shown on the plans submitted to the Mayor's Agent on June 29, 2018. The federal government conveyed
the WHP with the understanding that the District of Columbia has a sophisticated historic preservation
law,a committed preservation community, and fair public processes for addressing preservation
disputes. The finding that a project is one of special merit would seem to provide a reasonable basis for
modifying Covenant One to allow the project to be built. Here the special merit elements ofthe project —
the well-designed park and other community benefits — require a successful conversion ofa coal-burning
plant to a residential building. The removal of the existing and toxic material from the site are plainly
encompassed within this. But the Applicant should be permitted to build a design that can successfully
function economically as a residential building.

But the applicant has done much more than that. The applicant has brought forth a stunning design by a

10

** JPA.35 **
world acclaimed architect, who already has earned special regard for his previous buildings in the
District. The design he has proposed for the site may achieve an aesthetic and cultural significance
exceeding that of the existing WHP. However, because the Applicants did not offer "exemplary
architecture," as part of its special merit case,the Mayor's Agent did not hear opposing views about the
architecture and will not make a finding about it.

The role ofthe Mayor's Agent is not normally to review the design of a project, which is better entrusted
to the expertise ofthe HPRB. In Georgetown, however, design review is under the purview of both
HPRB and CFA (delegated to OGB). Both entities make a recommendation to the Mayor about whether
she should issue a permit for construction. DCMR 10C § 401.3. The Mayor is not obliged to take one
recommendation over the other, and both have equal standing. Mr. Callcott stated that the Mayor's
Agent has authority to accept the CFA recommendation as approving a design that was aesthetically
superior to that of more literal preservation approaches as good cause for modifying Covenant One. Tr2
at 54. Thus,I accept the conclusion ofthe CFA, which unanimously "commended the design's approach
of extending a preservation sensibility beyond the retention of historic building material to the
expression of other defining qualities — such as mass,structural character, and industrial heritage."

ACCORDINGLY,the permit to demolish the WHP as proposed is hereby CLEARED,subject to the

following conditions:

(1)Before issuance of any use and occupancy permit, the pedestrian and cycling bridge, restoration of
the pathway along Rock Creek on the east side ofthe property, rehabilitation ofthe seawall along the
east side ofthe property, and the public park must be constructed as shown on the plans submitted to the
Mayor's Agent on June 29,2018;

(2)Before certificate of occupancy issuance for the entire building,the Applicant must record an
instrument or instruments, in a form approved by Counsel for the DC Office of Planning, that provides
for public access to the park and for the property owner to pay for the maintenance ofthe park in
perpetuity;

(3)Before issuance of any building permit,the Applicant must make the proffered payments to
Georgetown Heritage and Mount Zion Church Cemetery;

(4) The Applicant must contribute no less than $2.8 million and no more than $4.3 million to support
the provision of affordable housing in the District, as follows:

(a) Before building permit issuance,the Applicant must pay $1.4 million into the D.C. Housing
Production Trust Fund;

(b) Before certificate of occupancy issuance for the entire building, the Applicant must pay an
additional $1.4 million to the D.C. Housing Production Trust Fund; and

(c) To the extent that 1% ofthe gross sales for the entire project exceeds a total of$2.8 million, the
Applicant must pay 1% ofthe additional amount of gross sales, up to a maximum additional
payment of $1.5 million, with the first $250,000 ofthis amount to be paid to LISC DC and the
remainder, up to $1.25 million, to be paid to the D.C. Housing Production Trust Fund. This

11

** JPA.36 **
 payment must be made by the sooner of60 days within the(1) date ofthe closing on the last
residential unit or(2)date when the total sales result in an additional payment of$1.5 million.
Before certificate of occupancy issuance, the Applicant must enter into a surety agreement with
the DC Office of Planning, in a form approved by the Office's counsel, reflecting these
requirements. The agreement must include a performance bond or other form ofsurety in the
amount of$L5 million.

(5)Before certificate of occupancy issuance, the Applicant must donate documentation ofthe WHP
site's history to the D.C. Public Library's Peabody and Washingtoniana Collections.

(6) Any changes to the design shown in the September 20,2017 concept plan shall be submitted to the
HPO for review who may refer substantive changes to the HPRB for review. The HPRB shall review
any changes or alterations to facilitate compliance with this order while ensuring that its quality of
design and materials is maintained. Any change to the project or design that would materially alter the
preservation value or public benefits must be approved by the Mayor's Agent.

FURTHER,for the reasons explained above,I recommend that the SHP° MODIFY the Historic and
Cultural Preservation Covenant to the extent necessary to allow the proposed demolition and
construction ofthe design shown on the plans submitted to the Mayor's Agent on June 29,2018.

Date: January 11, 2019

Confirmed:

J. Peter Byrne Malaika A. Scriven

Mayor's Agent Hearing Officer Mayor's Agent's Designee12

"Andrew Trueblood, who as the Interim Director of the DC Office ofPlanning serves as the Mayor's
Agent, but who in his previous role as Chiefof Stafffor the Deputy Mayor for Planning and Economic
Development was privy to discussions about certain aspects ofthe planned redevelopment of West
Heating Plant, has delegated his authority to act in this matter to Ms. Scriven to avoid any appearance
that the decision might be based on ex pane information.

12

** JPA.37 **
 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Order was served this 11th day of January 2019 via
electronic mail to the following:

Georgetown 29K Acquisitions LLC

do Allison C. Prince
Goulston & Storrs
1999 K Street NW,Suite 500
Washington, DC 20006-1101
APrince@goulstonstorrs.com

Citizens Association of Georgetown(CAG)

do Richard Hinds
Cleary Gottlieb Steen & Hamilton LLP
2000 Pennsylvania Avenue NW,Suite 9000
Washington, DC 20006-1801
rhinds@cgsh.com

D.C. Preservation League(DCPL)

do Michael Pfeifer
Dentons US LLP
1900 K Street NW
Washington, DC 20006
m ike.pfeifer@dentons.com

Friends ofthe Georgetown Waterfront Park(FOGWP)

c/o Stephen J. Crimmins
1077 30th Street NW
Washington, DC 20007
seri min i ns a min la w us.com

Advisory Neighborhood Commission 2E

3265 S Street NW
Washington, DC 20007
anc2E@dc.zov
2E01@aEtc.dc.gov
2E02@anc.dc.gov
2E03@anc.de.gov
ov
2E05@atic.dc.aav
2E06@anc.de.gov
2E07@anc.cle.gov
2E08@anc.dc _goy

David J. Maloney
District ofColumbia State Historic Preservation Officer
david.malonevAdc.gov

** JPA.38 **
Marnique Heath, Chair
Historic Preservation Review Board
Marnique.heatli@dcbe.dc.eov

Leah Prescott
Associate Law Librarian for Digital Initiatives and Special Collections
Georgetown University Law Center Library
1pG276plaw.aeorgetown.edu

** JPA.39 **
[BLANK PAGE]

** JPA.40 **
 MAYOR'S AGENT FOR HISTORIC PRESERVATION
1100 4TH STREET SW, SUITE E650
WASHINGTON, D.C. 20024

HPA Nos. 14­393 and 15­133

In the Matter of:

Application of Vision McMillan Partners, LLC, 
and the District of Columbia Office of the Deputy Mayor for Planning and Economic 
Development (“the Applicants”)

2501 (2507) First Street NW, McMillan Park & Reservoir, Square 3128, Lot 800

Submitted by DC for Reasonable Development on November 1, 2017

DC FOR REASONABLE DEVELOPMENT'S 
FINDINGS OF FACT AND CONCLUSIONS OF LAW
HPA CASE NOS. 14­393 and 15­133 

Introduction 

DC for Reasonable Development has participated as a party to the Mayor's Agent remand 
hearings, contesting the “malformed context of the issues described by the Mayor's Agent in [his] 
orders.” DC4RD submission, July 7, 2017.

DC for Reasonable Development (“DC4RD”) is an unincorporated non­profit association located 
in the District of Columbia and consisting of members who initiated the Save McMillan Action 
Coalition (“SMAC”), a campaign to stop the demolition of McMillan Park.  See Exhibit 1.

McMillan Park is an historic site enjoyed now by DC4RD:SMAC members, some of whom 
helped register the site on both local and national cultural resource lists, as well whom seek to 
protect the personal and property interests of those members living and working around 
McMillan Park.  DC4RD:SMAC members meet in person and on line to direct and assist the 
work of DC4RD facilitators, with instant accountability provided by organizational bylaws which 
allow members to recall leadership at anytime. See Exhibit 1.

DC4RD comes now with the draft Findings of Fact and Conclusions of Law with Exhibits 1, 2, 3 
attached.

[rest of the page blank]

** JPA.41 **
~~~ DRAFT ~~~

MAYOR'S AGENT FINDINGS OF FACTS AND CONCLUSIONS OF LAW 
HPA Nos. 14­393 and 15­133

Findings of Fact

1. The McMillan Park Reservoir Historic District (Historic District) includes the McMillan 
Reservoir, built from 1883­1888, the McMillan Slow Sand Filtration Plant (Plant), which 
in 1905 was completed as the District of Columbia’s first water treatment facility, and 
McMillan Park (Park) which was constructed from 1908­1913. Construction of the 
Reservoir was completed in 1888, of the Plant in 1905, and of the Park in 1913. The areal 
extent of the Reservoir, Plant, and Park, including adjacent lands thereto are within the 
McMillan Reservoir Historic District. National Register of Historic Places Program 
Listing , Reference No. 130002, Listed 02/20/2013.

2. The Park, designed by America’s foremost landscape architect, Frederick Law Olmsted, 
Jr., was landscaped as a public park and memorial to the late Senator James McMillan 
from Michigan. His Senate DC Parks Commission advocated for the establishment of the 
park, adjacent to the area popularly known at the time of the Park’s construction, as 
McMillan Reservoir. Id. 

3. In 1906, Secretary of War, William Taft, designated the Washington City Reservoir and 
The Filtration Plant as McMillan Park Reservoir. Until its fencing in 1941 and denial of 
public access, the DC African­American community enjoyed a huge range of recreational 
activities, as all other DC parks were segregated. McMillan is an important DC African­
American cultural site, the only integrated park in Washington, Bloomingdale seniors 
recall it as “their beach” and “it was our paradise”.  Interview with Ms. Ella, longtime 
Bloomingdale resident, https://www.youtube.com/watch?v=X0iqLezE6G0

4. McMillan Reservoir was designed and constructed as an extension to the Washington 
Aqueduct, which supplied water from the Potomac River via a gravity fed aqueduct from 
Great Falls on the Potomac River to the Georgetown area of the District of Columbia. 
National Register of Historic Places Program Listing , Reference No. 130002, Listed 
02/20/2013.

5. In 1882, the Army Corps of Engineers began construction of a tunnel from the 
Georgetown Reservoir through Rock Creek to a new reservoir in order to extend the water 
supply to the population in the eastern part of the District of Columbia (‘City’). Id.

6. That new reservoir, the Washington City Reservoir, was renamed McMillan Reservoir in 
1906 (Reservoir). Id. 

** JPA.42 **
7. After construction of the Reservoir, Congress approved the establishment of a Slow Sand 
Filtration water system to filter and purify the City’s water prior to distribution. The 
intent of the system was to enhance the potability of the water, eliminating water borne 
diseases in the District. Id. 

8. The water filtration facility, the McMillan Slow Sand Filtration Plant, was completed in 
1905 immediately adjacent to and east of the McMillan Reservoir. Id. 

9. After completion of the Plant, water was pumped from the Reservoir to  slow sand 
filtration beds, i.e. vaulted and sand­filled subterranean structures built of unreinforced 
concrete, where water was cleansed and thereafter piped to an underground clear 
reservoir before being distributed  within the  City. Id. 

10. In 1986, a chemical treatment facility on the reservoir side of the Plant replaced the Slow 
Sand Filtration Plant and that Plant ceased operation. When it ceased operations, the sand 
filtration plant was one of the last working examples of the slow sand filtration method in 
the United States.  Id. 

11. After the chemical treatment facility became operational, in 1986 the entire parcel 
containing the McMillan Slow Sand Filtration Plant (the Site), c. 24.69 acres, was 
declared as surplus to the needs of the United States Corps of Engineers and the General 
Services Administration of the United States (GSA) was asked to dispose of it. McMillan 
Park Committee v. National Capital Planning Commission (D.C. Cir. 1991) 

12. In 1987 title to the Site was conveyed by quitclaim deed (1987) from the United States (by 
and through GSA) to the District of Columbia. At the time of the conveyance by the 1987 
Deed it was known by the GSA, United States government officials and employees, 
residents of the City,  D.C. citizen groups representing residents living nearby the parcel 
and others, and officials and employees of the District of Columbia’ that the parcel 
conveyed by the 1987 Deed could be eligible as an historic property for inclusion on the 
National Register of Historic Places.

13. The 1987 Deed contains numerous covenants that “run with the land at law as well as in 
equity...” and are binding upon the District of Columbia and its successors­in­interest and 
assigns.  See agency record.

14. The Deed covenants mandate that processes, procedures, analyses, and specified 
preservation standards will be applied to and conducted for any and all plans and 
specifications for renovation, rehabilitation, demolition, or new construction planned for 
the subject parcel. 

15. The 1987 Deed requires that the D.C . Historic Preservation Officer (HPO or ) ensure that 
any and all renovation and rehabilitation work “... shall be undertaken in accordance with 

** JPA.43 **
 The Secretary of the Interior’s Standards for Rehabilitation and Guidelines for 
Rehabilitating Historic Buildings (‘The Secretary’s Standards’). The 1987 Deed further 
requires that upon review of any and all preliminary and final plans by the D.C. Historic 
Preservation Officer (HPO) to determine whether he/she agrees that they are in 
accordance with The Secretary’s Standards’, and if the disagreement cannot be resolved, 
the District of Columbia shall immediately request the comments of the Advisory 
Council For Historic Preservation in accordance with 36 CFR 800. 

16. At time of the conveyance of the Site to the District a chain link fence prevented the 
public from having access to all or most of the Site. The fence was constructed sometime 
during WWII or shortly thereafter to secure the water filtration facility from sabotage and 
access by National enemies and the public’s foes.   The fenced area included the elevated 
Olmstead Walk, set back along the perimeter of the Site and associated landscaping, all of 
which was previously accessible to the general public. 

17. The Historic Resources Report, as required by the 1987 Deed, documented that the Plant 
and Park Site had numerous historic resources and is eligible for the National Register of 
Historic Places. In 1991, the District of Columbia listed the McMillan Site on the D.C. 
Register of Historic Places. 

18. Later, in 2012 the District of Columbia nominated and then registered the entire c. 92­
acre parcel, including the McMillan Reservoir, including the 25­acres of the former Slow 
Sand Filtration Plant and Park Site, and  adjacent acreage of the McMillan Reservoir for 
inclusion on the National Register of Historic Places as the  McMillan Reservoir Historic 
District. 

19. In February 2013 the McMillan Park Reservoir Historic District, including the Plant and 
Park Site, was elevated to national relevance when it was listed on the National Register 
of Historic Places and remains on the National Register today. 

20. Back in 2006 the District of Columbia’s Deputy Mayor for Planning and Economic 
Development (DMPED) issued a formal request for a proposal from a developer to 
partner with District of Columbia in the development of the former McMillan Plant.  In 
2007, DMPED selected Vision McMillan Partners (VMP) as the master developer, in 
partnership with the District of Columbia, to plan and develop the former McMillan Plant 
and Park Site. 

21. Later, in 2015, the Office of the DC Auditor filed reports that show a sleight of hand gave 
VMP the rights to vertical development of the site without any competition, in 
contravention of the law.  DC Auditor, Letter to the Council, October 19, 2015.

22. On November 22, 2013 the District of Columbia, the current owner of the Site, and its 
partner VMP, LLC filed an application with the Zoning Commission for the District of 
Columbia for a first stage and consolidated planned unit developments (PUDs) and a 

** JPA.44 **
 related map amendment for rezoning of the northern portion of the Plant and Park Site. 
The application is for a major redevelopment project at the McMillan Slow Sand 
Filtration Plant and Park Site. Separate applications seeking authority to demolish historic 
structures on the Park Site, i.e. including 18­plus of the 20 underground sand filtration 
beds at the Site, and for subdivision of the site into seven distinct parcels was also filed. 

23. Applications, based upon the Master Plan for the VMP Project at the Plant and Park Site, 
are pending for approvals by the Zoning Commission  and  by the D.C. Office of 
Planning, D.C. Historic Preservation Office and Mayor’s Agent,  for construction of the 
proposed VMP Project, and provides for the demolition of historic resources at the Plant 
and Park Site, and provides for subdividing the Site into seven distinct parcels. 

24. The Master Plan proposes to demolish all but two of the 20 remaining underground vaults 
through which water used to flow through sand, on the grounds that they cannot safely 
support the planned surface construction.  The underground vaults are remarkable and 
unusual spaces, approximately one acre each and containing two hundred columns 
supporting groined arches. Only the entirety of Cell 14 will be preserved as an example of 
the resource type.  A portion of Cell 28 is planned to be demolished for the construction 
of the new Community Center, only preserving a few "groin vaults", not an entire Cell, to 
let people look at that small section, representing an entire 1 acre Water Filtration Cell.  

25. On October 31, 2013 the D.C. Historic Preservation Review Board, determined, after its 
review of the Master Plan for the proposed VMP development, that the proposed PUD 
project does not meet the Secretary of the Interior’s Standards for Rehabilitation and 
Guidelines for Rehabilitating Historic Buildings because, inter alia, the proposed project 
will result in substantial demolition of character­defining features at the Site and the 
redevelopment will compromise the open­space quality of the Site. 
                                                                    
26. On January 22, 2015, Historic Preservation Review Board found that subdivision of the 
Site into multiple parcels for the purpose of redevelopment is not compatible with the 
goal of retaining and enhancing the McMillan Site as a Landmark listed on the D.C. 
Register of Historic Places. 

27. The 1987 Deed provided that if the realty conveyed by the 1987 Deed is found to be 
eligible for the National Register of Historic Places, prior to the initiation of any work at 
that parcel, the D.C. Historic Preservation Officer is to review and approve any and all 
plans for renovation, rehabilitation, demolition or new construction ” in accordance with 
the Secretary’s Standards...”. 

28. The 1987 Deed specifies and requires that the District of Columbia Historic Preservation 
Officer (HPO) ‘agree’ that any and all preliminary and final Plans and specifications for 
proposed work for rehabilitation, renovation, demolition and/or new construction at the 
Site shall be “in accordance with the Secretary of the Interior’s Standards...”’. 

** JPA.45 **
29. The 1987 Deed specifies that if the HPO disagrees and the disagreement of the District of 
Columbia Historic Preservation Officer is not resolved, the District of Columbia is 
required to immediately request the comments of the Advisory Council for Historic 
Preservation (Council) in accordance with 36 CFR Part 800. 

30. The VMP applications for VMP Master Plans, proposed  PUD Project for the Plant and 
Park Site, and requests for subdivision and rezoning of the Plant and Park Site  are all 
within the meaning of “any or all preliminary or final plans or specifications for work”, 
as specified in the 1987 Deed. Id.

31. The Applicant's proposed project at McMillan Park includes multiple buildings standing 
at more than 100 feet tall and located within close proximity to the above ground historic 
assets and cultural resources along the north and south service courts at the site. 

32. All witnesses in this case, including those of the Applicant, testified that if the proposed 
project were to be constructed, one of the historic characteristics of the Site, it's historic 
vistas and viewsheds in all directions, and especially from the north to the south and from 
east to west would be significantly blocked or outright eliminated by the proposed tall 
buildings in the proposed subdivided northern and center parcels. See Mayor's Agent 
Transcript May 18, 2015, page 102, 119, 183, inter­alia. 

33. The D.C. Historic Preservation Officer has not agreed that any preliminary or final plans 
and specifications for the proposed VMP  Project (PUD Project) is in accordance with the 
Secretary’s Standards, and the District of Columbia did not immediately request the 
comments of the Council in accordance with 36 CFR 800 regarding that matter.

34.  Council Chairman, Phil Mendelson in a letter dated May 16, 2012 submitted to the 
Historic Preservation Review Board and thus can be found on that record for review by 
the Mayor's Agent that states, "...enthusiasm for development must be tempered against 
the qualities of this unique site... ." The Chairman described the threatened qualities as 
the, "structural resources, landscape resources, and historic vistas."  DC4RD's July 1, 
2015, submission to the Mayor's Agent.

35. In a July 3, 2012 letter to the HPRB, the National Association for Olmsted Parks stated, 
"The proposed development plans would also destroy the character defining visual and 
spatial relationships that are central to the original design intent for the site," and asks the 
City to "… reject the misguided master plan that will destroy the irreplaceable historic 
resources of this significant cultural site." DC4RD's July 1, 2015, submission to the 
Mayor's Agent.

36. In a letter dated November 7, 2014, to the National Capital Planning Commission by the 
Executive Director of the Lincoln's Cottage, it states, "...our visitors not only see the 
views of downtown Washington, ... but these views are central to our interpretation of 
President Lincoln's Cottage and the surrounding landscape." "The nightime views of the 

** JPA.46 **
 illuminated Capital Dome currently available to our visitors are especially impressive and 
impactful... [views] which would be negatively impacted by the proposed development." 
"Destruction of that connection to Lincoln's view ­­ the symbol of democracy he worked 
to maintain ­­ would be a significant loss." Lincoln's Cottage as recently as the summer of 
2017, maintains how important this historic viewshed is by public announcements in the 
form of tweets.  See DC4RD's July 1, 2015, submission to the Mayor's Agent, as well as 
all DC4RD submissions in the 2017 remand hearings.

37. The plans or specifications for work relating to and for the VMP Project (McMillan PUD 
Project) at the Plant and Park Site, are not in accordance with  The Secretary’s Standards. 

38. The Applicant put on testimony from Mrs. Eig, an expert in preservation, that shows 
contradictions.  In 2010, and 2013, Mrs. Eig was concerned about the characteristic of 
open contiguous space at the site, and warned of the “intrusion” of the high­density 
hospitals to the north onto the McMillan Park site.  The intrusion is cast aside later on 
when VMP's plan places a medical services and office building at the crown of the 
historic site.  Further, all adulation of the character­defining open and green aesthetic of 
the site referenced in Eig's earlier reports are missing in later reporting and testimony on 
the zoning and Mayor's Agent records, such as those reports dated to 2016 and 2017.

39. The proposed project includes more than 500 new units of luxury housing, mostly for 
single professionals, about 2000 new parking spaces, and about 1 million square feet of 
new commercial, retail, and institutional uses. See Zoning Case No. 13­14. 

40. Nearly all of the existing and intact below ground water vaults will be demolished in 
constructing the proposed new commercial, residential, and institutional buildings. Id. 

41. The Applicant has not provided substantiated rationale on any agency record as to the 
project or alternatives thereof cannot preserve and reuse more of the underground water 
cells at McMillan Park, especially those identified by experts as having the most 
structural integrity. 

42. The Applicant portrays McMillan's underground historic assets as in dire straits, yet this 
position does not flow from evidence on the record.  The efficacy of the site and site 
conditions reports and maps prepared by the Applicant and put on the instant record 
shows that integrity of the the site and underground water cells remain largely the same as 
it did from when the city produced a structural conditions map and report back in 2000 
and again in 2002. See Office of Planning Report, February 2002.

43. Both the zoning record and the instant record demonstrates that the Applicant has created 
a self­imposed hardship (without disclosing the financials) in order to dispense with 
meaningful alternatives that preserves as many of the underground historic water cells as 
possible, and in spite of acknowledging how beautiful and important these cells are to the 
historic fabric and nature of the whole site. 

** JPA.47 **
 44. The Applicant's case before the Mayor's Agent has conflicting testimony by experts.  On 
one hand the Applicant's structural engineer states that the historic waterworks may 
collapse at any moment, but then admits that DC Water has had no fear as such in re­
purposing Cell 14 to collect rainwater (including the cutting of a hole into the structure of 
the cell's structure and foundation for new inflow/outflow pipes). DC Water, Video, 
October 10, 2013, “Renewed Purpose – The McMillan Project” located publicly online at  
https://www.youtube.com/watch?v=KeN9xe4Wo4Q

45. The Applicant cannot point to any evidence as to how Cell 28 is proposed to be physically 
calved in half without it collapsing given the Applicant's aforementioned understanding 
of the integrity of the site and in spite of the fact that Cell 28 sits near and above the Tiber 
Creek waterway (the maps show the waterway as a key contributing factor to structural 
damage at the site). 

46. Both the instant record and zoning record indicate the Applicant and city planners fail to 
acknowledge that Tiber Creek runs underneath the site now and will be a determining 
factor in the planning of any future project at the site. See zoning and historic 
preservation and Mayor's Agent records.

47. The record lacks analysis of the ways in which the proposed project will disturb the 
historic Tiber Creek waterway, risking impacts to the surrounding community and 
imperiling nearby historic properties and the community as a whole.  See Barragan1 and 
Johnson2 testimonials (Johnson Exhibit 3).

48. The zoning record shows that the Commission does not evaluate what families, elders, 
children, and small business in the community surrounding McMillan Park are more 
vulnerable to environmental  health impacts and displacement brought on by the proposed 
project, which as described above is essentially a new high­density village within the city. 
See records in ZC Case No. 13­14 & HPRB and Mayor's Agent Cases.

49. Both the instant record and the zoning record demonstrates that neither the Applicant nor 
the Commission and planning agencies could verify or acknowledge the volume of 
vehicular and pedestrian traffic that will be derived by the proposed high­intensity 
project. Id. 

50. The Applicant does not demonstrate how the volume of vehicular traffic will affect the 
already failing traffic intersections around McMillan Park, or affect pedestrian safety.  Id.  

51. The zoning record shows that city agencies, like the Fire Department or FEMS could not 
explain how the anticipated increase in traffic may affect emergency response time to the 

1 Claudia Barragan, FOMP expert urban planning witness 
2 Edward M. Johnson, Edward M. Johnson & Associates, P.C., DC4RD:SMAC expert architect and planning 
witness

** JPA.48 **
 surrounding community. Id.

52. The Department of Transportation could not explain how added street signs, more stop 
lights, and a few hundred extra feet of road will mitigate the sheer volume of traffic the 
project will bring to the area around the site, especially in lieu of a terror attack or natural 
disaster. Id.

53. The zoning record lacks any analysis of the proposed project, plus the aggregate of the 
area projects, against climate change modeling pursuant to city policies and common 
sense.  Id.

54. The Applicant ignores city policies that discourage the siting of medical service centers 
within areas known to flood, such as at and around McMillan Park. Id.

55. The record shows no baseline studies of existing levels of stormwater runoff and other 
hyrdrology issues at McMillan Park now, versus projected levels of percolation and runoff 
from the site post construction and how this may affect the surrounding community. Id.

56. The environmental and gentrification evaluations and reporting on both agency records 
are either regional and citywide in scope, completely missing study of potential adverse 
health, environmental, and social effects on residents in the adjacent impacted 
communities in Wards 1 & 5. Id. 

57. A Census­tract level report of the local communities around McMillan is missing from 
the zoning record and evaluation of local demographics to understand who may be more 
vulnerable to development impacts is avoided entirely by the Applicant and planning 
officials. Id. 

58. The zoning record indicates that the choice of McMillan as a location for a new medical 
service center and office space neglects evaluation of impacts on the low­rise family 
housing in the immediate area ­­ no noise studies, no mitigation of increased refuse and 
rodents, omission of a land use compatibility study (high­density commercial vs. low­
density residential), no evaluation of land value destabilization brought on by conflicting 
land uses, etc. Id.

59. The record lacks explanation of how the over concentration of medical services in the 
area around McMillan Park including the proposed  Parcel 1 building, can in any 
meaningful way comply with the city's objectives to seek equitable provision of citywide 
medical services. Id. 

60. Both agency records lack any appreciative understanding of the cumulative impacts of the 
series of nearby Ward 1 and Ward 5 projects, large projects expecting thousands of new 
residents, thousands of hotel rooms, millions of square feet of retail, and commercial 
space. See Johnson testimony.

** JPA.49 **
 61. Both agency records show that planning consideration of the multiplier­effect from the 
aggregate area developments is de minimis as it relates to adverse affects on public transit 
ways, pedestrian safety, public services like infrastructure and community facilities, and 
the environment, and as to increasing gentrification pressures. See Barragan and Johnson 
testimonials. 

62. The agency records show that a whole neighborhood approach was eschewed by the 
Applicant and planning officials by not identifying, let alone even acknowledging a 
baseline understanding of existing levels of infrastructure and community facilities 
serving the area around McMillan Park now so to plan for and mitigate adverse affects on 
existing infrastructure and community facilities and services, or to determine associated 
public capacity needs that will be required to serve residents living and working within 
the new project as well as to continue to adequately serve the existing area now after the 
project may be built.  Mr. Johnson especially demonstrates the lack of this type of 
comprehensive review in light of the cumulative impacts of the numerous developments 
happening nearby in Ward 1 and Ward 5 will be injurious to all the surrounding 
neighborhoods.  See Johnson testimony. 

CONCLUSIONS OF LAW

The Mayor's agent adopts the facts above and all facts, citations and evidence as relayed to the 
record by Friends of McMillan Park and DC for Reasonable Development's Save McMillan 
Action Coalition.  Especially important are the facts, evidence and conclusions from DC4RD's 
July 1, 2015, submission to the Mayor's Agent record, Exhibit 2, revisited.

The Mayor's Agent concludes that the Applicant's proposed project deviates from so many 
fundamental city planning policies, particularly as it relates to mitigating impacts of the project 
on the surrounding community as not to be a special benefit at all, and seriously inconsistent 
with the DC Comprehensive Plan.   Further, the historic resources at McMillan Site cannot be 
demolished, period, pursuant to the 1987 Deed Covenants that permanently ride with this land 
and property.

The Covenants are the premier authority in this matter

As part of and in lieu of the application of the Section 106 process of the National Historic 
Preservation Act of 1964, the General Services Administration of the United States provided 
conditions/covenants in the 1987 Deed conveying the Plant and Park Site to The District of 
Columbia, that  would enable the proposed conveyance to proceed without being considered an 
“undertaking” pursuant to the NHPA, supra, and subject to application of Section 106 of that Act, 
thereby avoiding substantial delay that might be caused by the NHPA Section 106 process.  16 
U.S.C. Sec. 470 et seq., 470f (October 15, 1966).

** JPA.50 **
To that effect, the 1987 Deed included covenants “running with the land at law as well in equity, 
and are binding upon and inure to the benefit of the successors and assigns of the District of 
Columbia, and all present and future persons or entities owning or having an interest in said 
portion of the McMillan Reservoir …”. 1987 Deed, page 5. 

Among the covenants that so apply are ones requiring the DC HPO be consulted during the 
development of any and all plans and specifications for the renovation, rehabilitation, demolition, 
or new construction planned for the McMillan Plant and Park Site, and any and all final plans 
and specifications for work will be submitted to the District of Columbia HPO for review and 
approval prior to implementation. * * * Any and all rehabilitation and renovation work at the 
parcel will be undertaken (is required) in accordance with “The Secretary of the Interior’s 
Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings” (Standards).”  

The Deed provides that upon review by the District of Columbia HPO, and the in the case that 
the  SHPO does not agree with the preliminary or final plans and specifications for work at the 
Parcel as in accordance with the ‘Standards’, and the disagreement cannot be resolved, the 
District of Columbia shall immediately request the comments of the Council (Advisory Council 
on Historic preservation) in accordance 36 CFR Part 800.  

During its Master Plan Review for the VMP conceptual design review for the proposed 
development at the Plant and Park Site,  the DC Historic Preservation Review Board recognized 
the foregoing preservation covenants are attached to the property and concluded that the Project 
will result in substantial demolition of character­defining features at the Plant and Park Site and 
will compromise the open­space quality of the site, and the SHPO concludes that the Project 
does not meet the Secretary’s Standards and advises the District to forward the plans to the 
Advisory council for comment. Steve Calcott Report to HPRB dated October 31, 2013. 

The Master Plan, providing concept design for the VMP Project is not in accordance with The 
Secretary’s Standards, as admitted by the HPRB/ DC HPO/SHPO, has never been forwarded to 
the Advisory Council, and may not proceed as planned, including the demolition of character­
defining features at the Plant and Park Site, including but not limited to 18 of the 20 sand 
filtration beds.

The Mayor’s Agent for Historic Preservation does not have the authority to approve the 
demolition of any character­ defining features at the Plant and Park Site, i.e. any of the 20 sand 
filtration beds. The Secretary’s Standards preclude the demolition of the filtration beds or other 
historic features. In this matter for this Site, the Deed covenants require compliance with the 
Secretary’s Standards. The Standards do not allow demolition of historic resources. See Ron 
Gluck testimony dated September 18, 2017, Exhibit E; codified at 36 CFR 67. 

The Standards create a baseline requirement for work at the Plant and Park Site that cannot be 
undermined, undercut, or lessened by application of the ‘special merit project 
exception/exemption’ provided in the Historic Landmark and Historic District Protection Act 
(Act). 

** JPA.51 **
The Act existed at the time of the 1987 conveyance but is not provided in the Deed as an 
applicable standard for proposed work at the Site.  If the United States wished to provide an 
exception allowing demolition or other work that would adversely affect historic resources at the 
Site, it could have provided that in the Deed. It did not provide that authority in the Deed. 
Consequently, the “special merit project’ exception of the Act that may authorize demolition of 
historic resources simply does not apply at this Site. 

Further, the subdivision fails the riding covenants as well, and as Mayor's Agent, I too deny the 
application to sub­divide the Plant and Park Site. 

First, since the SHPO concludes and admits that demolition of historic resources, and the 
compromise of the open­space quality of the site is not  in accordance with the Secretary’s 
Standards, sub­division of the site to accommodate the Project should then by transitive 
association also be rejected as at this time.  This is because the demolition and subdivision 
cannot occur pursuant to the ‘special merit project’ exception of the Act as outlined above.

Equally important is the fact that the covenants in the 1987 Deed run with the land in perpetuity 
and are binding upon all successors in interest. It is incumbent upon the Mayor's Agent to 
determine that the covenants can be practically implemented to the actions of successors­in­
interest because both present and any future sub­division cannot be rendered meaningless 
through subdivisions and future conveyances, particularly when separate parcels have different 
owners and different structures thereon.

Poor Land Use Planning Highly Inconsistent with Fundamental Policies of the DC 
Comprehensive Plan

Beyond the strict rule of the covenants forbidding any of this work as proposed by the Applicant, 
the woeful planning associated with this project by the Applicant and city planning apparatus is 
highly inconsistent with the DC Comprehensive Plan, DC Zoning Regulations and the law 
governing such planning and regulations.

Starting with the basics, the Mayor's Agent credits DC4RD's concerns that planning officials and 
the Applicant aren't transparently coordinating to determine how the 1st Street Tunnel project 
impairs the use of the touted green space that exists now on the southern end of the site is telling. 
The size of manhole cover and off­gassing grates and DC Water access points and the extent by 
which they will be visible in the “park” and perhaps impact the use of the park is still largely 
unknown, and has been downplayed on the record in renderings and in testimony. Along with this 
is the disappearance of the beneficial south court water features, without much open 
rationalization. This fails with Comprehensive Plan Policy E­3.4.2: Transparency of 
Environmental Decision­Making, inter­alia.

The Mayor's Agent adopts the facts and evidence by those in opposition, including DC4RD in in 
my conclusion that the lack of fundamental environmental, health, and social impact analysis 

** JPA.52 **
associated with this project, especially on those who live and work in the area around McMillan 
Park is shockingly appalling.  

Action PROS­2.1.B: Needs Assessments and Demographic Analysis
Policy HP­1.1.3: Cultural Inclusiveness
Policy LU­1.2.6: New Neighborhoods and the Urban Fabric
Policy MC­2.6.3: Mitigating Reuse Impacts
Policy LU­2.3.2: Mitigation of Commercial Development Impacts
Policy LU­2.3.1: Managing Non­Residential Uses in Residential Areas
Policy LU­1.4.1: Infill Development
Policy UD­2.2.7: Infill Development
Policy UD­2.2.9: Protection of Neighborhood Open Space
Policy HP­2.4.3: Compatible Development
Policy UD­2.3.3: Design Context for Planning Large Sites
Policy UD­2.3.4: Design Trade­offs on Large Sites

Further, the refusal by the Applicant and planning agents to understand the baseline levels 
existing now of the surrounding air quality, noise, water quality, refuse, rodents, and capacities of 
infrastructure, transit ways, community facilities, emergency response time, and other public 
services is deeply disturbing.  

Further, there is absolutely no commitment by the private interests involved in this development 
to equitably share the costs of upgrading the area infrastructure, or to defray the costs of 
including more public service capacity at local schools, libraries, senior centers, social service 
centers, and the like.  And, the over concentration of medical services in this area while other 
parts of the city suffer with limited healthcare for families and children is unacceptable.  

Policy E­4.1.3: Evaluating Development Impacts On Air Quality
Policy E­4.3.5: Noise and Land Use Compatibility
Action E­4.3.E: Measuring Noise Impacts
Policy IM­1.1.1: Mitigation of Development Impacts
Policy IM­1.1.3: Relating Development to Infrastructure Capacity
CSF­4.1 Police Facilities and Services
Policy CSF­4.2.1: Adequate Fire Stations
Action CSF­4.2.A: Level of Service Monitoring
T­4.1 EMERGENCY PREPAREDNESS, TRANSPORTATION, AND SECURITY
Action T­4.1.C: Emergency Evacuation Plan
10A­DCMR­419 T­4 SAFETY AND SECURITY
Policy CSF­4.2.3: Responsiveness to Demographic Change
Action CSF­4.2.A: Level of Service Monitoring
Policy CSF­2.1.1: Primary and Emergency Care
Policy CSF­2.1.6: Health Care Planning
10A­DCMR­1207 EDU ­1.5 PLANNING FOR THE LONG­TERM FUTURE 
Policy CSF­1.1.1: Adequate Facilities

** JPA.53 **
Policy CSF­1.1.2: Adequate Land
Policy IN­1.2.2: Ensuring Adequate Water Pressure
Policy IN­5.1.1: Adequate Electricity
Policy IN­6.1.3: Developer Contributions
Action IN­6.1.B: Coordination Of Infrastructure Upgrades
Policy T­1.1.2: Land Use Impact Assessment
Policy IM­1.1.6: Studies Preceding Zoning Case Approvals
DCMR­10A­2502.5, “To the greatest extent feasible, use the development review process to 
ensure that impacts on neighborhood stability, traffic, parking and environmental quality are 
assessed and adequately mitigated.”

The Whole Neighborhood Approach has been unfairly thrown out the window by planning 
officials and the Applicant here. Policy H­1.4.6: Whole Neighborhood Approach, “Ensure that 
the construction of housing is accompanied by concurrent programs to improve neighborhood 
services, schools, job training, child care, parks, health care facilities, police and fire facilities, 
transportation, and emergency response capacity.”  The land use planning witnessed above 
cannot be claimed as one deserving special merit.

The Mayor's Agent credits DC4RD's evaluation of the pitiful affordable housing component of 
the project.  The Applicant says less than 20% of the housing units are affordable, with fewer 
than twenty five of those units being built to house families.  DC4RD's math shows even less 
than 20% of the gross floor area (how affordability is measured upon by law) is being labeled as 
affordable in this project.  Moreover, the limits to affordability, especially for families, flies in the 
face of critically central Comprehensive Plan policies requiring a substantial amount (51%+) of 
housing on former public land be affordable as well as policies that seek to achieve at least 30% 
of new housing units as affordable for families so to build inclusive and successful 
neighborhoods.  This concern about inclusivity and to avoid displacement is extended to existing 
commercial entities around McMillan Park as well.

Policy H­1.2.4: Housing Affordability on Publicly Owned Sites
Policy H­1.3.1: Housing for Families
Policy MC­1.1.7: Protection of Affordable Housing
10A­DCMR­217 MANAGING GROWTH AND CHANGE: GUIDING PRINCIPLES
Policy ED­3.2.6: Commercial Displacement
Action ED­3.2.A: Anti­Displacement Strategies

The lack of affordability, both residential and commercial  in this project as a ratio of the new 
luxury units and modern commercial space being built cannot be characterized as one of special 
merit in any way in light of the Comprehensive Plan policies listed above, among others.

The planning and zoning apparatus by and through the Office of Planning and Zoning 
Commission were required to conduct a “comprehensive public review” that considers “potential 
adverse affects” of the project “on the surrounding area” which can be “capable of being 
mitigated” through conditions in the Order. 11 DCMR § § 2400.3, 2403.3, 2403.8.  

** JPA.54 **
These laws and the Comprehensive Plan policies show that the land use planning in this matter 
does not give rise to a project of special merit, rather it mistakenly approves a high­intesnity 
project that will significantly injures the historic site and those who live and work in the 
surrounding area, and completely ignores the riding covenants.

Given the above facts and law, I, as Mayor's Agent cannot approve the demolition and 
subdivision that is before us in these cases.

So Ordered on _________________________ by the Mayor's Agent. 

[rest of the page is blank]

** JPA.55 **
Findings of Fact and Conclusions of Law as submitted by DC for
Reasonable Development on November 1, 2017, with attached
exhibits.

Regards, 
/s/n
Chris Otten, co­faciliator 
DC for Reasonable Development 

I, Chris Otten, attest that this Response was served electronically on all parties and officials in  
this case.

/s/n
Chris Otten, co­faciliator 
DC for Reasonable Development 

** JPA.56 **
[BLANK PAGE]

** JPA.57 **
 R.6848 Qt -17k
4 Rag*

Advisory
Council On
Historic RECIllWED
Preservation
AUG 21 1990
The Old Poll DaIce 2 usidtnir
nno Fer..-sylvanie Avenue. :: •aci9
U.S. Attorney's Office
washins:nn. DC:0004 For the District of Columbia

56 2 9 IEa

mr. B. C. :-'al.tby
Acting Director
Disposal Division
General Services Administration
75 Spring Street, S'
Atlanta, CA 303U3

REF: T:sosfer or Sale of Approximately Z5 Acres of Laid

1-f...:1!ilIan Reservoir
Was- 4- too, D.C.

Dear r.r

It has come to our it:en:Loci that the referenced project say have an effect
on the Reservoir, a property that may be eligible for the Rarioeal
Register of 'n :tor le Plates. We understand t•. - zt the property was recently
declare:: rmize .- -7 by the Corps of Engteeers, and that GSA has assumed the
of disposing of the Nita.

The transfer at hand involves only a portion of the Mthillan aeservoir.

Mocdever, is would appear that an assessment of the entire reservoir is
tacesaary to determine the relationship of the transfer parcel to the
reservoir coce;:r.:z as a whole. *'hen compiling background information on the
site, 74.7 shc:L. attempt to determine its lam= use history; Shen it uas
develo:..: reservoir, vnether it is associated with any mignificent
enginetrIng Of -.patents such as water purificatioo or storage, if there
are aoy undIst• portions of the site that may contain historic or
prehistoric are.--;logical sites, and any other information that may he
,ase f ul i n dace • -.ins if [hie propertr7, or partioes thereof, may possess
qua 1 it Les Ens: .tici :eke it eligible for inclusion to the Natio:41
Register. Afte• rte referenced documentation hag been cot:piled, it indult!
be !or -dirtied to :ne District of Caluebia istoriC ?rest rvarioe Office: for
review and recommend.a iorts concerning potential eligibility.

If all or portions of the sire appear eligible, then your agency's

i,„:t s
oro.
involve ant in this underraklog and the nat ure of the
f.c: co

the refereoced property may require that your agency obtain the C2='^e. It 5 or
the Cbumcil. Me National Risto7ic P7eservation kC: and :he C.3wicil's

7
1 $

** JPA.58 **
PLAINTIFFS' EXHIBIT F
%ki
 R.6849

regulations (36 CFR Part 800) set forth this respoosibility. We ionuld
aporeciate yoir agency looking into this Batter and notifying c. of your
finding. Should you have any questions, please call To McCulloch at (F7S)
786-0505.

we appreciate your cooperation and look forward to receiving your reply.

cerely,

Do L. Eli=
Chit, Eastern Division
o Project Review

132

** JPA.59 **
 R.6850
11\li.5Ut511
General Services Administration, Region 4
75 Spring Street AUG 21 1990
Atlanta. GA 30303
U.S. Attorney's Office
January 21, 1987 For the District of Columbia
4-D-DC-463

Mr. Don L. Klima, Chief

Eastern Division of Project Review
Advisory Council on Historic Preservation
1100 Pennsylvania Avenue, NW, $809
Washington, DC. 20004

Dear Mr. Klima:

This will confirm receipt your letter dated September 29,

1986, and subsequent telephone conversations between Mr. Tom
McCulloch of your staff and myself, concerning a determination of
the potential eligibility of 24+ acres at the McMillan Reservior
for possible listing on the National Register of Historic Places.

The General Services Administration (GSA) understands the

District of Columbia Historic Preservation Office (HPO) has been
unable to determine the eligibility of this site based on the
information we submitted for review (copy enclosed). we further
understand that based on recent discussions between your office
and the HPO, it was agreed that a stipulation and condition :f
sale to be included in the Offer to Purchase will be acceptable
to protect any historical integerity this property has been
determined to have.

The condition of sale will read as follows;

"The purchasers/recipients of this property agree that

prior to commencing development of this property they will,
in coordination with the HPO, record, photograph. and
document those elements which qualify the property as being
culturally significant in accordance with the A-106
procedure under the National Preservation Act of 1966, as
amended,"

B' copy of this letter, we are notifying the HP0 of this

information. Also, based on the above-mentioned discussions, GSA
will proceed to formalize a negotiated sale of this property with
the District of Columbia Government.

1 7

PLAINTIFFS' EXHIBIT G

** JPA.60 **
C‘ki
 R.6851

If y2u have an questions, please contact ne at FTS 242-2698.

Sincerely,

/ irht/r) 1//
. L 47;
Director__
Acting
Office of Real Estate Sales

Enclosure

cc: Ms. Carol Thompson

::',istrict of Columbia
Historic Preservation Office
614 "F 1 Street, NW
Washington, DC 20001

134

** JPA.61 **
• R.6852
•• e

Council On
Historic
Preservation
Of
,
AmmimiromisiliMMEImaL
elliblumme
The OW Poe Mal%Daus •

tr0 lataartisaLia kermat. f AN

Afro rc10004

FHB 1 3 037
Me. Patricia E. Staley
Acting Director
Office of Real Estate Sales
General Services Administration
75 Spring Street
Atlanta, GA 30303

REF: Conveyance of McMillan Reservoir, Washington, 'DC

tsar Ms. Bailey:.

On January 29, 1987, we received your letter notifying us that

GSA intends to proceed with the sale of a c. 24 acre parcel of
McMillan Reservoir to the District of Columbia. We have two
serious concerns about your letter. First, you state that GSA
will proceed to formalize the sale of the parcel prior to the
completion of your responsibilities under Section 106 of the
National Historic Preservation Act and the Council's regulations
"Protection of Sistoric Properties" (36 CFR Part 600). Second
the protective covenant you propose to place in the transfer
document is inadequate to protect any historic resources located
en the parcel.

Your letter, the first correspondence we 'have received from GSA

on this propcsel, does not mention whether GSA believes that
there me or are not any National Register-eligible properties
located on the parcel, and gives no determination of effect the
sale will have on any such historic resources. he the Federal
agency in charge of the conveyance, it is your responsibility
under Section 106 and the Council'■ regulations to make these
determinations, and then allow the Council opportunity to comment
on the undertaking prior to the -parcel being sold to the District
of Columbia.
The covenant you propose. which merely provides for the purchaser
to document historic properties, is inadequate. Please find
enclosed a draft copy of covenants whith would provide suitable
protection of historic properties,.•and, if included in the
covtyance document, would enable GSA to determine under our
roe:Laotians IS80D.0(0{3)] that the sale would have AO adverse
affect to historic properties.

• C •C C

** JPA.62 **
; :CO OS
 R.6853

Until you have eonpleted your responsibilities under. Section 106,

GSA should not take or sanction any activity that. could foreclose
Our ability to comaent on the dlsooeition. Should you have any
queetions, pleas* contact Tom MoCullouch at FTS-7116-0505.
meanwhile, we look forward to teosiving your reeponso to our
draft proposal.
•

_. Klima
f, Eastern Division
Project Review

Enclosure

7
r

co- as •gc, •
.14..VesSIACwi.

** JPA.63 **
°St ?;riC:•*
CCa
 R.6854

Covenants

(Draft)

1. An Historic Resources Report for the c. 19 acre parcel of

McMillan Reservoir (hereafter "Parcel") that includes an
inventory of resources considered to be eligible for the National
Register of Historic Places will be undertaken by the District. of
Columbia. Tnis report will be prepared in consultation with, and
submitted to, the District of Columbia Historic Preservation
Officer (Ke0) for review and approval and to the Council for
review and comment prior to the initiation of any work at the
Parcel. The District of Columbia HP0 and the Council shall have
30 working days to review the report.

2. The Historic Resources Report will be prepared in accordance

with the "Secretary of the Interior's Standards and Guidelines
for Archeology and Historic Preservation" (National Park Service,
1983), by an engineering or architectural historian approved by
the District of Columbia HPO and who meets, at minimum, the
professional qualifications standards described in the "Secretary
of the Interior's Standards and Guidelines for Archeology and
Historic Preservation.'

3. The report will identify and evaluate historic resources in

the Parcel in relation to the whole of McMillan Reservoir. The
report will also describe and discuss the potential significance
of any prehistoric and pre—reservoir historic resource', and
those associated with the development of McMillan Reservoir as a
municipal reservoir for the District of Columbia. If necessary
to present a complete picture of the significance of the
resources, the report will discuss them in relation to the whole
of McMillan Reservoir.

4. If no part of the Parcel is found to be eligible, then the

Grantee is relieved of further preservation responsibilities.

5. If a part of tee Parcel is found to be eligible, prior to the

initiation of any work at the Parcel, the DC HP0 will be
consulted during the development of any and all plans and
specifications for the renovation, rehabilitation, demolition, or
new construction planned for the Parcel, and any and all final
plans and specifications for work will be submitted to the
District of Columbia H100 for review and approval prior to
implementation.

6. If the District of Columbia RPO does not agree with the

preliminary or final plans and specifications for work at the
Parcel, and the disagreement cannot be resolved, the District of
Columbia shall immediately request the comments of the Council in
accordance with 36 CFR Part BOO.

s *Nine* Autos
** JPA.64 **
ACV.- ircet 't CC C E '0 C 'C
 R.6855

7. Any and all rehabilitation end renovation work at the Parcel

will be undertaken in accordance with *The Secretary of the
Interior's Standards for Rehabilitation and Guidelines for
Rehabilitating Historic Buildings* (Standards) (Attachment 2).

B. All cf the foregoing are covenants running with the land at

law as well as in equity, and are binding upon and inure to the
benefit of the successors and assigns of the District of
Columbia, and all present and future persons owning or having an
interest in said portion of the McMillan Reservoir, District of
Columbia, or part thereof.

** JPA.65 **
 R.6856

General Services Administration, Region 4

75 Spring Street
Atlanta, GA 30303

February 27, 1987

4-0-DC-463

Mr. Don L. Klima, Chief

Eastern Division of Project Review
Advisory Council on Historic Preservation
The Old Post Office Building
1100 Pennsylvania Avenue, NW 4809
Washington. D.C. 20004

Dear Mr. Klima:

This will acknowledge receipt of your letter dated February 13,

1987, and the Advisory Council on Historic Preservation's (ACHP)
comments on the proposed disposal of the 19-acre portion of the '
McMillan Reservoir property in Washington, D.C.

Further, this will confirm the telephone conversation of February

24, 1987, between Tort McCullough of your staff and myself,
concerning the General Services Administration's (GSA) position
regarding the A-106 review process and the changes to the
enclosed draft covenants for this property.

In this regard, a review of all previous data provided to the

District of Columbia Historic Preservation Office (HP0) and the
ACHP did in our opinion comply with the completion of our
responsibility of the A-106 review and supported our
determination that there are no National Register eligible
properties or this parcel. We regret that the formulation of
this material apparently was not in the format desired.

However, in order that the proposed disposal of this property can

move forward in an orderly manner, GSA is willing to remove the
previous conditions of sale as stated in our letter of
January 21, 1987, and include the enclosed covenants as you
recommended with the above-noted changes.

Since these covenants will be included in the offer to purchase

and deed of conveyance, it is our determination under 800.9(c)(3)
that the sale would have no adverse effect to historic
properties.

By copy of this Letter we are notifying the HP0 of our

determination in this disposal.

•-

170

PLAINTIFFS' EXHIBIT I
rAv 'if.-tc,o,
ay.-4 _r
** JPA.66 **
osr=t4rio= 1.4 P• A. a 7INI et GT:CC CS 'C r n
 R.6857

If You have any questions, Please contact Bill Holcombe at rrs

242-2698.

-- Sincerely,

PATRICIA E. SAILET
Acting Director
Office of Real Estate Sales

Enclosure

oct Ma. Carol E. Thompson

District of Columbia
Historic Preservation Office
614 "Ha Street, Nw
Washington, PC 20001

14C

^1.

** JPA.67 **
1 T ZNII.Crn .A.11105 I ACV., 7,7. cl 9 : : e .1.' C. 5 3 Z. C Z.1
 R.6858

. Advisory
Council On
Historic
Preservation
TheadfteCeMmBWIdins
tux Pubarihizia Amain.NW OM
Wis/abaru,vC 21X01
•••••••••1111110•••••w••••••

NAP 2 5 1987

Ms. Patricia 2, Bailey

Acting Director
Office of Real Estate Sales
General Services Administration
73 Spring Street
Atlanta, GA 30303

REPI Sale of 19 Acres of McMillan Reservoir, Washington, DC

Dear Ms. Bailey;

On March 16$ 1987, the Council received your determination that

the referenced project would not adversely affect McKillan '
Reservoir, elements of which are considered eligible for the
National Regilter of Historic Places. We have reviewed your
supporting documentation, and we agree with your determination.
Our concurrence is based on your stated agreement to include in
the conveyance deed the B covenants contained in your letter to
us.

This letter evidences that the requirements of Section 106 of the

National Historic Preservation Act and the Council's regulations
have been met for this project. Both this letter and your
supporting documentation should be retained in your agency's
environmeraal or project files.

Thank you for your continued cooperation.

1.

a smiiierr
. Klima
. Eastern Division
Project Review I 3

,MI

** JPA.68 **
 R.6859

"CASH SUE" -r?7--

EfEnir—
qn
ornm TO PAINASE REAL ESTATE AND ACCEPTANC.1
AUG 21 1990
U.S. Attorney's Office
1. Subject Property. For the District of Columb
Ths ('.ntiwerffrwm.' nf *h~ rilmo.rirt of rnimhia CPurchasar"), hereby
(City, State, County, Commission, or Individual)

offers to purchase from the United States of America, acting by and thrcugh

tne Administrator of General Services (*Seller"), the surplus property

formerly kncun as Mori= Rcseme[r , 4-0-x-451 , con-

( of Property) (MA Control no.)

sisting of approximately 24.69 acres an an 'as is, ubere is' basis, all as

more particularly described in the attached description (EXhiblt A). This

document with Extitits A - E, shall be referred to he as the 'Offer

to Purchase.

2. Terme of Ftztrass and Sala .

2.1. 11w:these Price. Tbe total purchase pries fee* the property is

NTA MILLICN rgREE WINIDR.M THOUSAND Dollars

(S b.300_000.00 ) payable as follows:

NNE HT.14)RED THIRTY MOUND Dollars

CS 930,000.00 ) remitted as an earnest money deposit in the

form of a certified ceek, cashier's dhseX, or postal =nay order.

Emir MiLLICH TIME HUNDRED SEvisIrr THCUSAND Collars

(S 8.370,000.00 ) upon elcein; pars ant to out:section 2.4.1.

Z.I. Title tents. upon acceptance of the Offer to Pure:lase, =way-

an es of the Seller's interest shall be made by Cuitclaim Coed,

providing the following:

2.2.1. Tilt title to the property will be convoyed SJOjeCt to all

** JPA.69 **
 R.6860

purchaser shall be relieved of all further liability to

Seller.

2.3.2, If Seller does not accept this Offer to Purchase within

ninety (90) days of receipt by Seller, or such longer

period as may be mutually agreed upon, the earnest money

deposit shall be promptly returned to Purchaser without

interest and WithOtA further liability on the part of

either party to the other.

2.4. Closin9. Within a reasonable period of time and not Later than

30 days from Purchaser's receipt.of the Notice of Acceptance,

closing of the transaction contemplated hereby shall be held in

the Office of Real Estate Sales, General Services Adminiatration•

Atlanta, Georgia. At the closing'

2.4.1. Purchaser shall tender to Seller a paYment in the

amount of Eictit OCUcni/vee Wrdrisi SeAm 13-aamrd Dalla ra

(; 8,370,000.00 ).

2.4.2. Seller shall deliver to Purchaser the Deed which shall

have been duly executed and authenticated by

authorized officials of Seller.

3. Conditions.

3.1. GSA Form 2441, iGeneral Terms Applicable to Negotiated Sales*

(except for sutparacrapt af(41) are incorporated into this Caer

to Purchase. However, terms and conditions set forth within the

body of this Offer to Purchase take precedence and control over

similar or conflicting provisions of GSA Porn 2041.

3.2. The nondiscrimination covenant (Exhibit C) shall tie incorporated

1.e 7

** JPA.70 **
 R.6861

recomnenclod in Souse Report Numer 95-1053, entitled "FAA

Determination of 'No Hazard' for Structures Near Airports,'

it has teen determined that the only public airport within

six nautical air miles of this property is the Nashlnotor

airport. rkl Saps been apprised of the proposed disposal

of the property, and that the Government's conveyance

document will contain a provision that the grantee, its

sucoeseors and assigns ltd every successor in interest

to the property herein described, cc any part tmireof,

=at prohibit arry construction or alteration en the property

unless a determination ce r hazard to air navigation is

issued by FM in accordance with 14 CFR Pert 77, °Objects

Affecting Navigable Airspace,' or under the authority of

the Federal Aviation Act of 1958, as mended.

3.4.3. Purchaser expressly agrees for itself, it successors, and

assigns' to prevent any u. of the herein described real

property wnich mould interfere with or adversely affect

operation Or maintenance of the airport. or otherwise

constitute an airport hazard.

3.5. Excess Profits Clause. The Excess Profits Clause (Exhibit D) is

incorporated into this Offer to Purchase and shell es incorporated

in the largage of the Deed.

3.6. RosoIution them shall be attached to the after to Purchase a

resolution that will show the official character and authority

of the aoquisititn authority of the Pur=lsaser, and the approval

** JPA.71 **
 R.6862

3.10. (Include only if applicable) If appLiceble. this clause shall be

incorporated in the Language of the deed. Tloodig. The property

lies in the 100-year floodplain of the N/A

The Purchaser agrees to comply with all Federal. state. and local

regulations pertaining to land and development of properties

subject to flooding. The Purdhasar and all successors shall

save the Seller harmless in the event of damage to or loss of life

or property resulting directly or indirectly from flooding.

3.11. COvenants.
•=141.

3.11.1. An HistoriO Resources Rte': for the e.19 acre parcel of MthilIan

Reservoir (hereafter "Parcel") that include* an inventory of

resources considered to be eligible for the National Register of

Historic Places will be undertaken by the District of Colutbia.

This report will be prepared in consultation with, and submitted to,

the District of CtIumbia Historic Preservation Officer (HP0) for

review and comment prior to the initiation of any work at the

Parcel. The District of C041.14..14 HP0 and the Crouncil *all have

30 working days to review the report.

3.11.2. The Historic Pasotirces Report will be prepared in accordance with

the "Secretary of the interior's Standards and Guidelines for

for Ardheology and Historic Preservation' (National Park Service.

1983), by an engineering or architectural historian approved by

the District of COluMbia HP0 and who meets, at minimum, tha

professional qualifications standards described in the "Secretary

of the Interior's Standard. and Ouidalines for Archeology and

Historic Preservation."

** JPA.72 **
 R.6863

3.11.9. All of the foregoing are covenants running with the Land at

Law as well as In equity. and are binding u and inure to the

benefit of the successors and assigas of the District of

Coludbia, and all present and tutuzs persons owning or having an

interest in said portion of the McMdilan Reservoir, District of

Columbia, or part thereof.

3.12. ma Covern=ent of the District of COluMbia hereby aoknowladges and

agrees that at acceptance of conveyance of the property that no

construction or disturbances of any kind will be allowed to take

place prior to JamAary oes. Therefore, allowing the 4ashingt=

Aqueduct Division to continue ths maintenance and uaa of the

property for the pucvome of a water filter facility, to be used as

needed, on a non-re'Mbursable basis.

** JPA.73 **
 R.6864

CrElIFICArE Cif AUTHDRIZATICN CAE' PaRCKASER

:, David E. River _certify that tam the e*

(Secretary or other
of the District cf Colz1bip GovelmTels_
TalcLAI tIti.41) (!ity, State, County, commasslun or InOlvlOua4)

named as Purchaser herein: that David E. Rivers who signed this Offer

to Prchase on behalf of the Purchaser was then Secreary of theS4triz_g_f coluncia

(Official Title)

that said Cffer to Purchase was duly signed for and on behalf of said

Government of the District of Colatia by authority cf its governing

(City, State, County, Commission or Individual)

betty and the purchase is within the scope of its corporate {Dowers.

(Signe tu re of 147.tt;1414)gtf14c-07)

SEAL

5. Acceptance of United Stated Government.

The Offer to
(City's, State's, Ccunty's, Can assion's or Individual's)

Purchase, as set forth in the foregoing "Offer to Purchase," is hereby

ACCEPTED by and on behalf of the United Stites of America this day

of , 19 .

U4ITED STATES CF AMERICA

Acting by and through the
AM4IN/SrRA1tR OF GENERAL SERVICES

BY

Enclosures
71717:75it "A" - Description of Property
(2) Exhitit "B" - GSA form 2041
(3) Exhibit "C" NondisCrtmination Covenant
(4) ExniOLt EXCIRS3 Profits Claus*
(S) Exhizit 'Eu - Resolution

-*
I

** JPA.74 **
 R.6865

Due North; passing a corner common to Tract Number DS and Tract Number 135
and formerly the Muth line Of Othiforfas Street at 300.00 fret; passing another corner
common to Tract Number 133 and net Number 134 end formerly the north line of
Douglas Street at 390.00 feet; passing another coener common to Tract Number 134 ano
Tract Number 131 and formerly the south line of f.rnporia Street at 690.00 feet; passing
another corner common to Tract Number 133 and Tract Number 134 and formerly the
north !ins of EMpar LI Street at 710.0 feet; passing another corner common to Tract
Number 134 and Tract Number 135 and formerly the south line of Frankfort Street at
10110.00 feet; passing another corner corionon to Tract Number 133 and Tract Number 133
and formerly the north Line of Frankfort Street at /170.00 feet, in all 1323.01 feet to the
northwest corner common to Tract Number 133, at a point of intersection of the east
lint of First Street, with the sourtherly line of -Michigan Avenue; thence, leaving the east
line of First Street, and with the southerly Line of Michigan Avenue and the Line of Tract
Number 133,

North 30° 21' 47" East 723.41 feet to the place of beginning, containing 24.63
acres, more or lest and except 4.80 acme of previously dedicated public nIVIts-
of-way.
The beartrigs and distances used herein ars based on the Maryland Coordinate Grid
System, 1927 N.A. Datum, as wail as reflectips subdtytsion survey data depicted on sheet
no. i of a map entitled "Washington Aqueduct Property Map McMillan Property,"
prepared by U.S. Engineter Office, Wa.s.ningtor•, DC, Rtrriadrd by October 1937.

it Li the intent of the foregoing description to include all of the same Land is that
acquired by tree United States of America by the foilowlrig deeds

Tract No. Grantor Deed Dated Liber Folio

133 Zama" RBI ad Wife 11 March 1901 133 773

also a portion of the same Land as that acquired by the United States of America by
the following instranentst

Tract No• Grantor Deed Dated Liber Folio

134i Joseph P1.111 and Tile 29 April 1901 833 771

173 District of Columbia Streete Turned Cie et

** JPA.75 **
 R.6866
110 A tee!/ Ir Pato— in term awl nolotintre NUM-
/solary lo clef dpeeitinteit. eoldellelell ui Obtiottlen
Ter stre•rtt of fhb Online& et the inirtreloo 'ride: use
tail A pirenate anemity toertripe, yonbor's Ilea dad
Aortiofe, or deed of Intim lit COnriirrair? entit tai
'neut. if Mc Mato iii nnitb Shy aropirry to Itt.
eltle41 Ulf beevetlel Irl oity tlac, bittepeoer, to ha la
ferns and tybitanec nitictsciavy ta Lee Clirereeteel,
am In ally eiterit Ii lierthleel
1. A riltriottell Spigot *le. levee Nolo,' the
property IA. icifar ad Yt>reart ieealep retterto.
Nees), or other Cersoltort. Of tag mottrcood
MOM,'ErP 1117014(AP taf millviat prier orition
CIRO 1101 a1 I*. devermnerti;
U. A recaraminit ter premIsiteste of ineuranic
alv"vralt oallotalttlarY it Ma illaectotititra
typal of rugs,. toiwourrio. arse inomirefe:
iti. A previims 11101 Sala printipoI inaltradon
Otay oe dropoidt ia fall, at art port, On any ia•
olliatocnt Oa* oltabOat lemony;
al vatitet el ties ratulay eebleltdie it lament.'
Wall be appilott a On.nitt tine proms/al oblieauan
• liver., Wit of morality;
v. Airtatriant in the par Of tO4 Olottrapr to
ittoroneettlf rtleceetOte ittorelort' helliand calls
to lief *WM:1mM lit the trent if torettoSatt.
arm a lledieleney (Wiwi PUSO
KIWI+. by fatty )awl ilt.T torrelooire coif or
exeret0e OS pawn ,40 able 11 Ulf Mortgage; Val
et. A rett.Urernirot be worlds financial data
thuna4 ihit p.m* of the mortise, za amy bf let"
quilted try L.I ettriltatannl.
CV :Await WWI of cornpatod as am rata pruaertAnd
ten tAe oft*" Aatruvil .atatto deli bi poet WILD raCtt
priocipat laatatliment.
•
I1 ..♦.F. Ii oi.41..
** JPA.76 **
g. rya WOMB, ototIt On a onindilly episodic dote not
Mier MR IQ gays eta'liettnanot at Li."' olf,t• 01 aim,.
limier pitied ii May M Orisil roan in Writing lc..ccr en
In, Cavertintoll thq Wino, II Vao OtAtrokill Pict Ur+
goal eels),• er fle o Itvalt Wei tto Offitir teei1L Aly Inc
pawn,it tit. op*, RI Teem. iv'. Mtn exocife col acu wet
le lacCiorctiuseal the imilitiottniti dilOtihiol tri fr31, .& r.
aral ftirgti1h evagente Of titan'JACI ebrenie. ettC1
tensity loin nude try tree orlon*. tag Cinigernrimut
activate 14 tan entre, The iiitlwarint. Or ie.:trotenio of
eonvoyanec. :n soy sworPl. It pguesierhi vie aaoarrita
top aftimpt prier to Lie eitte Or obeveraeoe. tile en,rir
emit my. in odeltilen 10 the dureriase looney our. Ars
Mont required arniar previsions fa III. *leer.
reip offeror shell (or all tafti Introit* 00
anal sfal Ilia tali axonal@ and AMA to all
it CORItipi ire and o.ottority dicirnirtti 11 Cr
rreltrow int lletifflif Miry Mohan an may an rtqwreal
rederal dA4 IN Ian- AU laatrumicorc Of canTralte srq
doconoirets shall to sacra GS f more tit rox
1.1
dor dreserltrod try letal riCardlfld rareas at inn eflomt I
sapid.%
..11
, 13glAia,lcir.IXAKtirjrarualtr.!7-irA:VO4-451=I
re any Wry or part of lb* cantraet 41€ Iola or yo env yiplof4;
Mt may arias therefrom. Out title prevision shaft net ye ebt..
'triad M cute* to asst ocriaset sit MIC it nods each a ror•
Oterlitille for fit Ittrafol lonetit.
10. CONTNAPIT ACAIPITT CONTINGttrr ;LEI. °nicer
lo&PrOPleit let Ill WI rim antalayad or rcialnal illy period or
twisty le Meilen Of tailittatt %can any Igrairniett
,
vs+40 41/14i for i r1dllplivah, peerefAlafi. ifoiltFori
442,
Sr oontiregolu (40. Brno.% Of tlal warrant ,'Skit it. ,the
Ckriernsooni tie eigist ti &Nonalie carstriCt oltbaat ity of
iw Ito 4Lacrtatta to tenors' , tram till micro; yin a mown as
nil eliinallaillan. preening*. Ovaittaro. IP teintingeos too
In amititiaa 10 the carmi4ottition hortenth set forth. That ifte.
runty Ohltil rot apply is rammiassana 'Janata ay the irlepor
Hoot tote tentrOCI oeVered 00 Made ihrouln bona floc'MO.
conamapaiat agcncica ins torainet lying Offcror tie Isle *
purpose or dein 041111+01IL "Veto tide alma tnmt anniMarrial
oriole." Itia bona constr.," to inane' tic:m.8W r{41 Wats
broiler, ttigigai In ilia twittrolie generally.
ma tem adt 11 aro)
 R.6867

IXHI11:1 D

=OM PROF:TS CLAOS2

(a) ?his covenant shall run with the land for a period of 3
years froM the date of conveyance, with respect to the property
described in this deed, if at any time within a 3-year period
from the date of transfer of title by the Orentor, the Irantee,
or its sucesesore or assign', 'hall sell or enter into agreements
to sell the property, either in a single transaction or in a
series of transactions, it is covenanted and agreed that all
proceeds received' or to S. received in aloes@ of the Grantee's or
a subeequent seller's actual allowable omits will be remitted to
the Creator. :n the event of e sale of Leas than the entire
property, actual allowable costs will be apportioned to the
property based on a fair end reasonable determination by the
Creator.
(b) for purposes of this covenant, the Grantee's or a
subsequent seller's allowable costa shall include the following;

(1) The purchase price of the real property;

12) The direct coats actually incurred and paid for

improvements which serve only the property, including road
construction, atorm and sanitary sewer construction, other public
facilities or utility construction, building rehabilitation and
demolition, landscaping, grading, and other site or public
improvements;

(3) The direct costs actually incurred and paid for

design and engineering services with respect to the improvements
described in (b) (2) of this section; and

(41 The finance charges actually incurred and paid in

conjunction with loans obtained to meet any of the allowable
costs enumerated above.

(c) None of the allowable costs described in paragraph (b)

of this section will be deductible if defrayed by federal grants
or if used as matching funds to secure Federal grants.

(d) In order to verify compliance with the terms and

conditions of obli covenant, the Grantee, or its successors or
aasigne, shall submit an annual report for each of the subsequent
3 years to the Grantor on the anniversary date of this deed.
Each report will identify the property involved in this
transaction and will contain ouch of the following items of
information as ate applicable at the time of submission:

% description of each portion of the property that

** JPA.77 **
 Ww•w•m....
,
R.6868
•
—fricMILLAN -PARK
- Sc0le lynch e 07r4
•

ft,
•Ci

.
k
L.4

.
z :
AREA 44-Fa 7AVIPES.
6. .- 4.4-ASA ."W.7 VW
1/
.

AM IL
iRhiM
11".i7

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IF•iv7i1

C.r,ANNWC STREET

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** JPA.78 **
 R.6869

a 0 0 _1 4

cf 10
SN, Re ion 4, Atlanta, GA
Office of Regional Counsel

QUITCLAIM DEED

STATE OF GEORGIA )

COUNTY OF FULTON )

THIS INDENTURE, made this .3.7"/"..1 day of September,

1987, between the UNITED STATES OF AMERICA, acting by and through

the Administrator of General Services, under and pursuant to the

powers and authority contained in the provisions of the Federal

Property and Administrative Services Act of 1949, approved June

30, 1944 (P.L. 81-152), as amended (40 U.S.C. 484), and

regulations and orders promulgated thereunder, Grantor, and the

District of Columbia, Grantee.

WITNESSETS;

That the Grantor ► for and in consideration of the sum

T of NINE MILLION THREE HUNDRED THOUSAND AND NO/100 DOLLARS

tS9,300,000.001 cash in hand paid, and receipt of which is hereby

acknowledged, has remised, released, and forever quitclaimed and

by these presents does remise, release and forever quitclaim unto

the Grantee, its successors and assigns, all right, title,

interest, claim and demand whi_dh the

•
said Grantor has or may have

had in and to that certain tract or parcel of land lying and

being situate in the District of Columbia, and being more

particularly described as follows: 07 Cci,

,cf.A:•-• S//R1
'

C_
1'1

** JPA.79 **
 R.6870 1.4 J

A certain parcel of land situate in

Washington, District of Columbia, NW,
being all of Tract Number 133 and a
portion of Tract Numbers 134 and 1.35
known as the "McMillan Filter Plant"
parcel of the Washington Aqueduct
McMillan Reservoir and Filter Plant,
owned by the United States of America,
here-in -after referred to by the Tract
Number, and more particularly bounded
and described around the filter plant
boundary line as follows:

Beginning at the northeast corner common

to Tract Number 133, at .a point of
intersection of the southerly line of
Michigan Avenue with the westerly line
of North Capitol Street. said paint
being further located South 48* 54' 36"
West 86.24 feet, more or less, from the
intersection of the centerline of
Michigan Avenue with the centerline of
North Capitol Street; thence, leaving
the southerly line 'of Michigan Avenue,
and with the westerly line of North
Capitol Street and the line of Tract
Number 133;

Due South; passing a corner common to

Tract Number 133 and Tract Number 135
and formerly the north line of Frankfort
Street at 294.49 feet; passing a corner
common to Tract Number 135 and Tract
Number 134 and formerly the southline of
Frankfort Street at 374.49 feet; passing
a corner common to Tract Number 134 and
Tract Number 135 and formerly the north
line of Emporia Street at 674.49 feet;
passing another corner common to Tract
Number 135 and Tract Number 134 and
formerly the south line of Emporia
Street at 764.49 feet; passing another
corner common to Tract Number 134 and
Tract Number 135 and formerly the north
line of Douglas Street at 1064.49 feet:
passing anOthir corner common to Tract
Number 135 and Tract Number 134 and
formerly the south' line of Douglas
StreetIt'1154.49 feet, in all 1454.49
feet to a corner common to Tract Number
134, at a point of intersection of the
westerly line of North Capitol Street

- 2
I 7

** JPA.80 **
 R.6871

9 ' 3 3 0 J 2

with the north line of Charming Street:

thence, leaving the westerly line of
North Capitol Street, and with the north
line of Channing Street and the line of
Tract Number 134; .

Due West 774.33 feet to another corner

common to Tract Number 134, at a point
of intersection of the north line of
Channing Street, with the east line of
First Street; thence, leaving the north
line of Channing Street, and with the
east line of First Street, continuing
with the line of Tract Number 134;

Due North: passing a corner common to

Tract Number 134 and Tract Number 135
and formerly the south line of Douglas
Street at 300.00 feet; passing another
corner common to Tract Number 135 and
Tract Number 134 and formerly the north
line of Douglas Street at 390.00 feet;
passing another corner common to Tract
Number 134 and Tract Number 135 and
formerly the south line of Emporia
Street at 690.00 feet; passing another
corner common to Tract Number 135 and
Tract Number 134 and formerly the north
line of Emporia Street at 780.00 feet;
passing another corner common to Tract
Number 134 and Tract Number 135 and
formerly the south line of Frankfort
Street at 10130.00 feet; passing another
corner common to Tract Number 135 and
Tract Number 133 and formerly the north
line of Frankfort Street at 1170.00
feet, in all 1323.01 feet to the
northwest corner common to Tract Number
133, at a point of intersection of the
east line of First Street, with the
southerly line of Michigan Avenue;
thence, leaving the east line of First
Street, and with the southerly line of
Michigan Avenue and the line of Tract
Number 1331

North 80* 21' 47" Bast 795.41 feet to

the plade of beginning, containing 24.69
acres, more or less and except 4.80
acres of previously dedicated public
rights -of -way.

- 3 - r-

** JPA.81 **
 R.6872

2 JUJO Li 7 3 4

The bearings and distances used herein

are based on the Maryland Coordinate
Grid System, 1927 N.A. Datum, as well as
reflecting subdivision survey data
depicted on sheet no. B of a map
entitled "Washington Aqueduct Property
Map McMillan Property", prepared by U.S.
Engineer Office, Washington, D.C.,
Revised by C.P.H.. October 1937.

It is the intent of the foregoing description to

include all of the same land as that acquired by the United

States of America by the following deed:

Tract No. Grantor Deed Dated Liber Folio

133 Joseph Paul & Wife 18 Mar 1901 853 775

Also, a portion of the same land as that acquired by

the United States of America by the- following instrument:

Tract No. Grantor Deed Dated Liber Folio

134 Joseph Paul & Wife 29 Apr 1901 853 771

135 District of Columbia Streets Turned Over

SUBJECT TO all existing easements or rights -of-way for

public roads and highways, public utilities, railroads and

pipelines as of May 8, 1987.

The Government of the District of Columbia hereby

acknowledges and agrees that upon acceptance of conveyance of the

property that no construction or disturbances of any kind will be

allowed to take place prior to January 1988. Therefore, allowing

the Washington Aqueduct Division to_continue the maintenance and

use of the property for the purpos.e of a water filter facility,

to be used as needed, on a non -reimbursable basis.

- 4 -

** JPA.82 **
 R.6873

2 2 J J J U ; 4

The following are covenants running with the land at

law as well as in equity, and are binding upon and inure to the

benefit of the successors and assigns of the District of

Columbia, and all Present and future persons or entities owning

or having an interest in said portion of the McMillan Reservoir,

District of Columbia, or part thereof.

NON-DtscRrm'RATION

The purchaser covenants for itself, its successors,

and assigns and every successor in interest to the property

hereby conveyed, or any part thereof, that the said purchaser and

such heirs, successors and assigns shall not discriminate upon

the basis of race, color, religion, national origin, or sex in

the use, occupancy, sale, or lease of the property, or in their

employment practices conducted thereon. This covenant shall not

apply, however, to the lease or rental of a room or rooms within

a family dwelling unit; nor shall it apply with respect to

religion to premises used primarily for religious purposes. The

United States of America shall be deemed a beneficiary of this

covenant without regard to whether it remains the owner of any

land or interest therein in the locality of the property hereby

conveyed and shall have sole right to enforce this covenant in

any court of competent jurisdiction.

EXCESS PROFITS

This covenant shall run with the land for a period of 3

years from the date of conveyance. With respect to the property

described in this deed, if at any time within a 3 -year period

** JPA.83 **
 R.6874

JJJ002 ' 4

from the date of transfer of title by the Grantor, the Grantee,

or its successors or assigns, shall sell or enter into agreements

to sell the property, either in a single transaction or in a

series of transactions, it is covenanted and agreed that all

proceeds received or to be received in excess of the Grantee's or

a subsequent seller's actual allowable costs will be remitted to

the Grantor. In the event of a sale of less than the entire

property, actual allowable costs will be apportioned to the

property based on a fair and reasonable determination by the

Grantor.

(a) For purposes of this covenant, the Grantee's or a

subsequent seller's allowable costs shall include the following:

(1) The purchase price of the real property;

(2) The direct costs actually incurred and paid for

improvements which serve only the property, including road

construction, storm and sanitary sewer construction, other public

facilities or utility construction, building rehabilitation and

demolition, landscaping, grading, and other site or public

improvements;

(3) The direct costs actually incurred and paid for

design and engineering services with respect to the improvements

described in (a)(2) of this section; and

(4) The finance charges actually incurred aLd paid in

conjunction with loans obtained •to meet any of the allowable

costs enumerated above.

- 6

** JPA.84 **
 R.6875

(b) None of the allowable costs described in paragraph (a)

of this section will be deductible if defrayed by Federal grants

or if used as matchinc funds to secure Federal grants.

(c) In order to verify compliance with the terms and

conditions of this covenant, the Grantee, or its successors or

assigns, shall submit an annual report for each of the subsequent

3 years to the Grantor on the anniversary date of this deed.

Each report will identify the property involved in this

transaction and will contain such of the following items of

information as are applicable at the time of submission:

(1) A description of each portion of the property that

has been resold;

(2) The sale price of each such resold portion;

(3) The identity of each purchaser;

(4) The proposed land use; and

(5) An enumeration of any allowable costs incurred and

paid that would offset any realized profit.

If no resale has been made, the report shall so state.

(d) The Grantor may monitor the property and inspect

records related thereto to ensure compliance with the terms and

conditions of this covenant and may take any actions which it

deems reasonable and prudent to recover any excess profits

realized through the resale of.the property.

FAA CLAUSE

Based on coordination between the General Services

Administration and the Federal Aviation Administration (FAA)

as recommended in House Report No. 95-1053, entitled "FAA

r-

** JPA.85 **
4 R.6876

J J I..) J 2 4

Determination of 'No Hazard' for Structures Near Airports," it

has been determined that the only public airport within six

nautical air miles of this property is the Washington National

Airport. FAA has been apprised of the proposed disposal of the

property, and that the Government's conveyance document (this

document) will contain a provision that the Grantee, its

successors and assigns and every successor in interest to the

property herein described, or any part thereof, must prohibit any

construction or alteration on the property unless a determination

of no hazard to air navigation is issued by FAA in accordance

with 14 CFR Part 77. "Objects Affecting Navigable Airspace," or

under the authority of the Federal Aviation Act of 1958, as

amended.

HISTORIC RESOURCES

An Historic Resources Report for the 19.89 acre parcel

of McMillan Reservoir thereafter "Parcel") that includes an

inventory of resources considered to be eligible for the National

Register of Historic Places will be undertaken by the District of

Columbia. This report will be prepared in consultation with, and

submitted to, the District of Columbia Historic Preservation

Officer (HPO) for review and comment prior to the initiation of

any work at the Parcel. The District of Columbia HPO and the

Council shall have 3g working.days to review the report.

The Historic Resources Report will be prepared in

accordance with the "Secretary of the Interior's Standards and

Guidelines for Archeology and Historic Preservation" (National

** JPA.86 **
 R.6877

Park Service, 1983), by an engineering or architectural historian

approved by the District of Columbia HPO and who meets, at

minimum, the professional qualifications standards described in

the "Secretary of the Interior's Standards and Guidelines for

Archeology and Historic Preservation."

The report will identify and evaluate historic resources

in the Parcel in relation to the whole of McMillan Reservoir.

The report will also describe and discuss the potential

significance of any prehistoric and pre-reservoir historic

resources, and those associated with the development of McMillan

Reservoir as a municipal reservoir for the District of Columbia.

If necessary to present a complete picture of the significance of

the resources, the report will discuss them in relation to the

whole of McMillan Reservoir.

If no part of the Parcel is found to be eligible, then

the Grantee is relieved of futher preservation responsibilities.

If a part of the Parcel is found to be eligible, prior to the

initiation of any work at the Parcel ► the DC HPO Will be

consulted during the development of any and all plans and

specifications for the renovation, rehabilitation, demolition, or

new construction planned for the Parcel, and any and all final

plans and specifications for work will be submitted to the

District of Columbia HPO Ear review and approval prior to

implementation. If the District of Columbia HPO does not agree

with the preliminary or final plans and specifications for work

at the Parcel, and the disagreement cannot be reSolved, the

** JPA.87 **
 R.6878

2,JJJOJ' .;

District of Columbia shall immediately request the comments of

the Council in accordance with 35 CFR Part eoo.

Any and all rehabilitation and renovation work at the

parcel will be undertaken in accordance with "The Secretary of

the Interior's Standards for Rehabilitation and Guidelines for

Rehabilitating Historic Buildings" (Standards).

TO HAVE AND TO HOLD the same, together with all and

singular the appurtenances thereunto belonging or in anywise

appertaining, and all the estate, right, title, interest or claim

whatsoever of the said Grantor, either in law or in equity.

The property hereby conveyed is presently under the

jurisdiction of the General. Services Administration, is available

for disposal and its disposal has been heretofore authorized by

the Administrator of General Services acting pursuant to the

above referred to laws, regulations and orders.

IN WITNESS WHEREOF, the UNITED STATES OF AMERICA has

caused these presents to be executed in its name and on its

behalf the day and year first above written.

UNITED STATES OF AMERICA

Acting by and through
Administrator of General Services

wITNESSES: By:
PATRICIA E. BAILEY
Acting Director
Office of Real Estate Sales
General Services Administration
Region IV, Atlanta, Georgia

I0

** JPA.88 **
 R.6879

STATE OF GEORGIA )

COUNTY OF FULTON )

This day, before the undersigned, personally appeared

PATRICIA E. BAILEY to me well known and known to be the person
described in and who executed the foregoing instrument of
conveyance on behalf of the UNITED STATES OF AMERICA, and
acknowledged that she, being thereunto duly authorized as Acting
Director, Office of Real Estate Sales, General Services
Administration, Region 4, Atlanta, Georgia, executed the same For
the purposes therein mentioned as the free act and deed of the
UNITED STATES OF AMERICA and the Administrator of General
Services.

IN WITNESS WHEREOF, I have hereunto affixed my official

seal of office in Atlanta, Georgia, this the a.t-tz, day of
September, 1987.

excL4- )st.}1-1_,IrcALEz_..
ELAINE H. MITCEiELL
Notary Public. Georgia
My commission expires 1/11/g1

** JPA.89 **
*a • R.6880
2 j 3 0 0 9 .31

D.C. STATUTE 45-602 REQUIREMENT FOR PERSONAL ACKNOWLEDGMENT

I, ELAINE H. MITCHELL, a Notary Public in and for the

State of Georgia, DO HEREBY CERTIFY THAT PATRICIA E. BAILEY,

party to a certain Deed bearing date on the 25th day of Septem-

ber, 1987, and hereto annexed personally appeared before me in

said County of Fulton, THE SAID PATRICIA E. BAILEY, being Person-

ally well known to me as the person who executed the said Deed

and acknowledged the same to be her act and deed on behalf of the

United States of America.

Given under my hand and seal this 2nd day of October

A.D., 1987.

a C24,64.. 74. 111;FreAr

ELAINE H. MITCHELL
cz_LC_

NOTARY PUBLIC
My Commission expires 1/11/91

** JPA.90 **
 R.6881
•
2i)J0J011) *4

D.C. STATUTE 45-602 REQUIREMENT FOR PERSONAL. ACKNOWLEDGMENT

I, ELAINE H. MITCHELL, a Notary Public in and for the

State of Georgia, DO HEREBY CERTIFY THAT PATRICIA E. BAILEY,

party to a certain Deed bearing date on the 25th day of Septem-

ber, 1987, and hereto annexed personally appeared before me in

said County of Fulton. THE SAID PATRICIA E. BAILEY, being person-

ally well known to me as the person who executed the said Deed

and acknowledged the same to he her act and deed on behalf of the

United States of America.

Given under my hand and seal this 2nd day of October

A.D., 1987.

-ok 1/i.;,„;IDCLAfAC..
ELAINE H. MITCHELL
NOTARY PUBLIC
My Commission expires 1/11/91

** JPA.91 **
[BLANK PAGE]

** JPA.92 **
 PRESIDENT LINCOLN'S COTTAGE
AT THE SOLDIERS' HOME

November 7, 2014

L. Preston Bryant, Jr., Chairman

National Capital Planning Commission
401 Ninth Street NW
North Lobby, Suite 500
Washington, DC 20004

Re: ZC 13-14 McMillan Reservoir Sand Filtration Site

Correction for the Record and Request for Reconsideration

Dear Mr. Chairman and Members ofthe National Capital Planning Commission:

The purpose of this letter is to correct for the record a factually inaccurate statement
that was made by NCPC staff at the hearing on November 6, 2014,regarding the
proposed PUD and map amendment for the McMillan Sand Filtration site. Specifically,
the presentation by your staff included erroneous statements to the effect that the views
ofthe Capitol Dome from President Lincoln's Cottage, which is managed for public
visitation by the National Trustfor Historic Preservation pursuant to a cooperative
agreement with the Armed Forces Retirement Home,are either not significant or non-
existent.

These statements(and an accompanying diagram)were not included in the staff report

that was released to the public before the hearing and have not been provided to us since
the hearing, despite a written request. The staff did not consult with the National Trust
before making these assertions and made no arrangements with us to come to President
Lincoln's Cottage to inspect these views in person.

The assertions by NCPC staff regarding the views from President Lincoln's Cottage are
inaccurate. These staff assertions are contradicted by the letter from the Armed Forces
Retirement Home dated August 21, 2014,and they are contradicted by the observations
of our staff and our visitors on a daily basis. From the landscape,the Visitor Center, and
President Lincoln's Cottage our visitors not only see the views of downtown
Washington,and in particular the Capitol Dome,but these views are central to our
interpretation of President Lincoln's Cottage and the surrounding landscape. The 2000
designation of President Lincoln's Cottage as the first and only National Monument in
the District ofColumbia further underscores the significant federal interest in this site,
which would be negatively impacted by the proposed development.

AFRH-W 1315 - 3700 NORTH CAPITOL STREET NW

WASIIINGTON DC 20011-8400

** JPA.93 **
T (202) 819-0436 F (202) 829-04;7 LINCOLNCOTTAGE.ORG

A NATIONAL TRUST HISTORIC SIT/-

There are two key places with existing views ofthe Capitol Dome that are currently
available to the visiting public. Those two locations are in front of the Visitor Education
Center and the western part ofthe South Lawn ofthe Cottage. The diagrams prepared
by NCPC staff, shown only briefly at the November 6 hearing, were notfrom either of
these two locations and therefore wrongly suggested there are no views worth
preserving. The proposed development would obstruct these views.

In addition to these two clear and (currently) unobstructed views ofthe Capitol Dome
that are available to our visitors at President Lincoln's Cottage,there is another
historically important—albeit seasonal—view of the Capitol Dome that is at risk. This is
the view ofthe Dome from the second floor ofthe Cottage. The view that the NCPC staff
provided appeared to be projected from the second floor above the veranda. While that
room does have a view of the Capitol Dome,it is not the only view. For example, more
than 40 feet northeast is the "Emancipation Room," so named because when the Cottage
itself was threatened over 100 years ago,citizens of Washington, DC protested the
proposed demolition or relocation on the grounds that Lincoln drafted the
Emancipation Proclamation in that very room. Again,the staff diagrams erroneously
suggested that any view from the second floor is already blocked by structures year-
round.

The National Trust's responsibility to protect President Lincoln's Cottage extends

beyond the house itself and includes the surrounding landscape and viewshed, which
are essential to understanding Lincoln's time there, as well as the perspectives he gained
by virtue of being there. We offer programs including tours and events to the public 362
days per year,inside and outside, day and night. The nighttime views ofthe illuminated
Capitol Dome currently available to our visitors are especially impressive and impactful.
These views provide context and a point of reference for visitors local, national, and
international, all of whom instantly recognize the Capitol Dome. Destruction ofthat
connection to Lincoln's view—the symbol ofdemocracy he worked to maintain—would
be a significant loss.

Much has been made of the view from the historic Scott Statue,a view not available to
the general public as it is beyond the boundaries of visitation, which are demarcated by
walkways and roadways on the grounds. President Lincoln's Cottage visitors are not
permitted to venture past the boundaries of visitation and the Scott Statue is well over
1,000 feet beyond that boundary, making those views inaccessible to the public.

President Lincoln's Cottage was an environment that allowed Abraham Lincoln to create
the Emancipation Proclamation in 1862. Living here brought Lincoln closer to the war
and its human cost, providing him with new perspectives on the cause and purpose of
the conflict. We specifically point out to our visitors that the Statue of Freedom, which
they can see on top ofthe Capitol Dome, was constructed by an enslaved
Washingtonian, Philip Reid, beginning in 1860. Fortunately,this skilled craftsman was

** JPA.94 **
emancipated from slavery during the Civil War and finished the statue in 1863 as a free
nian. The ability ofthe visitors to make that connection -- standing outside the Cottage,
the cradle of Lincoln's Emancipation Proclamation, while contemplating the symbol of
our democracy capped by Reid's Statue of Freedom -- is priceless.

Today,that world of civil war and slavery, reunion and emancipation is difficult to
recapture walking the streets of Washington, DC. Nowhere else in DC is such a view
available for the general public.It serves as a beautiful reminder of what we can nobly
and justly accomplish for ourselves and the future.

The assertions made by the NCPC staff that these views do not exist are flatly erroneous,
and the proposed development would in fact obstruct these significant views. We ask
that the NCPC revisit its improvident approval ofthe map amendment in light ofthis
information.

We appreciate the opportunity to correct these errors for the record.

Sincerely,
)

arl ast
Executive Director

cc: Armed Forces Retirement Home

DC Zoning Commission

** JPA.95 **
[BLANK PAGE]

** JPA.96 **
 1

DISTRICT OF COLUMBIA

HISTORIC PRESERVATION REVIEW BOARD

HEARING

---------------------------------
IN THE MATTER OF: :
:
Application of Vision McMillan : HPA 14-393
Partners, LLC, and the District : HPA 15-133
of Columbia Office of the :
Deputy Mayor for Planning and :
Economic Development :
---------------------------------

Friday,
July 14, 2017

The meeting of the District of

Columbia Historic Preservation Review Board
convened in Room 220 South at 441 4th Street, NW,
Washington, DC 20001, pursuant to notice, at
10:00 a.m., Peter Byrne, presiding.

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.97 **
 2

APPEARANCES:

On Behalf of the Applicants:

CAROLYN BROWN, ESQ.

Donohue and Stearns, PLC
1750 K Street, NW
Suite 12-34
Washington, DC 20006
(202) 763-7538
carolynbrown@donohuestearns.com

Contesting the Applicants:

ANDREA C. FERSTER, ESQ.

2121 Ward Court, NW
5th Floor
Washington, DC 20037
(202) 974-5142
aferster@railstotrails.org

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.98 **
 3

C-O-N-T-E-N-T-S

WITNESS PAGE
Brian Kenner . . . . . . . . . . . . . . . . . . .26

Chris Ruiz . . . . . . . . . . . . . . . . . . . .90

Emily Eig. . . . . . . . . . . . . . . . . . . . 106

Matt Bell. . . . . . . . . . . . . . . . . . . . 124

Adam Weers . . . . . . . . . . . . . . . . . . . 212

Len Bogorad. . . . . . . . . . . . . . . . . . . 240

Aakash Thakkar . . . . . . . . . . . . . . . . . 251

Shane Dettman. . . . . . . . . . . . . . . . . . 285

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.99 **
 4

1 P-R-O-C-E-E-D-I-N-G-S

2 10:03 a.m.

3 DR. BYRNE: Good morning, ladies and

4 gentlemen. My name is Peter Byrne and I am the

5 designated Mayor's agent hearing officer for this

6 matter which addresses a remand from the Court of

7 Appeals on applications to demolish underground

8 cells and an application to subdivide at the

9 McMillan sand filtration site at 2501 First

10 Street, NW, for the construction of a mixed-use

11 project.

12 These applications are assigned

13 Historic Preservation Act numbers 14-393 and 15-

14 135.

15 The case is being heard under the

16 authority of D.C. law 2-144 the Historic Landmark

17 and Historic District Protection Act of 1978.

18 This law requires the Mayor or her

19 agent to review proposed subdivisions and permit

20 applications for demolition, alteration, and new

21 construction on the site of historic landmarks or

22 within historic districts.

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.100 **
 5

1 Previously the Mayor's agent cleared

2 permits for the demolition of cells on April 13,

3 2015 and for the subdivision on August 14, 2015.

4 On December 8, 2016 the D.C. Court of

5 Appeals vacated those decisions and remanded the

6 cases for more specific findings under corrective

7 legal standards.

8 On January 11, 2017 the Mayor's agent

9 issued an order setting the issues to be

10 addressed on this remand.

11 In that order it was said that the

12 issues were four.

13 Number one, do the proposed projects

14 Historic Preservation Act as taken as a whole

15 outweigh its historic preservation harms.

16 In addressing this question the

17 parties are requested to provide legal analysis

18 as to how such an inquiry should be conducted

19 consistent with the act.

20 Number two, what are the specific

21 architectural land planning and/or community

22 benefits that individually or collectively may

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.101 **
 6

1 make this a project with special merit within the

2 meaning of D.C. Code 6-110211.

3 Three, is the proposed demolition and

4 subdivision necessary to obtain the special merit

5 benefits identified. Could an economically

6 viable mixed use development meeting the goals of

7 the comprehensive plan be constructed on the site

8 with less demolition and no subdivision.

9 Let me note there that although it

10 says no subdivision I understand the point being

11 as raised by Ms. Ferster in her brief less

12 subdivision is also relevant.

13 Number four, are there reasonable

14 alternatives that would achieve the same special

15 merit benefits that would avoid or reduce the

16 need for demolition or subdivision.

17 So the parties in this proceeding may

18 present testimony and evidence supplementary to

19 the existing record and legal argument, and in

20 doing so are enjoined to coordinate presentations

21 and to remain within the scope of the issues

22 stated in that order.

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.102 **
 7

1 Everything that has been entered into

2 the record in the prior cases remains in the

3 record. And I ask the parties to please try to

4 avoid duplication.

5 This hearing will be conducted in

6 conformance with the D.C. Administrative

7 Procedure Act and Title 10C of the District of

8 Columbia Municipal Regulations which contain the

9 rules of procedure for the Mayor's agent pursuant

10 to the preservation law.

11 They don't specifically address

12 process on remand so these must be set by the

13 Mayor's agent.

14 The order of proceeding and

15 presentation of evidence shall be as follows.

16 We'll have the consideration of pending motions

17 and other procedural matters.

18 We'll move to a presentation of the

19 applicant's case. We'll have any reports or

20 statements by public agency representatives.

21 We'll have presentation by the parties

22 in opposition to the applications. We'll have

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.103 **
 8

1 time for brief statements by other persons either

2 in support of or in opposition to the application

3 within the terms of the remand.

4 Six will be rebuttal by the applicant

5 and seven will be sur rebuttal by the parties in

6 opposition to the application.

7 And the parties will have until

8 September 8, 2017 to submit proposed findings of

9 fact and conclusions of law.

10 So, there is a motion that is before

11 the Mayor's Agent to disqualify the current

12 Mayor's Agent as the director of the Office of

13 Planning and also to disqualify the Mayor's Agent

14 hearing officer based upon an argument that the

15 structural relationship of those parties to one

16 of the applicants makes proceeding by us

17 inconsistent with due process or the ECE

18 Administrative Procedure Act.

19 It's based essentially on structural

20 matters.

21 The director of the Office of Planning

22 is essentially a subordinate of the Deputy Mayor

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1 for Planning and Economic Development which was

2 an applicant in this case.

3 The director of the Office of Planning

4 as the Mayor's Agent has to sign off on all

5 Mayor's Agent substantive decisions, final

6 decisions.

7 The argument continues that any

8 independence by the Mayor's Agent hearing officer

9 doesn't cure this problem because the director of

10 the Office of Planning as the Mayor's Agent must

11 confirm decisions even if the hearing officer has

12 prepared proposed findings of fact and

13 conclusions of law.

14 There's no claim of personal bias or

15 personal interest in the matter. The issues are

16 addressed as structural.

17 And I'm going to deny this motion and

18 I'm going to give brief reasons now and we'll

19 supplement them when the time comes to write

20 proposed findings of fact and conclusions of law.

21 Now, the structure here provides that

22 these cases involving demolition of a subdivision

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1 are handled by the Mayor, and the Mayor has

2 always delegated this to a variety of Mayor's

3 Agents over the years.

4 It has been the director of the Office

5 of Planning now for a number of years pretty much

6 since the Historic Preservation Office went into

7 the Office of Planning.

8 Initially after that the director of

9 the Office of Planning herself at the time was

10 Harriet Tregoning adjudicated a number of these

11 cases personally.

12 And this was found to be awkward,

13 time-consuming and the director of the Office of

14 Planning is not a lawyer which is a disadvantage

15 in this case.

16 But the director -- so at that point

17 the Historic Preservation Office had the idea of

18 enlisting essentially a neutral party, and their

19 idea was a law professor who had written about

20 and taught Historic Preservations Act as the

21 Mayor's Agent.

22 I am not an employee of the District

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1 of Columbia. I am a contractor paid a modest

2 honorarium to do these cases and I prepare draft

3 findings of fact and conclusions of law that the

4 Mayor's Agent must confirm.

5 And if you look at the orders that's

6 the way it's styled, confirms the proposed

7 findings of fact and conclusions of law.

8 Under the Mayor's delegation to the

9 director of the Office of Planning he must remain

10 free to make his own decision to accept or reject

11 my proposal.

12 However, under my contract I did not

13 sign any changes that the director of the Office

14 of Planning may make and can in fact resign if in

15 my sole judgment the Office of Planning has lost

16 confidence in my performance.

17 So, turning to the specific reasons

18 for rejecting the motion, number one, under the

19 existing precedents the director of the Office of

20 Planning should not be disqualified.

21 The leading precedent here for short

22 is the Rhodes Tavern case decided by our court of

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1 appeals in 1981.

2 And in that case it was a private

3 development of the property now known as

4 Metropolitan Square which involved the demolition

5 of the Rhodes Tavern which had been the first

6 city hall in Washington, D.C. It was a very

7 controversial case.

8 The Mayor Marion Barry had made very

9 strong statements in support of demolition of

10 Rhodes Tavern in order for the project to go

11 forward.

12 The opponents of the demolition argued

13 that the Mayor's Agent could not fairly

14 adjudicate the case because they were a D.C.

15 employee who were subservient to the Mayor.

16 However, in the case the D.C. Court of

17 Appeals rejected that view finding no merit in

18 the claim.

19 They said that the issue was not the

20 structural relationship among the parties between

21 the decision-maker and the Mayor, but that the

22 issue really turned on whether the decision-maker

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1 had been the recipient of ex parte communications

2 from an advocate of one of the parties who had a

3 personal interest or bias on the part of the

4 decision-maker.

5 In the absence of either of these

6 circumstances we cannot conclude the petitioner

7 was denied due process.

8 And the court looked at the record in

9 the case and found that it had been decided based

10 upon reasonable findings of fact and conclusions

11 of law.

12 Subsequently in the Third Church of

13 Christ Scientist case is a Mayor's Agent matter

14 where the director of the Office of Planning in

15 fact acted as the Mayor's Agent, hearing officer

16 and Mayor's Agent just herself.

17 The parties argued that she should be

18 disqualified and she rejected that based upon the

19 Rhodes Tavern case.

20 And I note that in the case that is

21 colloquially referred to as the Big K case which

22 involved properties on Martin Luther King, Jr.,

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1 Avenue in Southeast Washington the Deputy Mayor

2 of Planning and Economic Development was an

3 applicant in the case before me as the Mayor's

4 Agent.

5 And that was in my decision in favor

6 of altering the historic properties was confirmed

7 by the director of the Office of Planning.

8 So this is something which has

9 existed. So that this is the pattern that the

10 law lays down and has been followed over time.

11 The distinction drawn by Friends of

12 McMillan Park here is that when deputy is an

13 applicant the situation is different.

14 The argument in some sense is that the

15 Deputy Mayor of Planning and Economic Development

16 has an economic stake in granting the permit.

17 And they point to statements in the

18 applicant's brief about the economic benefits

19 that can come from the project.

20 And here they seem to be linking up

21 with the statements by the court of appeals that

22 the case is different if there is an individual

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1 interest in the outcome of the case.

2 But these benefits are in no way

3 personal to the Deputy Mayor, or to the Office of

4 Planning, or to the Mayor for that matter.

5 The economic benefits alleged are the

6 fruits of a development that benefit the District

7 of Columbia as a whole through the typical

8 benefits of -- the economic benefits that come

9 from any development.

10 It is alleged and we are going to talk

11 further about the fact that there are other

12 benefits here which are not monetary.

13 But those benefits are the same as

14 would exist in a project like Metropolitan Square

15 which would generate jobs, employment, and tax,

16 real estate tax, tax benefits.

17 The interest of the Deputy Mayor is in

18 the implementation of policy initiatives believed

19 rightly or wrongly to benefit the District of

20 Columbia as a whole. As such it's no different

21 from the Rhodes Tavern case.

22 The second and independent point, that

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1 even if I am wrong in my analysis of the

2 application of Rhodes Tavern the fair process is

3 provided here by the participation of the Mayor's

4 Agent and the hearing officer.

5 I have no stake at all in the outcome

6 of this case except for my reputation as a

7 scholar, as an expert in historic preservation.

8 And any indication that my decision

9 was other than on the merits would be frankly

10 disastrous to my professional reputation.

11 I can walk away from this job at any

12 moment and it probably would improve my economic

13 position.

14 If the Friends of McMillan Park say

15 that this doesn't avoid the problem because the

16 Mayor's Agent who is the director of the Office

17 of Planning must sign all the substantive orders.

18 But I sign also and I would not, nor

19 would my interest be served by signing any order

20 that I thought was inconsistent with my

21 professional opinion and my contract preserves my

22 right to do that.

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1 So in my view this check provides an

2 independent structural assurance that the

3 decision-making process in this case is

4 consistent with the rights of everyone provided

5 by the District of Columbia Administrative

6 Procedure Act.

7 Are there any other motions or

8 procedural matters to take up before we move to

9 the applicant's case? Ms. Brown?

10 MS. BROWN: Good morning, Mr. Byrne.

11 I did have one clarification question about

12 whether or not our request to amend the

13 application to include the consistency test was

14 specifically granted or if that will be held till

15 the order is issued.

16 DR. BYRNE: No, that is granted. I

17 should have been more explicit in the order that

18 I issued.

19 MS. BROWN: Thank you.

20 MS. FERSTER: Good morning, Professor

21 Byrne. Andrea Ferster for Friends of McMillan

22 Park. I have two preliminary questions really.

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1 One is that in your order basically

2 allowing the applicants to -- granting the

3 applicant's motion to address issue number one in

4 our view it essentially opens up -- takes the

5 position that the applicant is free to re-

6 litigate issues that had already been addressed

7 or resolved during the prior hearing that were

8 not subject to appeal.

9 And in that case the Friends of

10 McMillan Park wish to also introduce evidence

11 through a witness on the issue of the condition

12 of the cells which was an issue as you know that

13 we did project evidence on before the Mayor's

14 Agent but we did not appeal that issue before the

15 D.C. Court of Appeals.

16 So in light of the opportunity now to

17 revisit issues that were previously resolved we

18 would ask at this point if you would entertain a

19 motion in limine to allow our structural engineer

20 Susan Burmeister to return to testify on the

21 issue of the cells in order to supplement the

22 testimony that she had previously issued.

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1 Because this issue has come up quite

2 late because we think that prior to when you

3 issued your decision on the 12th we -- or 13th I

4 think it was. Anyway, we did not understand that

5 we would have that opportunity.

6 So we contacted Susan Burmeister and

7 very fortunately she is available to testify

8 today. But she is on standby.

9 And so what I would like to do if you

10 are willing to entertain the testimony of Susan

11 Burmeister as our expert witness to supplement

12 her original testimony on the issue of the

13 structural condition of the cells and the ability

14 to adaptively reuse them and stabilize them then

15 we would immediately let her know so that she

16 could be made available during the appropriate

17 time of our testimony.

18 That's my first issue which would be

19 essentially in the form of a motion for you to

20 rule on the admissibility of that evidence.

21 DR. BYRNE: Would you say that this

22 goes to any of the before issues specified.

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1 MS. FERSTER: It definitely goes to

2 the issue of alternatives. Because of course one

3 of the alternatives that we have presented during

4 the demolition proceeding were the alternative

5 adaptively reusing the cells.

6 But then again since we had not

7 appealed that issue to the court of appeals and

8 the court of appeals didn't address it we had

9 been assuming previously that we would not be

10 permitted to reopen that issue.

11 But at this point it seems that that

12 opportunity now exists.

13 MS. BROWN: I don't have an objection

14 to it.

15 MS. FERSTER: And I have one other

16 request and that is in light of the careful

17 decision, bench decision that you've just

18 rendered on our motion to disqualify, in light of

19 the fact that part of the evidentiary basis for

20 your decision was your contract with the Office

21 of Planning I would ask that you make that

22 contract part of the record, of course redacting

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1 any personal information that you think is

2 inappropriate.

3 DR. BYRNE: Sure. I have no problem

4 with that.

5 Okay, good. I think then we're ready

6 for -- Mr. Otten.

7 MR. OTTEN: Good morning, Mr. Byrne.

8 I just wanted to check in. Chris Otten

9 representing D.C. for Reasonable Development here

10 to present our case today.

11 DR. BYRNE: Okay, thank you.

12 MS. MERRITT: Following up on Chris's

13 introduction I'm Elizabeth Merritt representing

14 the National Trust which is also a party in

15 opposition. Thank you.

16 DR. BYRNE: Okay. I'm wondering to

17 what extent the opponents have had an opportunity

18 to coordinate their presentations as I had

19 requested in my order of January 11.

20 Well, let's leave that as a rhetorical

21 question.

22 MS. BROWN: I'll get my witnesses up

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1 here at the table and we'll get started.

2 Good morning again. For the record my

3 name is Carolyn Brown with the law firm of

4 Donohue and Stearns on behalf of the applicant

5 Vision McMillan Partners.

6 To my left is the attorney

7 representing the Office of the Deputy Mayor for

8 Planning and Economic Development. He will make

9 a brief statement but I am here to present the

10 case on behalf of both parties that are the

11 applicant.

12 MR. LANE: Hello, my name is Matthew

13 Lane. I'm with the Public Interest Division of

14 the Office of the Attorney General. As Ms. Brown

15 said representing the Deputy Mayor's Office.

16 And I just wanted to confirm that

17 there have been questions raised as to whether

18 previous filings were filed properly on behalf of

19 both parties.

20 And I do want to confirm that the

21 Deputy Mayor's Office is in support of the

22 previously filed documents and we are ready to

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1 move forward at this point.

2 DR. BYRNE: Thank you, Mr. Lane.

3 MS. BROWN: Thank you for the

4 opportunity for us to be here today. We have

5 eight witnesses that are going to address the

6 four remand issues that you identified in your

7 January 11 scheduling order.

8 In order to establish the foundation

9 for some of these remand issues we may present

10 some testimony that is somewhat repetitive but

11 we're trying to limit it as much as possible.

12 But we believe it's important to make

13 sense of our arguments, and certainly for some of

14 the people in the room that haven't been here

15 before.

16 But again we're going to try to keep

17 it to a minimum.

18 With respect to remand issue number

19 one we believe the court of appeals clearly told

20 us that the balancing of the net preservation

21 benefits against the net preservation harms does

22 have to be considered under the consistent test.

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1 And I believe that is a clear holding

2 of the case as opposed to dicta.

3 If a future applicant pursued

4 demolition under the special merit test and

5 claimed the balancing test between harms and

6 benefits of the preservation features I think it

7 would have to be thrown out under the decision

8 that the court rendered.

9 So our evidence today will show that

10 the net preservation gains far exceed the

11 preservation losses particularly in light of the

12 deteriorated and unstable condition of the

13 underground features to be demolished and their

14 ubiquitous and inaccessible qualities.

15 With respect to remand issue number

16 two, the special merit features of the project

17 our witnesses will explain what we believe are

18 the special merit features of the project.

19 For your convenience we have prepared

20 a list which I'll hand out in a moment which

21 succinctly lists what we think those special

22 merit features are.

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1 We have also expanded on the economic

2 and positive fiscal impacts that the court

3 indicated could contribute to special merit.

4 I know you had a ruling in your

5 footnote saying that you didn't want to consider

6 that, but I think particularly as it pertains to

7 the healthcare facility that the court asked for

8 clarification on that I think it's relevant.

9 Finally, our witnesses will address

10 the necessity of demolition and the alternatives

11 explored under remand issue number three and

12 four.

13 With that I would like to turn to our

14 first witness Mr. Brian Kenner, the Deputy Mayor

15 for Planning and Economic Development.

16 DR. BYRNE: Good morning, Mr. Kenner.

17 MR. KENNER: Good morning.

18 DR. BYRNE: So, as the Mayor's Agent

19 here because it's a contested case we ask the

20 witnesses to swear to tell the truth.

21 So could I at this point then ask all

22 of the applicant's witnesses if you'll please

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1 cooperate with me here and just -- you don't have

2 to come up, but if you just raise your hand

3 please.

4 (Whereupon, the witnesses were sworn

5 in.)

6 DR. BYRNE: Thank you all. Please

7 proceed, Mr. Kenner.

8 MR. KENNER: Good morning, Mr. Byrne.

9 My name is Brian Kenner. I am the Deputy Mayor

10 for Planning and Economic Development.

11 On behalf of the Bowser Administration

12 I am privileged to be here today to voice our

13 continued and unwavering support for the McMillan

14 development project.

15 Thank you for conducting this hearing

16 to address the decision from the D.C. Court of

17 Appeals.

18 My testimony this morning will focus

19 on issue two with relation to the specific land

20 planning elements that make this project of

21 special merit.

22 The mixed use development of McMillan

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1 is a high priority for the city. It provides

2 significant benefits to the District of Columbia

3 and to the community by virtue of its exemplary

4 architecture, specific features of land planning,

5 and social or other benefits having a high

6 priority for community services.

7 After more than 30 years of planning

8 McMillan will fulfill the city's long-term goal

9 for the site through numerous administrations.

10 The McMillan master plan memorializes

11 these important goals that include a nine-story

12 healthcare facilities, mixed income and varying

13 types of housing which include market rate,

14 moderate, and low-income townhomes, market rate

15 senior and affordable rental units.

16 It is also important to mention that

17 the 20 percent affordable McMillan set-aside

18 exceeds the 10 percent set-aside as required by

19 law at the time of our inclusionary zoning.

20 A full service grocery store,

21 community serving retail along the north service

22 court, community center with swimming pool, park

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1 and plaza that include a playground for kids all

2 ages, gathering spaces for people and families,

3 and active and passive recreation areas.

4 In addition, activation of McMillan's

5 historic significance is also unique, including

6 programming of historic structures within both

7 the north and south service courts through arts,

8 retail and public uses, establishment of a new

9 Olmstead Walk, creation of a development wide

10 walking museum.

11 Extensive community input from

12 hundreds of community meetings over the past 30

13 years and approvals from the subject advisory

14 neighborhood commission, the National Capital

15 Planning Commission, the Historic Preservation

16 Review Board, the U.S. Commission on Fine Arts,

17 and the D.C. Council inform what the district's

18 priorities for community services should be which

19 include a full service grocery store, housing

20 including senior and affordable housing, public

21 purposes including a community center with pool,

22 public plaza, playground, recreational spaces,

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1 and activation of both service courts,

2 beautification projects in the immediate vicinity

3 in coordination with specific community groups,

4 jobs from construction activity and permanent

5 uses anchored by commercial uses particularly for

6 Ward 5 residents, and more than $1 billion in

7 positive fiscal and economic impacts.

8 When these high priorities of the

9 executive branch were endorsed by the legislative

10 proposal -- when these high priorities of the

11 executive branch were endorsed by the legislative

12 branch the Committee on Economic Development

13 provided the following in their report, and I

14 quote.

15 "We recommend approval of the

16 disposition because they represent a thorough and

17 balanced development that is the culmination of

18 years of planning, community engagement and

19 execution by the district government, Vision

20 McMillan Partners, and many affected ANCs,

21 community groups and stakeholders.

22 "While no development will make every

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1 person involved happy the proposed McMillan

2 development provides economic development,

3 cultural, commercial and recreational opportunity

4 to an area that has seen this site vacant and

5 fenced off for decades.

6 "Development would produce thousands

7 of jobs and millions of dollars in revenue.

8 Hundreds of housing units, 20 percent of which

9 will be affordable would be created along the

10 acres of new park and open spaces.

11 "This development would work to

12 reactivate an area that has lain dormant for many

13 years permitting a new community and destination

14 for the city," end quote.

15 Other features of special merit that

16 will be addressed by other witnesses include

17 exemplary architecture through thoughtful

18 integrated design and cohesive architectural

19 treatment of individual parts, specific features

20 of land planning through integration of site with

21 community, healthcare facility, creation of a

22 medical district, internal circulation patterns

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1 to preserve views, transportation benefits, and

2 environmental benefits, and other benefits having

3 a high priority for community services including

4 a public art master plan as well as certified

5 business entity and first source employment

6 agreements.

7 In conclusion, we respectfully request

8 that you clear the pending demolition permit to

9 allow the city's specific goals for reuse of the

10 McMillan site to continue.

11 Thank you for the opportunity to

12 testify before you as a part of this limited

13 scope hearing. Our team will be pleased to

14 answer any questions you may have.

15 DR. BYRNE: Very good. So, I think

16 one question we have is do you want to ask them

17 any questions? We should have cross examination.

18 I'm wondering how physically you'd do it in this

19 room.

20 So do you want to ask any questions to

21 clarify anything he said?

22 MS. BROWN: I do have just one very

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1 quick question, Mr. Deputy Mayor. You listed a

2 number of public benefits, amenities that have

3 high priority for community services.

4 Do you feel that those features are

5 common to all projects in the city?

6 MR. KENNER: I feel that many of them

7 are. I mean each project is probably unique but

8 I think that many of them are.

9 MS. BROWN: Common to all projects or

10 to this project? I mean a special feature for

11 this project.

12 MR. KENNER: I think there are some

13 special features for this project.

14 MS. BROWN: Thank you.

15 DR. BYRNE: Okay. All right. Well,

16 Ms. Ferster, do you want to ask any questions of

17 the Deputy Mayor?

18 MS. FERSTER: The Deputy Mayor did

19 indicate that a number of the points that he

20 touched on in his testimony would also be

21 elaborated on by other witnesses, so perhaps for

22 efficiency's sake we would hear all their

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1 testimony.

2 And then what I've done in the past is

3 pose my questions to the team and they pick who

4 the most appropriate person is to answer,

5 although I will of course have some specific

6 questions for specific witnesses.

7 DR. BYRNE: I like that. That sounds

8 good.

9 MS. BROWN: No objection.

10 DR. BYRNE: That sounds great.

11 MR. LANE: We would just like --

12 because the Deputy Mayor has a busy schedule we

13 would prefer to allow him to be dismissed once

14 he's finished. So if we could move that along at

15 this point rather than at the end of the

16 proceedings that would be very beneficial at this

17 point.

18 DR. BYRNE: Thoughts.

19 MS. FERSTER: What often happens in

20 this context and this is what I'm trying to avoid

21 is that I have a number of questions that are

22 appropriate for many witnesses.

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1 And what happens is if I ask the short

2 version, the specific question to the Deputy

3 Mayor then I ask questions to the other team and

4 they say well actually the Deputy Mayor is the

5 appropriate person to answer that. He's gone.

6 That's my issue.

7 MS. BROWN: I think it's perfectly

8 reasonable to allow the Deputy Mayor for Planning

9 and Economic Development to have his cross

10 examination questions now.

11 He can only answer what is in the four

12 corners of his testimony today so if she has

13 questions on the testimony that he just presented

14 then I think that's appropriate right now.

15 DR. BYRNE: Well, I do want to

16 accommodate the schedule of an important city

17 employee.

18 So maybe what we could do is if Ms.

19 Ferster has questions and then as if the

20 situation arises where she has a question where

21 the other witnesses say you have to ask the

22 Deputy Mayor then we can figure out how to manage

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1 that at that point.

2 Is that okay, Ms. Ferster?

3 MS. FERSTER: That's fine depending --

4 DR. BYRNE: Depending on the

5 questions.

6 MS. FERSTER: Yes, and it may require

7 calling him back as a witness. If that's an

8 option that's acceptable to me.

9 And then I apologize because I would

10 probably have a much lengthier cross examination

11 than I would have otherwise because I suspect

12 that some of the questions he will defer to other

13 witnesses for. But I need to go through that

14 anyway.

15 DR. BYRNE: Okay, I appreciate that.

16 Thank you.

17 MS. FERSTER: Good morning.

18 MR. KENNER: Good morning.

19 MS. FERSTER: Let's talk about first

20 the issue of the fiscal and employment benefits

21 of this project.

22 You have testified in response to a

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1 question from Ms. Brown that some of the benefits

2 that you elaborated on in your testimony were

3 special and somewhat common to all projects.

4 In terms of the fiscal, the tax

5 revenues and the employment gains from this

6 project are these -- would you view these fiscal

7 and employment benefit from this project to be

8 comparable to other I would say similarly sized

9 projects in terms of your land area or gross

10 square feet?

11 MR. KENNER: I think in terms of just

12 the parameters of tax revenue as an example which

13 are primarily derived from in this case

14 residential, office as well as retail property

15 taxes, sales tax compared to other projects that

16 have equal square footage as an example of

17 office, and retail, and residential that I think

18 eventually changes a little bit, but generally

19 the tax valuations would be similar for projects

20 that have similar percentages of utilization.

21 I think that one of the unique things

22 about this is that you rarely get such diverse

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1 uses in a project that's on city-owned land.

2 MS. FERSTER: Thank you. And then I'm

3 just sort of curious about the issue of

4 affordable housing.

5 A number of development projects that

6 are public-private development projects

7 incorporate affordable housing into them.

8 Does that affect the tax revenue that

9 the District of Columbia gains? I mean, would

10 that lower the revenue if you include affordable

11 housing for low and very low-income households?

12 MR. KENNER: That's probably a better

13 question for the Office of Tax and Revenue to

14 answer. I'm not exactly sure how they do all

15 taxation for all affordable units in the city.

16 MS. FERSTER: Okay, well let me just

17 follow up briefly on that. Would that be a

18 factor in your decision? For example, if when

19 the projected fiscal benefit from a project were

20 presented to you would you factor in the fact

21 that there might be lower fiscal benefits if

22 there were more affordable housing, or do you

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1 simply look at whether or not there were

2 significant fiscal benefits in terms of the

3 objective number.

4 MR. KENNER: I'm sorry, can you say

5 that question again?

6 MS. FERSTER: Yes. The brief version

7 of that question is that if a project has a lower

8 fiscal benefit to public-private partnership

9 projects such as this one has lower fiscal

10 benefits because it includes more affordable

11 housing for low and very low-income individuals

12 when you make a decision about the type of

13 project would that be a factor, the level of

14 fiscal benefits?

15 MR. LANE: I'd object on this is

16 outside the scope of the testimony.

17 MS. BROWN: I can follow up on that.

18 I think that deliberately or unintentionally I

19 think she restated what she thought his testimony

20 was about this having lower value because of the

21 affordable housing component. And I don't think

22 that was his testimony.

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1 MS. FERSTER: No, I didn't. That

2 wasn't my reading of his testimony.

3 DR. BYRNE: I'm sorry, would you state

4 the question again? Just try to do it in a way

5 that's within his testimony.

6 MS. FERSTER: Well, you did testify

7 that one of the special benefits of this project

8 is the fact that it's affordable housing. But in

9 fact the affordable housing that's in this

10 project does not include any affordable housing

11 for very low and low-income individuals, that is

12 correct. Isn't it?

13 MR. KENNER: I don't know how you

14 define very low. HUD has definitions for income

15 so are you referring to those definitions?

16 MS. FERSTER: Yes, I am.

17 MR. KENNER: Okay.

18 MS. FERSTER: So this project does not

19 include any --

20 MR. KENNER: This project has

21 affordable housing units for people that are at

22 below 50 percent of AMI as well as below 60

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1 percent of AMI.

2 MS. FERSTER: Below, okay. I did not

3 know that. How many units of housing are for

4 households earning below 50 percent AMI?

5 MR. KENNER: We've got I think in

6 total for the project 85 units that are at or

7 below 60 percent of AMI and 11 units that are at

8 or below 50 percent of AMI.

9 MS. FERSTER: Okay. So my question

10 actually was below 50 percent AMI, not at or

11 below.

12 MR. KENNER: I'm sorry, I'm using the

13 HUD definition which is at or below.

14 MS. FERSTER: Okay, well my question

15 has to do with below 50 percent.

16 MR. KENNER: There is --

17 DR. BYRNE: I don't want to quibble

18 about at or below. I think he's answered the

19 question.

20 MS. FERSTER: Okay. So given that,

21 that there is no affordable housing in this

22 project for individuals below 50 percent of the

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1 AMI --

2 MR. KENNER: So that's not the HUD

3 definition.

4 MS. FERSTER: Understood. Understood.

5 (Simultaneous speaking)

6 MR. KENNER: -- at or below 50 percent

7 of AMI. At or below 60 percent of AMI, and at or

8 below of 80 percent of AMI.

9 MS. FERSTER: Understood.

10 Understanding that there's no affordable housing

11 in this project for individuals below 50 percent

12 of the AMI.

13 MR. KENNER: Again, the HUD definition

14 is at or below 50 percent of AMI.

15 DR. BYRNE: Is your point that there's

16 not a band that's reserved for people for example

17 at 30 percent or lower, is that your point?

18 He said at or below 50 percent, so if

19 you're below 50 percent you could have 20 percent

20 of AMI.

21 MS. FERSTER: And I'm really not

22 asking him about HUD definitions. I'm asking

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1 about the fiscal benefits. And the question, I

2 was trying to restate the question.

3 DR. BYRNE: I'm sorry.

4 MS. FERSTER: And the question about

5 fiscal benefits is given the fact that there's no

6 affordable housing for people below 50 percent in

7 the project wouldn't that naturally make that

8 project more attractive to your agency in terms

9 of its fiscal revenue because there would be

10 lower tax revenue from a project that included

11 more very low and low-income affordable housing?

12 MR. LANE: Objection to the

13 characterization and the confusing nature of the

14 question.

15 DR. BYRNE: Yes, it strikes me as

16 rhetorical.

17 MS. FERSTER: Okay. You have

18 testified about the component of the project

19 which is a healthcare facility. And so, and in

20 your written testimony meaning you identify that

21 as a specific feature of land planning.

22 So as a healthcare facility do you

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1 believe that that healthcare facility requires a

2 certificate of need from the District of Columbia

3 government in order to be developed?

4 MR. LANE: Objection, scope.

5 DR. BYRNE: Do you want to explain why

6 you think it's within the scope?

7 MS. FERSTER: He did testify that the

8 healthcare facility is a component of the

9 project, is a special merit benefit and the issue

10 that we wonder about is if it's a healthcare

11 facility and therefore requires a certificate of

12 need that -- and receives a certificate of need

13 that would be in our view a stronger indication

14 that this healthcare facility is special.

15 DR. BYRNE: But I don't know that he

16 knows what the rules are and I certainly know

17 what the rules are.

18 MS. FERSTER: Right, so do you know

19 whether or not the applicant intends to apply for

20 a certificate of need. That's simply the

21 question.

22 DR. BYRNE: Could we just answer the

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1 question?

2 MR. KENNER: Yes, I have no idea.

3 DR. BYRNE: That's fine.

4 MS. FERSTER: You did not testify in

5 any way about alternative designs for the

6 project. So if I were to pose a series of

7 questions about alternative designs would you

8 view that as outside the scope of this testimony?

9 MR. LANE: I would object in that by

10 definition it would be outside the scope.

11 MS. FERSTER: So if my question were

12 did the Deputy Mayor's Office ever consider

13 alternative designs that would have reduced the

14 impacts on historic properties in this project

15 would you object to that question?

16 MR. LANE: I would object as outside

17 the scope.

18 DR. BYRNE: I think that's right. I

19 think that's a legitimate question, but it's not

20 a legitimate question on cross examination.

21 MS. FERSTER: That's fine. Then the

22 record will reflect that, that there was no

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1 testimony on that point.

2 Okay, you did testify about the

3 stormwater management features of the project

4 that you view as special merit as well as the

5 project's LEED silver certification. So I had a

6 couple of questions about that.

7 In your experience with other -- and

8 this goes to the question of whether it's

9 special, of other development projects that come

10 within the purview of your office do you ensure

11 that those developments also achieve a LEED

12 silver certification?

13 MR. LANE: I'm going to object on

14 relevance. The Mayor's Agent has held in prior

15 hearings in this matter that the public benefits

16 for non-historic projects are not relevant to the

17 issues in this matter.

18 MS. FERSTER: Unless you're arguing

19 that these are special.

20 DR. BYRNE: I'm going to let him

21 answer.

22 MR. KENNER: Sorry, can you restate

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1 the question.

2 MS. FERSTER: In other public-private

3 development projects that have come within the

4 purview of your office has LEED silver

5 certification been something that has been part

6 of those projects?

7 MR. KENNER: I think it probably

8 depends on the project. So, I mean we deal with

9 a lot of different projects so I'd have to -- I'm

10 not familiar with whether we've achieved LEED

11 silver on projects in the last 2 and a half

12 years, or projects over the last 10 years. I'd

13 have to probably get that information.

14 MS. FERSTER: And are you familiar at

15 all with the green construction code or its

16 applicability to District of Columbia financed

17 projects?

18 MR. LANE: Objection, scope.

19 DR. BYRNE: I'm going to allow it.

20 MR. KENNER: Not specifically because

21 I don't have those regs in front of me.

22 MS. FERSTER: Okay, generally are you

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1 aware that the green construction code does apply

2 to publicly financed District of Columbia

3 projects?

4 MR. LANE: Same objection.

5 MR. KENNER: Yes.

6 MS. FERSTER: It does.

7 MR. KENNER: As much as I understand

8 about it, yes.

9 MS. FERSTER: Okay. I have some

10 questions about the phasing of the project. Do

11 you view these issues within the scope of this

12 witness's testimony?

13 MR. LANE: The witness did not testify

14 as to phasing.

15 MS. FERSTER: I'd still like to ask

16 some questions about phasing. Do you object?

17 DR. BYRNE: I don't think he said

18 anything about phasing.

19 MS. FERSTER: I would like to still

20 request permission to ask questions on phasing.

21 DR. BYRNE: I sustained the objection.

22 MS. FERSTER: Thank you. Okay, how

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1 about permits, specifically the raze permit and

2 the subdivision permit. I have some specific

3 questions about the raze and subdivision permits

4 that were applied for and in fact one was

5 received by the Mayor's Office.

6 I would like to ask some questions

7 about your receipt of the demolition permit back

8 in December of 2016.

9 MR. LANE: That was not included in

10 the testimony. I would object to that.

11 DR. BYRNE: Sustained.

12 MS. FERSTER: Okay. You testified

13 about exemplary architecture, that you believe

14 the project is one of exemplary architecture.

15 Do you have any elaboration on the

16 basis for that belief in terms of the

17 architectural features or the standards by which

18 you made that judgment?

19 MR. LANE: Object to that

20 characterization. The testimony specifically

21 said that other witnesses would be testifying as

22 to architecture.

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1 MS. FERSTER: So you made no specific

2 determination by yourself that this is exemplary

3 architecture.

4 MR. LANE: Objection to

5 characterization.

6 DR. BYRNE: Sustained. The record of

7 his testimony is what it is.

8 MS. FERSTER: Okay. So I'm going to

9 ask the witness again do you have any personal

10 opinion on whether or not this architecture is

11 exemplary architecture.

12 MR. LANE: Same objection.

13 DR. BYRNE: I think he can answer

14 that.

15 MR. KENNER: Sorry, can you restate

16 the question again?

17 MS. FERSTER: Have you formed a

18 personal opinion about whether the architecture

19 in this project was exemplary architecture?

20 MR. KENNER: I think I've testified

21 that there are a number of elements of special

22 merit including elements of exemplary

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1 architecture and that we'll have some other

2 witnesses also outline that.

3 So I think that my testimony speaks

4 for itself.

5 MS. FERSTER: Okay, thank you. Are

6 you aware of allegations made to law enforcement

7 officers that ANC commissioners have received

8 things of value in return for their past support

9 of this development project?

10 MR. LANE: Objection, relevance.

11 DR. BYRNE: Sustained. Really Ms.

12 Ferster, please.

13 MS. FERSTER: I'm making a record,

14 Your Honor.

15 DR. BYRNE: Making a record of asking

16 questions that are plainly outside the scope of

17 his testimony.

18 MS. FERSTER: In our view it's

19 relevant.

20 Okay, that's it for now. If it's

21 possible then I may ask to call you back if some

22 of the questions that you were not able to answer

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1 are -- that other witnesses defer to you for

2 that.

3 MS. BROWN: I think that we cannot

4 recall our witness. If she has a witness that

5 she wants to bring up. I don't know that it's

6 going to be the Deputy Mayor.

7 DR. BYRNE: What we've said is that if

8 she has questions that other witnesses attest

9 that only the Deputy Mayor could answer that are

10 within the scope of his cross examination we

11 would develop a means by which to conveniently

12 get some answer.

13 And it may not be -- I'll have to

14 think about what that is at the time. But we'll

15 try to avoid having him personally come back.

16 MS. BROWN: And I do have two quick

17 redirect questions.

18 DR. BYRNE: Okay.

19 MS. BROWN: I can wait.

20 DR. BYRNE: Would you prefer to wait?

21 Let's do that. That sounds fine. All right, Mr.

22 Otten, your turn.

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1 Just a reminder that what we're

2 dealing with here is cross examination so the

3 questions have to address things that are within

4 the scope of the witness's direct testimony.

5 MR. OTTEN: I understand. And I want

6 to make sure we're clear on the record in this

7 case. The record is the continuation of the

8 prior cases that the record in total includes all

9 of the prior hearings and submitted written --

10 DR. BYRNE: That was stated at the

11 beginning of the hearing.

12 MR. OTTEN: And so therefore anything

13 that Mr. Kenner has submitted in the past in the

14 prior hearings is on the record.

15 DR. BYRNE: If it's in the record it

16 stays in the record.

17 MR. OTTEN: Okay. Mr. Kenner, you're

18 the director of DMPED?

19 MR. KENNER: I'm the Deputy Mayor for

20 Planning and Economic Development.

21 MR. OTTEN: And what's your address?

22 Where do you work at?

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1 MR. KENNER: The Wilson Building and

2 the address I believe is 1350 Pennsylvania

3 Avenue, NW.

4 MR. OTTEN: What's your role as the

5 Deputy Mayor?

6 MR. KENNER: To execute the Mayor's

7 vision around economic development for the city.

8 MR. OTTEN: And by economic

9 development can you elaborate on that?

10 MR. KENNER: A variety of different

11 features that include the general economic health

12 of the District of Columbia.

13 MR. OTTEN: What goes into economic

14 health? What does that mean?

15 MR. KENNER: It means --

16 MR. LANE: Objection on the scope and

17 relevance.

18 DR. BYRNE: I'll let this one go but

19 try to get to the issues of the case.

20 MR. KENNER: It can mean a variety of

21 things and so I think economic health has to do

22 with the vibrancy as well as the -- just general

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1 features of economic development.

2 MR. OTTEN: Does economic health

3 include people? The vibrancy of the people?

4 MR. LANE: Objection on relevance.

5 MR. OTTEN: This is directly relevant

6 because the economic health is being evaluated

7 here as part of the special merit of this case.

8 MR. LANE: Objection on scope.

9 MR. OTTEN: Scope is in the written

10 testimony right now. I'm looking at it right in

11 front of me. The economic health of this project

12 in terms of the tax generation and the influence

13 on the surrounding community.

14 DR. BYRNE: He's testified that that

15 is included.

16 MR. OTTEN: And that's part of the

17 economic health.

18 DR. BYRNE: I think that's what I

19 heard him say.

20 MR. OTTEN: So, in terms of the

21 economic health specific to this project can you

22 revisit that for me just now so I can understand

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1 what you understand is involved here in terms of

2 the economic impact or the benefits?

3 MR. KENNER: My testimony was I

4 thought fairly clear around many of the important

5 goals that would be potential components of

6 economic health that are included in this

7 project.

8 MR. OTTEN: Can you elaborate a few of

9 those for me?

10 MR. LANE: Objection.

11 DR. BYRNE: I think he's given his

12 testimony on that. I'm not sure what you're

13 trying to get at.

14 MR. OTTEN: Well, he's qualifying this

15 as a special benefit. I need to understand what

16 the lead director of -- the Deputy Mayor of

17 economic planning is saying about this project.

18 DR. BYRNE: Well, I need to understand

19 what he means by it, but whether I have to

20 guarantee that you'll understand it. I

21 understand what he means.

22 MR. OTTEN: Did you understand?

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1 DR. BYRNE: I have a scope and I'm

2 looking forward to hearing more testimony.

3 MR. OTTEN: Okay. So in your position

4 as the DMPED, as Deputy Mayor, are you -- how are

5 you involved in reviewing these applications such

6 as the one that went before HPRB and now before

7 the Mayor's Agent?

8 MR. LANE: Objection on scope.

9 MR. OTTEN: What is your role in that

10 review?

11 MR. LANE: Same objection.

12 DR. BYRNE: Would you say more about

13 your objection, please?

14 MR. LANE: It's unrelated to the

15 actual testimony given on direct.

16 MR. OTTEN: Absolutely related. He is

17 the central planning official in the District of

18 Columbia. I need to understand what he's

19 planning and how he's envisioning this special

20 project.

21 DR. BYRNE: I think it goes outside

22 the scope of what he testified to. He is who he

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1 is.

2 MR. OTTEN: So then how do you relate

3 to the Office of Planning?

4 MR. LANE: Objection on scope.

5 DR. BYRNE: Yes, sustained.

6 MR. OTTEN: Hasn't the Office of

7 Planning weighed in on this project?

8 MR. LANE: Objection on scope.

9 DR. BYRNE: It's in the record already

10 that the Office of Planning has weighed in.

11 MR. OTTEN: Okay, so I'm asking him

12 what his role is with the Office of Planning.

13 DR. BYRNE: I know, but that's not

14 what he testified to.

15 MR. OTTEN: He's Deputy Mayor. I want

16 to understand what he views as his role vis-a-vis

17 the Office of Planning.

18 DR. BYRNE: This is not a civics

19 seminar. This is a hearing on this case. And

20 going into his relation with the Office of

21 Planning is not what's at stake in this case.

22 MR. OTTEN: Absolutely it is.

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1 DR. BYRNE: I understand that you

2 believe that, but I'm saying it's not.

3 MR. OTTEN: Mr. Byrne, you don't

4 understand and the relationship between the

5 Office of Planning, the Historic Preservation

6 Office and DMPED.

7 DR. BYRNE: I understand it better

8 than you do.

9 MR. OTTEN: You do? Okay. Well then

10 you would allow him to answer that question.

11 DR. BYRNE: No, because it's outside

12 the scope. I want to get on to the merits of

13 this project and not have just a forum on your

14 concerns about the District of Columbia

15 government.

16 MR. OTTEN: Okay, so as DMPED, as the

17 Deputy Mayor, are you involved in planning of

18 projects here in the District of Columbia?

19 MR. LANE: Objection on scope.

20 DR. BYRNE: Sustained.

21 MR. OTTEN: How is it not relevant?

22 I don't understand.

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1 DR. BYRNE: It's not a question of

2 relevance. It's a question of you can ask him

3 questions that are within the scope of what he

4 testified to.

5 He testified about this project and

6 about the benefits of this project to the

7 District of Columbia.

8 MR. OTTEN: So in reviewing the

9 benefits of this project to the District of

10 Columbia what planning protocols or policies did

11 you review to come to your conclusions?

12 DR. BYRNE: I'll allow that.

13 MR. KENNER: Sorry, could you state

14 the question again?

15 MR. OTTEN: What planning protocols or

16 policies did you review to make your conclusions.

17 DR. BYRNE: That this was a project

18 that was of substantial benefit to the District

19 of Columbia.

20 MR. KENNER: So, again in my testimony

21 I state numerous things around residential,

22 affordable housing, community serving benefits

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1 that all go into the public benefits. And those

2 are just examples of some few that go into public

3 benefits for this project.

4 MR. OTTEN: Isn't it the case that

5 this public plan will be privatized as part of

6 this project?

7 MR. LANE: Objection.

8 DR. BYRNE: Sustained.

9 MR. OTTEN: Mr. Byrne, in prior

10 hearings it became clear that one of the historic

11 characteristics of this project is its public

12 nature.

13 DR. BYRNE: Right, but he didn't

14 testify on that.

15 MR. OTTEN: He just testified just now

16 that there are public benefits to this project.

17 DR. BYRNE: Right, but you can't ask

18 him about every detriment that you see to the

19 project because that's just not what he testified

20 to.

21 MR. OTTEN: I'm asking him directly to

22 his testimony there are public benefits.

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1 DR. BYRNE: You're asking him for --

2 so you know --

3 MR. OTTEN: Okay, let me ask it this

4 way. Is there a public benefit to the

5 privatization of this park?

6 MR. LANE: Objection on scope.

7 DR. BYRNE: I'll let him answer that.

8 MR. KENNER: Say the question one more

9 time.

10 MR. OTTEN: Is there a benefit to the

11 privatization of this public park?

12 MR. KENNER: I don't understand your

13 characterization of privatization and I don't

14 understand your characterization of park.

15 What I testified to is that we believe

16 that this project having gone through a number of

17 different community as well as advisory

18 neighborhood commission, National Capital

19 Planning Commission, Historic Preservation

20 Review, U.S. Commission on Fine Arts, legislative

21 process in the D.C. Council has a number of

22 different community serving benefits that are

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1 specific to this project which make it a project

2 of significance for us and a reason why we are

3 very happy to be here to be in support of it.

4 MR. OTTEN: You just testified that

5 you don't understand the term park. Can you

6 explain that?

7 MR. LANE: Objection to

8 characterization.

9 MR. OTTEN: He just testified to this.

10 DR. BYRNE: So, I would just ask the

11 witness to clarify what he meant when he said

12 that he didn't understand what the term park

13 meant.

14 MR. KENNER: Just that I see this as

15 the McMillan Sand Filtration Site. That's all.

16 MR. OTTEN: Are you saying therefore

17 then that the 25 acres of open land above the

18 sand filter water beds is not a park?

19 MR. KENNER: No, it's just you were

20 referring to the project and so it is the

21 McMillan Sand Filtration Site.

22 MR. OTTEN: Has there ever been a park

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1 as part of that sand filtration site?

2 MR. KENNER: I'm not sure.

3 (Simultaneous speaking)

4 DR. BYRNE: Sustained.

5 MR. OTTEN: Are you aware that in the

6 application for and the approval of the McMillan

7 Sand Filtration Site's acceptance into the

8 National Historic Register it refers to the 25

9 acres as a park?

10 MR. LANE: Objection.

11 DR. BYRNE: Sustained.

12 MR. OTTEN: I'm sorry, what?

13 DR. BYRNE: It's in the record, Mr.

14 Otten. It's in the record as to what was said in

15 the nomination.

16 MR. OTTEN: Okay, so I'm just

17 clarifying that he knows that.

18 DR. BYRNE: But I don't think it's an

19 okay question.

20 MR. OTTEN: Okay, going back to your

21 role in looking at planning policies for the

22 District of Columbia and your analysis and

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1 conclusions in this case what other policies and

2 plans here in the District of Columbia did you

3 review in making your conclusion that this is a

4 special merit project?

5 MR. LANE: Objection, vague.

6 DR. BYRNE: It's pretty vague.

7 MR. OTTEN: Okay, let me ask you this.

8 DR. BYRNE: He's testified already

9 what he viewed that he was -- he testified as to

10 his role in implementing the Mayor's vision for

11 development. He testified to the many government

12 agencies that have found merit in the project.

13 And you're asking him what else he

14 looked at, but I don't think that -- I think that

15 just goes too far.

16 MR. OTTEN: Thank you for clarifying.

17 So, the Mayor's vision for development. In

18 understanding that did you review the Mayor's

19 Climate Ready D.C. plan and resiliency in terms

20 of future projects here in the District of

21 Columbia when you reviewed this case?

22 MR. KENNER: There are a variety of

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1 different things that we look at obviously making

2 sure that it complies with all District of

3 Columbia laws and regulations, ensuring that

4 obviously we've got community support and

5 ensuring that we have gone through all the other

6 regulatory and other advisory processes.

7 And so I'm sure that as a part of some

8 of the review of environmental or other

9 parameters to evaluate the comprehensive benefits

10 of this program and this project I'm sure that

11 over the course of its development I'm sure that

12 we have looked at elements of -- I'm not sure

13 about the specifics of what you're specifically

14 referring to in the climate report, but I'm sure

15 that elements of it have been considered.

16 MR. OTTEN: And this is you're

17 referring to the Climate Ready D.C. Report?

18 MR. KENNER: I think you're referring

19 to it. I'm saying that there were a variety of

20 different elements. I'm not sure which element

21 you'd be referring to in it.

22 MR. OTTEN: I'm referring to the

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1 Climate Ready D.C. Report specifically.

2 DR. BYRNE: I think he's answered the

3 question.

4 MR. OTTEN: Okay. So therefore in

5 that report did you acknowledge in your

6 conclusions in any way the location of McMillan

7 on the flooding maps?

8 MR. LANE: I'm going to object on

9 scope.

10 DR. BYRNE: Sustained.

11 MR. OTTEN: Are you aware that

12 hospitals that are in flood areas are known to be

13 -- it's a problem for the city?

14 MR. LANE: Objection.

15 DR. BYRNE: Sustained.

16 MR. OTTEN: Excuse me. He quoted from

17 his testimony that the healthcare facility in

18 this project is one that makes this a special

19 merit project, did he not?

20 DR. BYRNE: He did.

21 MR. OTTEN: So I'm trying to

22 understand how he got to that conclusion.

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1 DR. BYRNE: I don't think you are. I

2 think you're just arguing with him about whether

3 he considered some document that he is the head

4 of a large office in. And whether he considered

5 it or not I don't think really is relevant.

6 MR. OTTEN: I believe he had a direct

7 hand in this plan.

8 DR. BYRNE: That could well be, but

9 the question you're asking him is whether he

10 reviewed it himself for purposes of this

11 proceeding and I don't think he testified that he

12 did.

13 I think it's just not getting us where

14 we want to go in this hearing.

15 MR. OTTEN: Well, as I understand it

16 one of the special benefits here is the location

17 of the hospital facility on this site.

18 DR. BYRNE: I think that is part of

19 the applicant's case. They have not really made

20 that case yet. All Mr. Kenner has done is sketch

21 out the broad parameters of the case that the

22 other witnesses are going to provide detail on.

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1 And I do think that you're better off

2 waiting until you have more technical testimony

3 and trying to tangle with those factual

4 assertions that are actually going to be made

5 than to try to push him into describing what he

6 knew when kind of a thing.

7 I just don't think that's appropriate.

8 MR. OTTEN: Okay. Let me ask this.

9 Mr. Kenner, how do you view McMillan Park in

10 terms of your portfolio of projects as far as its

11 scale and importance to the city. The Mayor's

12 vision for development.

13 MR. LANE: Objection, scope.

14 DR. BYRNE: I think he did testify

15 that it was very important.

16 MR. OTTEN: And in terms of the

17 portfolio you have how would you rank it.

18 MR. KENNER: Very important.

19 MR. OTTEN: Therefore this is public

20 land, right? That's in your portfolio. The 25

21 acres.

22 MR. KENNER: It is public land.

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1 Everybody knows it's public land.

2 MR. OTTEN: And you claim that there

3 are 20 percent set-asides for affordable housing.

4 That's what makes it a special benefit because

5 the law only requires 10 percent?

6 MR. KENNER: I think I testified that

7 it's important to mention that 20 percent of the

8 affordable units set-asides exceeds the required

9 by law at the time inclusionary zoning.

10 MR. OTTEN: And are you aware that

11 inclusionary zoning is measured on gross floor

12 area, not units?

13 DR. BYRNE: Measured for what purpose?

14 MR. OTTEN: In terms of percentages of

15 total gross floor area versus total units.

16 DR. BYRNE: For what purpose?

17 MR. OTTEN: For the purpose of what he

18 just said, inclusionary zoning.

19 DR. BYRNE: He testified about the

20 percentage of units.

21 MR. OTTEN: Percentage of units. But

22 he's quoting IZ as the measure for why it's

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1 special. Correct?

2 MR. KENNER: Say the question one more

3 time?

4 MR. LANE: Object on confusing.

5 DR. BYRNE: I think if you want to

6 argue that it's not special because the square

7 footage is the right measure and that that is

8 what should be looked at I think you should make

9 that argument and not try to drag it out of the

10 witness.

11 MR. OTTEN: Well, he's claiming that

12 this is a special merit project based on 20

13 percent of the units being --

14 DR. BYRNE: So he may be wrong. So

15 you have to make that argument.

16 MR. OTTEN: Did you do any analysis of

17 the gross floor area that's actually affordable?

18 MR. LANE: Objection, scope.

19 MR. OTTEN: It's directly related to

20 the special benefit that he's testified to, Mr.

21 Lane.

22 MR. LANE: This is the same approach

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1 of testifying as a cross examination rather than

2 saving it for the actual presentation.

3 MR. OTTEN: This is to understand his

4 testimony.

5 DR. BYRNE: He's testified about the

6 number and percentage of units. And if you think

7 that's inadequate you can put on a case to show

8 why it's inadequate.

9 MR. OTTEN: And so you also testified

10 that the affordability units including up to 80

11 percent AMI, correct?

12 MR. KENNER: I testified that the

13 category is 80 percent of AMI are at or below.

14 MR. OTTEN: What is your definition of

15 80 percent AMI? What does AMI mean to you?

16 DR. BYRNE: Sustained. AMI -- we

17 don't really need to go through all that, do we?

18 MR. OTTEN: Isn't it the case, Mr.

19 Kenner, that the city has taken a recent position

20 that 80 percent AMI is not actually affordable?

21 MR. LANE: Objection, scope.

22 MR. OTTEN: Directly related to this

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1 testimony, sir.

2 DR. BYRNE: Mr. Kenner.

3 MR. KENNER: Say the question one more

4 time.

5 MR. OTTEN: Isn't it the case that the

6 city has recently set policy that 80 percent AMI

7 is not affordable.

8 MR. LANE: Same objection for the

9 record.

10 MR. KENNER: I don't understand your

11 question in terms of the city. There is -- tell

12 me what you mean by that.

13 MR. OTTEN: The Mayor and the City

14 Council.

15 MR. KENNER: There's no policy that

16 I'm aware of that says that 80 percent of area

17 median income is no longer affordable if that's

18 your question.

19 MR. OTTEN: Hasn't it been reduced

20 from 80 percent to 60 percent as the outer

21 boundary of what is considered affordable in the

22 district?

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1 MR. LANE: Objection, vague.

2 MR. OTTEN: It's very clear.

3 MR. KENNER: No, it's not clear

4 because you're talking about affordability

5 definitions which are set.

6 MR. OTTEN: By what?

7 MR. KENNER: Set by law.

8 MR. OTTEN: In the inclusionary zoning

9 law?

10 MR. KENNER: That's only one

11 definition. HUD has other definitions as an

12 example of affordability levels. So which one

13 are you referring to?

14 MR. OTTEN: So HUD is federal.

15 Correct?

16 MR. KENNER: HUD is federal, correct.

17 MR. OTTEN: And inclusionary zoning

18 law is district level.

19 MR. KENNER: There are funds that come

20 from the federal government which are primarily

21 affordable housing federal money that influences

22 affordability levels.

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1 There is no such thing as just local

2 affordability. It's always included with both.

3 MR. OTTEN: So when a new development

4 goes up like this project and a developer puts in

5 IZ units are you saying that HUD subsidizes those

6 IZ units?

7 MR. LANE: Objection to

8 characterization.

9 MR. OTTEN: He testified to this.

10 MR. KENNER: It totally depends on how

11 they finance it.

12 MR. OTTEN: In this case are you aware

13 of how they're financing it?

14 MR. KENNER: I think that's probably

15 a question for --

16 DR. BYRNE: I think that's outside the

17 scope of his testimony. I think there are other

18 people who you can ask that to I expect as we go

19 forward.

20 MR. OTTEN: As DMPED have you, Mr.

21 Kenner, looked at or provided for the record any

22 analysis of healthcare facilities around the

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1 District of Columbia?

2 MR. LANE: Objection, scope.

3 MR. OTTEN: It's directly related to

4 his testimony about the special benefit of the

5 healthcare facility in this project.

6 DR. BYRNE: There's going to be more

7 people who have more specific knowledge about

8 these things as we go forward. I'd really like

9 to move on to that.

10 MR. OTTEN: This is the director of

11 DMPED.

12 DR. BYRNE: He's the Deputy Mayor.

13 MR. OTTEN: He just said that this is

14 one of the most important projects in the

15 District of Columbia.

16 DR. BYRNE: He did.

17 MR. OTTEN: I would imagine given

18 that, and it's probably one of the largest

19 projects in his portfolio he would understand

20 when he testifies to the special benefit of a

21 healthcare facility at the site that he's done

22 some analysis siting healthcare facilities in the

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1 District of Columbia.

2 DR. BYRNE: I'm sure he has and I'm

3 sure we're going to hear about who has done that

4 analysis that the Deputy Mayor may be relying

5 upon. He is the Deputy Mayor. He's not doing

6 all of the number crunching himself.

7 I'd like to wait until we have people

8 who actually know more about the details of the

9 proposal.

10 MR. OTTEN: In the record submitted by

11 the applicant we have the alternatives that were

12 considered as part of this project.

13 MR. LANE: Object on the scope of this

14 line of questioning.

15 DR. BYRNE: Sustained.

16 MR. OTTEN: One of the critical pieces

17 of this, Mr. Byrne, as I understand it is how

18 DMPED which is the co-applicant in this case

19 considered alternatives. They have put on the

20 record --

21 DR. BYRNE: But he didn't testify to

22 that.

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1 MR. OTTEN: But this is on the record.

2 DR. BYRNE: I understand, but you can

3 now only cross examine him about the testimony

4 that he's given just now.

5 MR. OTTEN: He has testified this is

6 the only feasible alternative.

7 DR. BYRNE: He didn't testify to that

8 here.

9 MR. OTTEN: He has on the record.

10 DR. BYRNE: But that's not relevant to

11 the questions.

12 MR. OTTEN: It's in the record in this

13 case.

14 DR. BYRNE: I've ruled. It's

15 sustained.

16 MR. OTTEN: So did you refer to -- I

17 noticed in the testimony the Tregaron Estate

18 case. Are you familiar with that case?

19 MR. LANE: Objection, that was not

20 testified to.

21 DR. BYRNE: He didn't testify to that.

22 MR. OTTEN: Are you familiar with the

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1 Tragana --

2 DR. BYRNE: Sustained.

3 MR. OTTEN: Is the Tragana Estate

4 public?

5 MR. LANE: Objection, scope.

6 DR. BYRNE: Sustained.

7 MR. OTTEN: This is ridiculous. I'm

8 asking the Deputy Mayor. He should know these

9 answers.

10 DR. BYRNE: It's not a question of

11 what he knows. It's a question about the legal

12 procedure that we're following.

13 MR. OTTEN: Exactly.

14 DR. BYRNE: Okay.

15 MR. OTTEN: This is really

16 unbelievable. The prejudice in this case is

17 unbelievable.

18 So, did you claim how many

19 construction jobs -- and I object to the smirking

20 by Mr. Lane that's consistently happening in this

21 case right now. Have some professional aspect,

22 Mr. Lane. The constant smirking is not

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1 appreciated and it's not professional.

2 MR. LANE: Sir, you are badgering the

3 gentleman.

4 (Simultaneous speaking)

5 DR. BYRNE: Okay, let's be quiet for

6 a minute, please.

7 MR. OTTEN: I don't appreciate this --

8 DR. BYRNE: I don't appreciate the

9 fact that you are not conducting the examination

10 in a way that is professional. I am trying to

11 give you --

12 MR. OTTEN: I'm not asking questions

13 that are professional here?

14 DR. BYRNE: Correct. You're asking

15 many questions that are outside the scope of his

16 testimony.

17 MR. OTTEN: He's the Deputy Mayor for

18 the city.

19 DR. BYRNE: That is something that

20 somebody who is not a lawyer wouldn't necessarily

21 understand.

22 MR. OTTEN: So, getting back to the

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1 public benefits, can you remind us of your

2 testimony because I don't recall your testimony

3 about the public benefits in this case so I can

4 understand what he testified to.

5 DR. BYRNE: Sustained. He's already

6 testified to it three times.

7 (Simultaneous speaking)

8 MR. OTTEN: Oh, we want to get on. We

9 just want to rubber stamp this thing. Okay.

10 What are the positive fiscal impacts

11 that you've testified to in this case?

12 MR. LANE: I'm going to object on

13 vague. If there's a specific question about the

14 testimony that's fine. If it's general questions

15 asking for restating the testimony.

16 DR. BYRNE: You're just asking him to

17 restate the testimony that he's already given.

18 MR. OTTEN: Okay.

19 DR. BYRNE: I don't want to spend time

20 on that. I want to get on to the issues that are

21 going to decide this case.

22 MR. OTTEN: Which is the ones he's

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1 testified to.

2 DR. BYRNE: Many of them are, but only

3 in a very general way. Let them put their case

4 on and then you can engage with people who have

5 detailed knowledge about the project.

6 MR. OTTEN: So the case has started,

7 correct?

8 DR. BYRNE: Don't ask me questions

9 like that.

10 MR. OTTEN: You just said let them put

11 their case on.

12 DR. BYRNE: Yes.

13 MR. OTTEN: Mr. Kenner is their first

14 witness.

15 DR. BYRNE: I know but you're taking

16 up a great deal of time with a lot of stuff

17 that's not going to be relevant -- that is not

18 appropriate for the hearing and the decision in

19 the case.

20 And I would like you to be more

21 circumspect and to wait. If you want to examine

22 him about the scope of his testimony, but I am

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1 not going to give you any more leeway to go

2 outside of what he testified to because I really

3 want to get on with this case.

4 I don't know what your agenda is, but

5 my agenda is to decide the case according to the

6 remand from the court of appeals.

7 MR. OTTEN: Mr. Kenner, are you

8 familiar the filter pits that are underneath the

9 park, 25 acres.

10 MR. LANE: Objection.

11 DR. BYRNE: Sustained. He didn't

12 testify about filter beds.

13 MR. OTTEN: Mr. Kenner, isn't this

14 case relating to the demolition of the historic

15 assets at this site.

16 MR. LANE: Objection, scope.

17 DR. BYRNE: I'll let him go with that.

18 Obviously it is about the demolition. That's

19 what the case is about. It's about the

20 demolition of the cells.

21 MR. OTTEN: I want to understand what

22 he understands.

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1 DR. BYRNE: It doesn't matter what he

2 understands.

3 MR. OTTEN: He's the Deputy Mayor.

4 DR. BYRNE: But it doesn't matter.

5 For that purpose it doesn't matter. It matters

6 what the applicant's case is as presented in

7 evidence to me.

8 MR. OTTEN: He's part of the

9 applicant's case.

10 DR. BYRNE: He as a human being is not

11 part of the case. The submissions that they make

12 are the case.

13 MR. OTTEN: I'm asking about the

14 submissions.

15 DR. BYRNE: You're not asking about

16 things that he's testified to.

17 MR. OTTEN: He's supporting this case.

18 DR. BYRNE: It doesn't matter.

19 MR. OTTEN: This is ridiculous.

20 DR. BYRNE: Sir, you are really not

21 being very helpful to the elucidation of the

22 case. You're not following the procedures.

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1 You're slowing everything down. We can't get to

2 the witnesses who actually can answer the

3 questions that you or your other opponents may

4 have. So I'm going to ask you to please cease

5 and desist and let's move on with the case.

6 MR. OTTEN: So, Mr. Kenner, you

7 testified to the views with regards to this plan,

8 the view sheds that are protected in this plan,

9 correct?

10 DR. BYRNE: I don't believe he did.

11 MR. OTTEN: Yes, he did. I wrote it

12 down.

13 MR. KENNER: Where in my testimony it

14 says that.

15 MR. OTTEN: You said it about 30

16 minutes ago.

17 MR. KENNER: Please refer to where in

18 my testimony I said that.

19 MR. OTTEN: I don't have your

20 testimony in front of me.

21 DR. BYRNE: I'm going to sustain the

22 objection. I didn't hear him say anything about

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1 view sheds.

2 MR. OTTEN: Is that important to you

3 as the Deputy Mayor?

4 MR. LANE: Objection.

5 MR. OTTEN: Did you testify to the

6 exemplary architecture in this case?

7 MR. LANE: Objection.

8 DR. BYRNE: He's already answered that

9 question.

10 MR. OTTEN: Did you testify to the

11 traffic accessibility around this site?

12 MR. LANE: Objection, scope.

13 MR. OTTEN: It has to do with --

14 DR. BYRNE: He didn't testify --

15 MR. OTTEN: Yes, he did. He testified

16 to the integration of this site into the

17 surrounding network of roads.

18 MR. KENNER: I did not -- or please

19 tell me where in my testimony I said that.

20 MR. OTTEN: You tell me. You didn't

21 say that?

22 MR. KENNER: I testified before, sir,

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1 so please tell me what question that's within the

2 scope of my testimony you're asking.

3 DR. BYRNE: Okay, Mr. Otten, you're

4 finished for now. You can come back.

5 MR. OTTEN: I object to this whole

6 case, the posture, the issues. He's stated this

7 in writing already.

8 DR. BYRNE: I know.

9 MR. OTTEN: This gentleman is the

10 Deputy Mayor. He should know all these answers.

11 The fact that he doesn't. I have just one more

12 question if I could.

13 I believe he testified to the

14 preservation covenants on this site, did he not?

15 DR. BYRNE: No.

16 MR. OTTEN: So you're not aware of

17 preservation covenants on this site?

18 DR. BYRNE: Sustained.

19 MR. OTTEN: So these are questions for

20 later witnesses is what you're saying?

21 DR. BYRNE: If they testify about

22 them. Or you could put on your own witnesses,

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1 you know.

2 MR. OTTEN: Put all this record

3 already. So that's what I need to clarify. I

4 heard that this is limited to the four corners of

5 what they just said right now when that is not

6 the case.

7 You know the case law as much as I do.

8 Whatever's on the record can be cross examined.

9 DR. BYRNE: Not true.

10 MR. OTTEN: Yes, it is.

11 MS. MERRITT: I don't have any

12 questions for Mr. Kenner.

13 MS. BROWN: Mr. Deputy Mayor I just

14 have two quick redirect questions.

15 You mentioned the public-private

16 partnerships that you do through the Deputy

17 Mayor's office. All of those have high standards

18 for projects.

19 MR. KENNER: Correct.

20 MS. FERSTER: And you would not

21 typically find those high standards in a matter

22 of right project, is that correct?

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1 MS. FERSTER: Leading the witness.

2 MS. BROWN: Latitude --

3 MR. KENNER: That is correct.

4 MS. BROWN: Okay, thank you.

5 DR. BYRNE: Done with Mr. Kenner?

6 Okay, Mr. Kenner. Thank you very much.

7 MS. BROWN: Thank you. Our next

8 witness will be Mr. Chris Ruiz of Silman

9 Architects.

10 In our slideshow the order of

11 presentation for your convenience are the order

12 and issues they will be addressing. And we would

13 like Mr. Ruiz to be qualified as an expert

14 witness. I have his resume here for your review.

15 DR. BYRNE: Okay.

16 MS. BROWN: As you may recall Mr. Kirk

17 Mettam from Silman was the expert that testified

18 before in the previous proceedings. He could not

19 be here with us today, so his associate Mr. Ruiz

20 is here in his place. And he has been working on

21 this project for quite some time.

22 DR. BYRNE: Okay. Any objection?

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1 MS. FERSTER: Mr. Ruiz, are you

2 licensed as a professional engineer in the

3 District of Columbia?

4 MR. RUIZ: I do not hold a

5 professional engineering license in the District

6 of Columbia.

7 MS. FERSTER: Then I object.

8 DR. BYRNE: On what grounds?

9 MS. FERSTER: That he's not qualified

10 to testify on structural issues relating to a

11 project that has to qualify in the District of

12 Columbia.

13 MR. RUIZ: I have a professional

14 engineering license in the State of Florida,

15 Delaware, and a structural engineering license in

16 the State of Illinois.

17 If I did apply for licensure in the

18 District of Columbia.

19 DR. BYRNE: I'm going to overrule the

20 objection.

21 MS. BROWN: Thank you. Mr. Ruiz,

22 could you proceed with your testimony?

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1 MR. RUIZ: Absolutely. Good morning,

2 Mr. Byrne.

3 DR. BYRNE: Good morning, Mr. Ruiz.

4 MR. RUIZ: Again, my name is

5 Christopher Ruiz and I am a structural engineer

6 associate at Silman, a structural engineering

7 firm in the District of Columbia.

8 As Ms. Brown mentioned, Kirk who

9 previously testified apologizes and wishes he

10 could be here but unfortunately he had a

11 scheduling conflict.

12 My presentation today is to address

13 remand issues number three and four.

14 Additionally, I'm here today to provide an update

15 since our last testimony.

16 Since 2014 additional investigations

17 and analysis were performed and conclusions

18 presented in our previous testimonies and reports

19 have not changed.

20 While you've heard this before, I

21 would like to give a brief overview of the

22 underground structures on this industrial site as

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1 a refresher and for the benefit of those present

2 that were not present at previous proceedings.

3 On the lefthand side of the image on

4 the screen we see the entire site. Underlaying

5 the site are three large continuous concrete

6 masses outlined in bold white lines.

7 Within these masses there is an array,

8 a 4 deep by 5 wide array of filter beds often

9 referred to as cells.

10 These unreinforced concrete structures

11 can individually retain a volume of water.

12 If you zoom into one of these cells

13 you see that there's only one way into the cell

14 which is down a ramp. Each cell is confined by

15 four walls. The walls between the cells serve as

16 party walls and act as support for both cells.

17 The walls around the perimeter of the

18 site form the berm and the plinth.

19 Within these cells there are over 200

20 columns each supporting a vault. In all there

21 are 4,000 of these vaults over 20 acres of the

22 underground cells.

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1 I would like to give a quick brief

2 review of the structures and how they work. The

3 cells were constructed with unreinforced concrete

4 which means there's no reinforcing steel in the

5 concrete.

6 Additionally there is no

7 waterproofing.

8 I want to restate for the record that

9 unreinforced concrete is not permitted by code

10 today. Simply put, we don't do it. The only

11 place that we use unreinforced concrete is

12 between you and the ground which are sidewalk

13 grade or foundations.

14 Unreinforced concrete fails without

15 warning and catastrophically. In reference to

16 these cells just because a cell has not collapsed

17 doesn't -- or a collapse has not occurred does

18 not mean it will not.

19 It is important to note that the cells

20 were never intended for occupancy and the roofs

21 of the cells were never intended to support

22 additional loads or unbalanced load.

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1 As previously presented the concrete

2 roof structures are vaults. Vaulted structures

3 work in compression and compression only.

4 They're very ancient forms of structure.

5 These vaults require lateral

6 restraints to remain stable and to resist the

7 thrust forces.

8 Also note that these structures are

9 over 100 years old. As I will show you these

10 structures have not fared well over their

11 lifetime and have moved and cracked due to a lack

12 of reinforcement.

13 For the benefit of those here I wanted

14 to give a brief review of the site conditions

15 prior to construction on the site.

16 This site required a significant

17 regrading due to the existing topography. The

18 white lines represent the area along the old

19 Tiber Creek that ran through the site.

20 This area had to be filled with soil

21 in order to level the site. We had seen

22 significant settlement of the fill materials

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1 since they were first placed.

2 The coloring of the cells represents

3 degrees of damage to these unreinforced concrete

4 cells based on surveys on current conditions, red

5 being the worst condition ranging to green having

6 minor damage.

7 As noted previously the conditions can

8 change without warning, meaning the green cells

9 could become yellow, yellow to red, red to

10 collapse.

11 You will notice a direct correlation

12 between the location of the fill materials and

13 the observed damage.

14 There is also a correlation between

15 the lateral restraint provided at the perimeter

16 of the cells and the observed damage.

17 These structures are sensitive to both

18 settlement and lack of lateral restraint.

19 It's important to note that any

20 scenario where we subdivide these structures we

21 are going to be creating a similar condition to

22 the perimeter cells.

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1 We're going to be creating an edge

2 zone which means we will compromise the adjoining

3 cells.

4 Those three green cells are

5 uncompromised today, but it's such a sensitive

6 structure that anything that we do is going to

7 compromise those to some degree later.

8 Regardless of condition any of these

9 cells would require significant stabilization

10 which I'll describe in a later slide.

11 The safety issues are obvious when you

12 get on site. There are gaping holes along North

13 Capitol Street on the high side of the berm where

14 the structure has collapsed under its own weight.

15 I have included several photos showing

16 the collapses of cells 24 and 25.

17 I can offer a brief description of why

18 this happened. Initially, cracking of the

19 concrete occurred right at the apex of the vault.

20 Once this crack forms more hinges form

21 throughout the structure. Think of a hinge on a

22 door. Ultimately when three hinges form and

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1 movements reach a critical condition an

2 instability in the structure forms and the vault

3 plunges through failing catastrophically.

4 The animation on the slide provides an

5 illustration of a collapse.

6 These failures involve a sudden

7 collapse of tons of soil and concrete materials,

8 a very dangerous situation.

9 This slide illustrates three generic

10 reuse schemes that were investigated by Silman, a

11 topside use, topside interior use, and an

12 overfill scenario.

13 A topside use scenario would require

14 complete removal of the soil above the cell and

15 replacing it with a new reinforced concrete slab

16 which would be designed to stabilize the

17 structure and to support light maintenance

18 vehicles and equipment on the new soil above.

19 The new slab would also accommodate

20 waterproofing and drainage.

21 Based on our analysis the added weight

22 also requires us to reinforce the existing

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1 foundations. In theory the interior would appear

2 as it does today.

3 However, it would not be accessible

4 for occupancy and temporary access would have to

5 be maintained for periodic inspection.

6 This is the way we anticipate cell 14

7 would be reinforced. D.C. Water currently

8 controls filter 14 and final determination of

9 cell 14 use cannot be made until after D.C. Water

10 vacates cell 14 and stabilization is in place.

11 The second scenario we investigated

12 was a topside interior use which would introduce

13 risk to the occupants. It would require that the

14 underside of the structure remains visible so it

15 can regularly be inspected, monitored and

16 maintained against hazards like falling concrete.

17 This solution is not a conventional

18 50-year solution but it is something that could

19 be done in theory.

20 Moreover, there are additional non-

21 structural challenges with this scenario which

22 are significant and will be discussed in detail

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1 in the next slide.

2 An overfill scenario would require

3 inserting new columns in the middle of a 14 foot

4 column bay in order to limit the demolition of

5 the existing foundations and isolate new

6 structures from the historic construction.

7 Our analysis indicates that this could

8 accommodate up to two to three story light frame

9 construction. However, putting regulated space

10 columns in the middle of a 14 foot bay destroys

11 the historic value of the cells.

12 This slide lists the numerous non-

13 structural challenges for reuse. The cells do

14 not have adequate ceiling height needed for the

15 insertion of services like water, sewer, and

16 other MEP services and be code compliant.

17 Removing the sand would not solve the

18 problem because of the need to reinforce the

19 existing foundations.

20 As mentioned previously the ceilings

21 need to remain visible for inspection, further

22 challenging the placement of services and

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1 utilities.

2 Any use of the interior of the cells

3 would require ADA, fire, light, safety upgrades.

4 These upgrades will have a significant impact on

5 the structural stability and integrity of the

6 historic resource.

7 There are also security challenges

8 with these structures.

9 I want to note that there are over

10 4,000 vaults over 20 acres. I make this point to

11 reiterate the amount of repetition of these

12 structures on site.

13 In summary, the existing filters are

14 purpose built industrial structures with

15 significant limitations to reuse inherent in both

16 the design and construction.

17 The existing vaults are unique in

18 their construction, but of very limited use

19 except as a relic of industrial archaeology.

20 Time has demonstrated these

21 limitations and has caused the structure to be

22 compromised, severely in some cases.

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1 We could save practically any of these

2 cells with different degrees of difficulty and

3 cost. However, occupancy of the vaults is not

4 feasible except at a very small scale and at a

5 high cost.

6 Silman has assessed the conditions of

7 the cells and developed options for reuse.

8 Quickly going through the reuse scheme Silman has

9 determined that the topside use is feasible with

10 significant intervention.

11 Interior use is not practical due to

12 the numerous limitations and challenges presented

13 as well as the significant structural

14 intervention required.

15 Overbuild requires significant

16 intervention with no historic value. This scheme

17 eliminates the historic value of the cell by

18 greatly altering the historic space and

19 structure.

20 The concrete frames of the cells

21 consist of repeating structural layout for an

22 entire city block, 4,000 in all, all of which

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1 have to be stabilized at a minimum just to allow

2 access to the topside.

3 Any one cell offers a complete

4 interpretive experience of the below grade

5 portion of the entire site.

6 In conclusion, the proposed master

7 plan that has developed emphasizes the unifying

8 characteristics of the site, the above grade

9 features, the site organizational features, the

10 landscape characteristic known as the plinth, as

11 well as offering a complete interpretive

12 experience of the below grade structures for the

13 preservation of cell 14.

14 In addition, the integration and

15 adaptive reuse of cell 28 into the landscape

16 design can increase public awareness of the

17 uniqueness of this site.

18 That concludes my testimony. Thank

19 you for your time.

20 MS. BROWN: I have two quick

21 questions. Mr. Ruiz, since your last report have

22 there been any innovations in structural

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1 engineering that would allow you to save more

2 cells without the level of intervention as you

3 described in your testimony?

4 MR. RUIZ: No, not that I'm aware of.

5 MS. BROWN: And is there any new

6 literature or studies on the salvaging and

7 reinforcing of unreinforced concrete?

8 MR. RUIZ: No, not that I'm aware of.

9 MS. BROWN: Thank you.

10 DR. BYRNE: Okay. So we're going to

11 go through all of your witnesses. Mr. Ruiz, let

12 me ask you a question myself.

13 I am aware of Capitol Crossing

14 Project, it's right next to where I work at

15 Georgetown Law School. And they are putting a

16 slab and buildings above an interstate highway

17 which is really quite laudable.

18 So, just looking at this I was

19 wondering whether it's feasible to create new

20 supports for the surface that would be new

21 columns to support a slab surface that would

22 leave more cells intact.

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1 In other words whether you can sort of

2 --

3 MR. RUIZ: Bridge it over.

4 DR. BYRNE: Bridge it over, yes.

5 Right. So I don't know, you may have touched on

6 them here, but I didn't specifically see it.

7 I see it on the overbuild one there

8 seems to be a new column added.

9 MR. RUIZ: Right, so the overbuild

10 scenario would include putting cells -- sorry,

11 putting columns through the manhole locations and

12 through the filters going completely over the

13 cells, not feasible, and maintain the plinth.

14 In theory you could build some things

15 completely over but the depth required would not

16 maintain the other features presented.

17 DR. BYRNE: It wouldn't maintain the

18 plinth.

19 MR. RUIZ: Correct, because you only

20 have 2 feet between the top of the filter and the

21 plinth elevation of 170.

22 The project you're referring to as an

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1 example, don't quote me on the exact depth, but

2 I'm actually working nearby so I'm familiar with

3 the project, the plate girders that are going

4 above and bridging over the highway are in excess

5 of 5 plus feet. So we would be destroying the

6 plinth if we were to try to overbuild.

7 DR. BYRNE: I see.

8 MR. RUIZ: Not to mention this

9 structure as I said is unreinforced so putting --

10 standing over and putting that kind of loading

11 adjacent to would need to be carefully studied

12 and could have harm. Any settlement could cause

13 --

14 DR. BYRNE: Could cause the

15 significant risk of the cell columns themselves

16 collapsing because of the change in the tension

17 of the surface.

18 MR. RUIZ: A change in loading due to

19 settlement.

20 DR. BYRNE: Thank you.

21 MS. BROWN: If I can ask one quick

22 follow-up question.

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1 If you were able to even achieve that

2 girding over it you wouldn't be able to get any

3 below grade parking would you? In the cells.

4 MR. RUIZ: Within the cells?

5 MS. BROWN: Right.

6 MR. RUIZ: Right. The below grade

7 parking within the cell would not be feasible

8 from just the fact that you have 14 by 14 foot

9 columns.

10 DR. BYRNE: Your testimony would be

11 that it still would be extremely dangerous to

12 allow people down there because the unreinforced

13 concrete columns could collapse.

14 MR. RUIZ: Well, as unreinforced

15 concrete columns the --

16 DR. BYRNE: If the building wasn't

17 coming down upon them it still could collapse

18 internally.

19 MR. RUIZ: Correct. And your reuse

20 scenario would require careful inspection. And

21 also introducing a vehicle into an unreinforced

22 concrete structure would be additional risk

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1 because of impact.

2 DR. BYRNE: Thank you.

3 MS. BROWN: Our next witness is Emily

4 Eig, who's already been qualified as an expert in

5 historic preservation and architectural history.

6 DR. BYRNE: Welcome back, Ms. Eig.

7 MS. EIG: Good morning, thank you,

8 Judge Byrne.

9 I would like to first set a foundation

10 for our discussion today and then I'll come back

11 later in the witness rotation.

12 But I would like to start with just to

13 refresh us about the McMillan reservoir, the sand

14 filtration plant and the public recreation park.

15 This is a historic photograph

16 obviously at the time that the site was completed

17 and landscape which followed had been completed.

18 The site is a D.C. landmark. It is

19 also recently placed on the National Register as

20 a historic district.

21 However, we are operating here under

22 D.C. law so it's the qualities that are the

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1 special merit go towards landmark.

2 Just to remind us all that the

3 landmark is actually 92 acres. And I think you

4 can see the black dotted line around the green,

5 the deeper colored space shows you the boundaries

6 of the landmark.

7 It includes to the south there's a

8 part that's gray that that's where the public

9 park, recreational park existed at one time.

10 And the part that is in orange is the

11 site that is approximately -- it's a little more

12 than 25 percent of the entire landmark.

13 And I should note that the sand

14 filtration plant itself, it extends over to the

15 west side of First Street. And it being

16 designated the way it was it was really a product

17 of the Olmstead landscape design where he broke

18 it into different sections.

19 This is a drawing that we located

20 actually recently and I think that we should

21 point out that the landmark application was

22 prepared before all of the Olmstead records were

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1 actually available.

2 You might remember that we were very

3 fortunate just as of timing to be able to have

4 access. They finally finished indexing them in

5 Brookline where the Olmstead archives is.

6 And we learn more of history every day

7 as you might imagine.

8 DR. BYRNE: This is the Olmstead site

9 in the summer -- spring. It's really quite

10 spectacular.

11 MS. EIG: It is quite spectacular,

12 yes.

13 So this is an interesting image that

14 shows you the topography that existed at the time

15 that they defined the boundary of the entire

16 reservoir site. And the reservoir was there, but

17 the actual creation of this as a unified setting

18 with the sand filtration plant is represented in

19 this drawing.

20 At the time that the plant location

21 was identified the site that is to -- that the

22 filtration plant and the area to the west of

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1 First Street exists on was actually subdivided

2 and no construction had taken place but it was

3 subdivided and record lots and streets had been

4 recorded.

5 The drawing on the upper right-hand

6 side gives you an idea of what that looked like.

7 And I think that this image that shows the

8 plinth, it's essentially the structure that

9 allowed the site to be level because for the

10 water filtration to work the site needed to be at

11 a level grade, not at the topography that was

12 quite many different grades that existed there.

13 And obviously most dramatically going

14 south where it goes down to North Capitol Street

15 towards the south.

16 It was an industrial site. It was not

17 a public park. It had a walk around it that the

18 public was invited to walk on and to observe the

19 views across what Olmstead referred to as the

20 plain.

21 He planted trees around the entire

22 walk as an effort to keep people on the walk

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1 because they were not invited to the plain where

2 there were not just the cells were there, but

3 there were manhole covers throughout the entire

4 20 acres on a regular basis.

5 And the manholes, one-third at any

6 time was open when they were operating the

7 filtration -- the filtration plant was in

8 operation all the time and one-third of those

9 manhole covers were open at any one time.

10 Originally there was a lot of manual

11 labor and people have recorded seeing horse

12 buggies going across the surface courts. Those

13 were actually the horses that carried the sand

14 across the site.

15 But later it became mechanized with

16 the introduction of tractors and the like that

17 we're more familiar with today.

18 I thought it would be good to remind

19 us where the recreational park was and this

20 image, these photographs, every photograph is

21 actually on the west side of First Street and it

22 shows the park and how beautiful it was with the

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1 McMillan Fountain that was put in.

2 And the circle shows you the location

3 of that fountain.

4 And we're here to talk about the site

5 --

6 DR. BYRNE: I'd like to just ask a

7 question about the fountain. I was going back

8 over your report and the pieces of the fountain

9 are still lying around. Maybe some of them have

10 been identified but not all.

11 MS. EIG: Well, we actually made --

12 after the Mayor's Agent's decision there was some

13 work that was done and we were able to identify

14 and inventory all of the stone pieces are all at

15 Fort Washington. And we were able to actually as

16 I said using the historic drawings we were able

17 to determine that we have every piece of stone

18 that was originally around the fountain. And

19 pieces of the fountain are also on the Corps of

20 Engineers site, but it's been dissembled

21 obviously.

22 But that was -- we knew that they were

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1 probably out there, but actually it was

2 remarkable to say yes, we found them all.

3 DR. BYRNE: Any consideration about

4 the possibilities of putting it back together?

5 MS. EIG: That's been discussed. It's

6 a very expensive proposition to do that, and also

7 we cannot do that on the Corps of Engineers site.

8 It's been discussed, the possibility

9 of doing it on this site in a location that would

10 be closer to where -- maybe in that bottom

11 southwestern corner, that might be a good

12 location.

13 It would be very exciting if that were

14 possible.

15 DR. BYRNE: Yes, it would be a real

16 testamant.

17 MS. EIG: Yes. So to the historic

18 resources they're also there -- actually, the

19 resources are part of the landmark. They are

20 components of the landmark. If we had a single

21 building we would not be calling them resources,

22 we'd call them components.

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1 In this case as a landmark it has many

2 parts.

3 Starting in 2007 and then finally

4 completing in 2014 we did an inventory of the

5 historic resources that was based on work that

6 had been done by the District of Columbia like 20

7 years previously.

8 We updated that work and we

9 photographed and made sure what was there still -

10 - and identified in that process site resources

11 such as the boundaries, the topography, views,

12 landscape resources which is the primera planting

13 on the grassy plain and built resources. So

14 these three categories were critical to us to

15 understand the site.

16 In order to further understand these

17 particular components we did a study of the

18 relative level of significance. This was done

19 before we came to you previously.

20 And it is a preservation tool that has

21 been used when you have large sites like this to

22 understand what you're dealing with because it is

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1 confusing.

2 And to do that we actually used the

3 criteria that had been developed in the landmark

4 application that was prepared. And then asked

5 ourselves questions about that to understand each

6 of the different parts.

7 And we assessed each of these

8 resources.

9 Also part of this is an integrity

10 evaluation and the seven design materials,

11 workmanship, building association, setting,

12 location are part of the best practices in terms

13 of identifying the integrity that is based on the

14 National Register's approach.

15 And as you can see we used historic

16 photographs as well as current photographs. And

17 the photographs here are from 2015 of just

18 showing regulator house 5 and service court

19 number 2. Just giving you an idea of what things

20 look like.

21 There are many historical photographs.

22 I think you've seen the historic preservation

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1 report. And drawings now that we did not have

2 before. That we had, but did not have when the

3 landmark was done.

4 We did a study of this to determine a

5 proposed preservation approach. The report was

6 done before there was any proposal for a specific

7 development, but rather we knew there would be

8 development on the site. And this was to be a

9 tool to help there to be a discussion of what was

10 most important about the site.

11 It was the recommendation. It

12 actually allowed for the flexibility for the

13 development to be moved around as appropriate to

14 make this work.

15 The recommendations included general

16 site recommendations, resource specific treatment

17 recommendations, and resource specific

18 mitigations, but they were generalized.

19 The scope as required by the deed was

20 to follow the Secretary of Interior's standards

21 and guidelines for the resources that were going

22 to be rehabilitated.

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1 There was restoration in fact of the

2 high level resources and in some cases they were

3 rehabilitated. Stabilization, preservation. A

4 plan for maintenance and repair was recommended

5 and there was retaining reconstruction and

6 rebuilding I should say was also used as part of

7 the recommendations. And this is the chart that

8 we used.

9 Because we provided a preferred

10 treatment approach and an alternative treatment

11 approach so that if you in fact did not preserve

12 a regulator house you could rehabilitate but you

13 also needed to do mitigation if none would be

14 preserved.

15 The recommendations just very quickly

16 is the site boundaries, the service courts, the

17 one regulator house and one sand bin were

18 recommended specifically for restoration.

19 We recommended rehabilitation of most

20 of the other extant resources.

21 We recommended that the missing corner

22 stairs be reconstructed and the Olmstead Walk be

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1 reconstructed. As you can see it's not what it

2 was. Reconstruction implies that it is actually

3 missing. But there was rebuilding in certain

4 cases.

5 We also suggested mitigation and

6 mitigation included incorporating components that

7 could not be reused per se as their original

8 purpose, but they could be incorporated into a

9 new development.

10 It also was more -- also suggested

11 things such as an educational program to explain

12 things, museums, public art and the like as

13 possible mitigation measures. So it was giving a

14 general idea of what could be appropriate.

15 We also included a recommendation that

16 there be an understanding and incorporation of

17 the visual expression of the site. I think this

18 is really important because when one is dealing

19 with a landmark the retention and enhancement of

20 that landmark is key. And in order to do that

21 you must understand its identity and it was

22 necessary that not just keeping the physical

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1 resources, but the identity, the character, the

2 sense of place that the McMillan sand filtration

3 plant provided.

4 Following the approval of the project

5 we were authorized to proceed with a historic

6 preservation plan. This plan is not something

7 that you saw in 2014.

8 The plan repeated and sort of

9 incorporated things from the original report so

10 that it would be in one place.

11 And it actually was based on the plan

12 as it was approved. So this was no longer a

13 recommendation of a general action, this was a

14 recommendation for specific action.

15 And in each case we identified the

16 resources and we did an update inventory,

17 photographs, we included images, historic

18 drawings if they were possible. So it was a one

19 stop kind of shop for information.

20 The basic treatment that we were

21 proposing, whether it was restoration or

22 rehabilitation or if demolition had been

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1 proposed, and then recommendations of how to deal

2 with that because it was obviously complicated.

3 We worked on this report, the historic

4 preservation plan with Silman as structural

5 engineer and with Conservation Solutions as the

6 conservators. And it was very much a

7 multidisciplinary effort to come up with the best

8 recommendations.

9 DR. BYRNE: Can you explain the role

10 of the conservators?

11 MS. EIG: They actually looked at the

12 material and did testing, field testing, like

13 paint analysis. They identified wood, for

14 instance, and did a further more technical

15 assessment of condition of such components as --

16 same with Silman.

17 And there is a part of the court

18 decision that I'd like to address right now which

19 had to do with the issue of the fragility of the

20 site and the ability to perhaps not preserve what

21 we hoped to preserve.

22 And I'd like to clarify that because

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1 I think I was not perhaps clear.

2 But in May of 2014 D.C. Water removed

3 two cells, the two most southwestern cells.

4 These images show how they were trying to

5 stabilize what they were keeping in place.

6 And as you can see there are major

7 cracks. There's a major effort to keep the

8 retaining walls that no longer have the earth

9 against them to keep them in place.

10 Major efforts to actually keep things

11 in place. You can see the rods that are in the

12 next door, the cell 28 that was necessary to

13 stabilize that while they were doing

14 construction.

15 They were obligated to return

16 everything to the state that it was when it was

17 finished. But it did make me realize that what I

18 had tried to say was that any of these things

19 could have failed at some time.

20 And it wasn't that we weren't trying

21 to preserve it.

22 So we put into the historic

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1 preservation plan procedure in the event of

2 unanticipated damage and that is what I was

3 talking about. If something happened that was

4 not planned.

5 And the emergency procedures are

6 protocol is in the plan. The plan has been

7 approved, adopted by the Historic Preservation

8 Review Board.

9 And it provides a specific procedure

10 of what happens, who calls, when does it have to

11 happen, how is it documented, how is the decision

12 made as to the action.

13 And I think it's important to state

14 that it does involve the D.C. SHPO, the

15 structural engineer, the historic preservation

16 specialist, the owner, the contractor, and the

17 idea is that -- as well as DCRA of any code

18 issues that there would be a concurrence as to

19 what the immediate action. It's a very quick

20 emergency call.

21 The resource would follow within two

22 days according to this protocol. But the idea is

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1 that work would stop immediately. People would

2 be called. They'd know what they have to do to

3 come to a quick decision to save what they could

4 save and make sure that the goal of course is

5 preservation in every effort. So I hope that

6 that clarifies that.

7 It's very similar to what happens with

8 the unanticipated archaeological discovery.

9 Because of the nature of this site, like the

10 archaeologist has shown that there is not likely

11 to be any discoveries because of the creation of

12 the plinth, but there is law that says

13 specifically to do this.

14 There is not preservation law that

15 follows that, but this is a procedure that is now

16 adopted and anticipated. We hope we don't have

17 to use it.

18 So in conclusion for this section I

19 would like to say I think that the proposed

20 McMillan plan was informed by the landmark. It

21 was designed to retain and enhance the character

22 defining features.

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1 I will explain later a little bit

2 about how this all came together, but I think

3 it's important to understand that there were many

4 pressures on this site. I think that's obvious

5 as to what should happen to it.

6 And retaining the identity of the site

7 as McMillan was a key part of that. How that

8 happened is what you are looking at.

9 But the fact that that was the goal

10 through this is very important that we all

11 understand. Thank you.

12 MS. BROWN: I have one quick follow-up

13 question just to underline and put it in bold and

14 make sure everybody's clear.

15 You did clarify very well, Ms. Eig,

16 about the emergency plan. The number one goal is

17 that you are preserving cell 14 and partial

18 preservation of cell 28 end of story.

19 MS. EIG: Yes.

20 MS. BROWN: Okay. Thank you.

21 DR. BYRNE: Thank you.

22 MS. BROWN: We will return to Ms. Eig,

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1 but that was the foundation for how the plan was

2 developed.

3 So we are turn now to Matt Bell who

4 will give his testimony.

5 DR. BYRNE: Very good. And Mr. Bell

6 has already been qualified.

7 MS. BROWN: Yes, he was qualified last

8 time. Thank you.

9 MR. BELL: Good morning, Professor

10 Byrne.

11 DR. BYRNE: Good morning, Mr. Bell.

12 MR. BELL: I'm Matt Bell, principal

13 with Perkins Eastman DC, and we are the lead

14 designers for the McMillan master plan.

15 The plan as illustrated consists of

16 healthcare uses, residential uses of which about

17 85 are senior uses, for sale rowhouses, 99,000

18 square feet of retail uses and 12 acres of park

19 and open space.

20 The master plan was developed between

21 2006 and 2014 with the participation and input of

22 citizen groups and city civic associations, D.C.

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1 agencies, the Zoning Commission and the Historic

2 Preservation Review Board.

3 In the end the plan reflects direct

4 public input, adjustments made because of zoning

5 and preservation issues and a conceptual

6 direction that embraces the character of the 25

7 acre McMillan landmark.

8 For this presentation I will address

9 issues three and four alternatives to demolition

10 and issue two special merit features of land

11 planning and architecture.

12 I will demonstrate that the plan and

13 the program we are proposing with all the

14 benefits and constraints the proposed plan for

15 McMillan is the only feasible way to retain a

16 substantial part of the property as open space

17 and make the site usable for recreation purposes,

18 and the special merit of the plan we are

19 proposing cannot be achieved with less

20 demolition.

21 The site is located as part of the

22 overall landmark of McMillan as has been

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1 explained which is 92 acres.

2 Across the street is a diverse context

3 with a reservoir to the west and civil structures

4 and filtration cells today maintained by the Army

5 Corps of Engineers but the site is varied on all

6 sides, medical to the north with the hospital

7 center and the VA, the balance of the landmark to

8 the west across First Street and east and south

9 are townhouse development.

10 The site is located as part of the

11 overall -- excuse me, sorry.

12 This slide shows the plan in context.

13 And the plan is responsive to each of the

14 different contexts of the site.

15 Healthcare uses to the north are

16 adjacent to the Washington Hospital Center.

17 Residential uses to the center towards

18 residential districts.

19 The park, a high priority of

20 residents, to the south near Bloomingdale and

21 other residential neighborhoods.

22 Retail, also a high priority of the

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1 community is convenient to day workers and

2 visitors to the Washington Hospital Center and

3 the VA and also to residential neighborhoods due

4 to connectivity of the street system.

5 The community center and pool are also

6 a high priority and the park is also convenient.

7 The development program as specified

8 here is a rich and diverse development program

9 which includes healthcare buildings which will

10 have activity during the day, diverse residential

11 opportunities, retail opportunities that don't

12 currently exist in the neighborhood and of course

13 open space.

14 I will now show how the plan is

15 consistent with the character defining features

16 of the landmark.

17 I will review the design options of

18 the plan we developed over time. The challenge

19 we faced from the Historic Preservation Review

20 Board to articulate the essential characteristics

21 of the landmark, and in doing so show how those

22 defining characteristics are replaced in the

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1 development of the plan.

2 It should be pointed out that

3 preservation of the McMillan site is a

4 significant aspect of the comprehensive plan as

5 well as a significant element.

6 Significant characteristics are its

7 tripartite organization, two long east-west

8 service corridors with above-ground features, the

9 plinth, most emblematic, most emphatic when

10 viewed from the neighborhood particularly to the

11 south, views across the site from First Street to

12 North Capitol Street related to the site across

13 the street, and the perimeter Olmstead Walk.

14 So the challenge from HPRB was to

15 develop a master plan approach that embraced the

16 features you have just heard outlined and to

17 align three aspects - the comprehensive plan, the

18 development program, and the characteristics of

19 the landmark.

20 Our plan does that. The tripartite

21 organization is the basis of the plan. The above

22 grade north and south service courts are

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1 preserved, rehabilitated and incorporated into

2 the new plan.

3 The plinth that establishes the

4 exterior character of the landmark for the

5 community is reconstructed.

6 The Olmstead Walk is reconstructed.

7 Views across the landmark are maintained in the

8 park in the service courts.

9 Underground cells are incorporated

10 into the public experience of the master plan.

11 Cell 14 to the upper right and cell 28

12 apportioned in the park.

13 Stormwater management features are

14 incorporated throughout. Three parks, open

15 spaces are incorporated. Healing gardens above

16 cell 14 and the 6.2 acre park which includes 8

17 acres of the south service portage included to

18 the south, to the southern part of the site.

19 A new street network provides mobility

20 internally and connects to the community in

21 several new locations and enhances existing

22 locations. So it's much more accessible.

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1 Program is located according to

2 adjacency. As I mentioned healthcare to the

3 north, residential to the center, community

4 center and park to the south closer to

5 residential areas, and retail frontage. Retail

6 is located where there is an intersection of

7 commercial and residential program, and closest

8 to the existing development of the VA and

9 Washington Hospital Center in the north service

10 court, and in regulator houses and sand in places

11 at the south service court.

12 The plan has evolved over the course

13 of time between 2006 and 2014 with many

14 alternatives considered and each iteration the

15 result of more citizen and regulatory input, and

16 showing less demolition as the plan developed.

17 In addition, the master plan

18 addresses, balances, and incorporates elements of

19 the city's comprehensive plan as I mentioned. It

20 is the appropriate balance of open space, mixed

21 use development, and preservation/adapt for use.

22 I will now go through the evolution of

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1 the plan alternatives.

2 The 2006 plan covered much of the

3 site, had no healthcare facilities and did not

4 include much preservation. No plinth, no filter

5 beds, no complete piece of historic fabric

6 preserved. Only 4 of 20 silos preserved, 1 of 4

7 regulator houses preserved, no sand washer, no

8 Olmstead Walk, no adaptive reuse, no tripartite

9 organization. And the blocks had no clear

10 relationship to the historic pattern of the

11 resource.

12 The 2008 plan included both north and

13 south service courts but still had no clarity of

14 the tripartite organization. No plinth, no

15 filter beds, only 16 of 20 silos preserved, no

16 sand washers, no Olmstead Walk in its historic

17 location, no adaptive reuse, no community

18 facilities, no healthcare. Tripartite

19 organization is only emerging as I mentioned.

20 Lots have no clear relationship to the historic

21 pattern of the resource.

22 2009 included all of the north service

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1 court except for one silo, partial south service

2 court but had no plinth, no filter beds, only 11

3 of 20 silos preserved, no sand washers, no

4 historic Olmstead Walk in its location, no

5 adaptive reuse. Again, buildings with no clear

6 relationship to the historic patterns of the

7 resource, no community facilities and no

8 healthcare. And very little underground cell

9 preservation.

10 The 2011 plan included a larger park

11 stretching from North Capitol Street and views

12 across. Cell 14 was preserved, supported views

13 into the site from North Capitol Street here

14 coming down to North Capitol into the site.

15 It had no plinth preserved so it had

16 1.5 filter beds preserved. But again, no

17 tripartite organization. The Olmstead Walk is

18 very fragmentary on the east side. And again,

19 the buildings have very little or no clear

20 relationship to historic patterns of the

21 resource.

22 However, the north and south service

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1 courts were retained, healthcare uses were

2 introduced, silos and regulator houses were

3 slated for rehab and reuse, and there was a

4 community facility in the park.

5 Part of the problem here was the

6 community wanted a bigger park and we listened.

7 The Olmstead park and plinth was not continuous

8 or evident and as I mentioned the tripartite

9 organization not yet there. But it was progress

10 and more preservation.

11 In 2012 no plinth but we did have one

12 and a half filter beds preserved and we'll talk

13 more about that.

14 The tripartite organization was

15 emerging but was weak. The Olmstead Walk was in

16 fragments still. More emergent on the east side

17 but still a fragment, and again a problem with

18 the lots adjacent to the resource.

19 But does include healthcare uses, a

20 more mixed use program, retail, community uses.

21 But again, the tripartite organization and the

22 park size was thought to be a problem.

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1 In 2014 we made a big leap forward.

2 All the plinth was included. One and a half

3 filter beds preserved. The clear tripartite

4 organization advocated by HPRB is very evident as

5 compared to the other ones and therefore

6 approved.

7 The above grade resources preserved,

8 rehabilitated and reused.

9 The view corridors were preserved and

10 enhanced both into the site, across the site, and

11 north-south with a small network of streets

12 allowing you to see from the north service court

13 to the south service court.

14 Included a park system and a larger

15 park. As I mentioned the north-south visual

16 connection was established and it was emerging as

17 a more integrated master plan, seamless with the

18 historic character defined features.

19 This plan was adopted by the Historic

20 Preservation Review Board.

21 We went to an updating of the plan

22 which is shown here which includes children's

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1 playground in the park, revised stormwater

2 locations so new plaza details. Some detail

3 changes in the north service court and more park

4 space with a greater setback in this northwest

5 corner at the healthcare buildings.

6 But it's essentially the same concept

7 as approved by the HPRB.

8 As you can see the evolution of

9 alternatives has resulted in a design consistent

10 with the defining features of the landmark, more

11 reused preservation and rehabilitation, a unique

12 mixed use program, connectivity to the city,

13 connectivity within that highlights the landmark,

14 and access for all, increased community features.

15 It has evolved through the study of

16 alternatives into the least amount of demolition

17 we can do to achieve the special merit features

18 of the master plan.

19 So this is all the plan options. We

20 now have a plan that reflects a comp plan,

21 provides for the right balance and it got better

22 each time which is what it is supposed to do

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1 through the community and regulatory input, and

2 all the alternatives that preceded the plan have

3 resulted in the coherent and approved plan

4 adopted by the HPRB that you see today.

5 DR. BYRNE: I have a question. The

6 current plan that you're showing, that's been

7 approved by the HPRB as well?

8 MR. BELL: Yes.

9 DR. BYRNE: Thank you.

10 MR. BELL: This one.

11 DR. BYRNE: Yes, thank you.

12 MR. BELL: So, just the design

13 evolution to show specifically how our

14 preservation adaptive reuse strategy went from 18

15 to 24 above grade structures and now includes

16 below grade items.

17 This is 2008. Now the January 2011.

18 And then the May 2014. And you can see the

19 evolution from 18 to 24 above grade structures,

20 the inclusion of cell 14 and a portion of cell 28

21 which is here, and the full restoration of the

22 Olmstead Walk.

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1 I will now show how specifically the

2 development program strategy evolved to a more

3 refined approach reflecting the changing needs of

4 the city and the inclusion of affordable housing

5 from 2008 to 2014.

6 So the original program and then we

7 move to the inclusion of healthcare, the

8 different residential program, you see where the

9 site had a smaller community center, and then to

10 a program that includes a larger community

11 center, the healthcare program and obviously the

12 clarity of the tripartite organization and the

13 retail, and the grocery store which evolved into

14 this plan.

15 I will now show how specifically our

16 plan evolved to a more compact design, retaining

17 more of the historic character defining elements

18 and providing more community uses such as park

19 and community center.

20 So in 2008 we were building on 19

21 acres with a footprint. In 2011 16 acres was the

22 footprint. In 2013 again 16. And finally in May

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1 2014 we're building on 13 acres. So we're just

2 using over 50 percent coverage on the site which

3 allows for more of the expanse of the park and

4 the elements to be experienced. So the plan has

5 evolved towards something which is more compact,

6 features more of the landmark features, provides

7 more of the community amenities and is a greater

8 synthesis for the various folks giving input to

9 the plan.

10 Let us consider for a second altering

11 the overall balance of open space development and

12 preservation in the master plan.

13 More open space -- were the plan to

14 have more open space less development would be

15 there to activate public spaces.

16 Less affordable housing. Less

17 healthcare uses. Less revenue to support public

18 amenities. Less retail because of the smaller

19 development program. Less retail for the

20 community - highly valued. Less job training and

21 job creation.

22 If we did more development we'd have

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1 less open space and less preservation. And more

2 preservation, less vitality of a mixed use

3 program.

4 I will turn to this in more detail

5 shortly.

6 Let us now turn to the special merits

7 of land planning in the master plan. This is the

8 project view from the southeast. This view is a

9 good one to speak to the special merits of the

10 project.

11 First of all, the view emphasizes the

12 coordinated design whereby the street layout,

13 system of open spaces, park access, public

14 amenities, scale and location of buildings, the

15 appearance of the buildings and the integration

16 of the landscape is all brought into a seamless

17 integrated approach where the sum of all the

18 parts taken together provides a sense of place,

19 diverse public experiences of shopping, living,

20 working, and recreating.

21 An individual development or a small

22 group is not capable of such a transformative

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1 impact at such a scale.

2 This is particularly special because

3 the manner in which the master plan uses the

4 basic organizational framework of the existing

5 landmark to include and highlight historic

6 features located in the development and bring

7 public access to a 25 acre site which was

8 previously a no man's land in the city cordoned

9 off.

10 The buildings provide coordinated

11 exemplary architecture both in and of themselves

12 and as they relate to each other, and as they

13 relate to the landmark.

14 So the site itself provides the

15 underlying basis for special merit because of the

16 unusual features of the site. The two service

17 courts, the plan of the plinth higher to the

18 south into the grade of the north, the

19 surrounding landscape of the Olmstead Walk as

20 Emily's gone through a lot of these aspects, the

21 character defining above grade features, silo,

22 regulator houses, sand washers.

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1 And so the challenge of appropriately

2 incorporating the underground not visible

3 filtration cells is evident structurally unstable

4 as Chris Ruiz has mentioned and diffused

5 identically all over the site.

6 The challenge from weaving the project

7 into the context as well so that it adds to the

8 vitality of the community, the surrounding

9 community while needing to retain the unique

10 identity of McMillan. We have done that.

11 The master plan derives four themes

12 that have guided the development. Health. The

13 initiative by Senator McMillan was part of

14 broader initiatives in the United States and the

15 rest of the world to make cities more livable and

16 eradicate disease.

17 Water. The project brought clean,

18 safe and fresh drinking water to the city.

19 Sustainability. Good sustainable

20 design starts with strong patterns of settlement

21 and then goes into site and building performance.

22 Realizing this master plan is putting walkable

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1 new development in a place where such development

2 can thrive can make place and add to the

3 livability of surrounding neighborhoods and

4 institutions.

5 Preservation. A key element of

6 McMillan is the manner in which the character

7 defining elements of the landmark are woven

8 seamlessly into the plan, featured in appropriate

9 places and adapted for new uses.

10 This is a special approach and not all

11 buildings or even master plans are guided by such

12 guiding themes.

13 One way of understanding the special

14 merit of a master plan is to understand the

15 impact it will make on the surrounding context.

16 Presently the site inhibits

17 connectivity, seals off the city some part from

18 another, and does not contribute to the vitality

19 of surrounding neighborhoods.

20 The master plan opens up the site for

21 access. From the north a garden welcomes you

22 upon arrival, particularly important to people

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1 coming from the VA and the Washington Hospital

2 Center.

3 Along North Capitol Street the north

4 and south service courts are adapted for

5 pedestrian, bicycle, vehicular and service

6 access. An additional street between the two

7 provides an additional point of access. Access

8 is also provided from North Capitol Street into

9 the park.

10 Small streets within the plan provide

11 a choice of ways to move supported by a network

12 of sidewalks, bike lanes and paths including the

13 Olmstead Walk.

14 The richness of the master plan

15 program is also unique and adds to the vitality

16 and experience of McMillan.

17 Healthcare uses bring daytime activity

18 that supports retail development so desired by

19 the community.

20 Diverse housing options will bring a

21 unique and rich cross section of the community to

22 live there.

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1 New open spaces are available to be

2 enjoyed by all city residents as are features

3 such as the walking museum and the community

4 center.

5 This is a unique constellation of

6 program elements not found in one-off projects

7 and in their aggregation provide for a living,

8 working, shopping, recreation experience unique

9 in the city and certainly of special merit.

10 This is illustrated and underscored in

11 the color code uses of medical. Note the manner

12 in which the simple new grid introduces

13 interconnectivity between those uses as defined

14 by the north and south service courts and

15 supports the perimeter berm and the park.

16 The non-visible features of the

17 landmark are also incorporated with the inclusion

18 of one entire cell, cell 14 and a partial one in

19 cell 28.

20 As Mr. Ruiz has explained these

21 features are structurally unstable and will

22 require significant intervention to be stabilized

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1 and safe.

2 As we note as well the particular

3 challenge that they were constructed for

4 industrial use and never meant for human

5 habitation.

6 Mr. Bruce Leonard of Streetsense, a

7 retail design and development expert, testified

8 earlier about the technical and programmatic

9 challenges of adapting underground cells for

10 retail and his conclusion was that this was not

11 possible. But they are unique.

12 Nonetheless we are weaving them into

13 the unique McMillan experience as part of the

14 master plan.

15 It is important to recognize that each

16 cell is about 1 acre, is separated completely

17 from the next one, and all cells retain the same

18 features, the wall, the portal, the underground

19 columns and vaults and manhole of putting to

20 surface.

21 As such, if you experience one

22 complete cell as we are proposing in cell 14 you

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1 will have a complete experience of understanding

2 the underground cellular component of the

3 landmark.

4 This is what we are proposing in cell

5 14, to stabilize, rehabilitate and preserve the

6 cell so that it can be there for future

7 generations to understand how McMillan

8 functioned.

9 Cell 14 is part of a new retail street

10 of the north service court. Public activity here

11 will be high and that location will help visitors

12 understand the history of McMillan.

13 In addition, by preserving cell 14 we

14 are able to preserve views into McMillan for

15 travelers southbound on North Capitol Street

16 looking into the site this way. And as they see

17 today the silos of the north service court.

18 Cell 28 offers a different experience

19 and participates in the experience of the park,

20 and will be adapted such that all visitors to the

21 park will be able to see into that structure.

22 And it will be stabilized such that park

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1 activities can occur above.

2 The existing grounds become part of

3 the Olmstead Walk and the park system surrounding

4 the site as illustrated here in this three

5 dimensional drawing.

6 Also here showing how the perimeter

7 berms are woven into the various park experiences

8 in the site.

9 Let me now turn to special features of

10 land planning. And others will address this as

11 well.

12 Housing and affordable housing - 677

13 units of new housing articulated here with a

14 breakdown in various levels of affordability for

15 the housing for seniors and also other affordable

16 housing.

17 Community center, 25 meter pool,

18 locker and shower facilities, multipurpose

19 meeting rooms, catering kitchen, fitness studio

20 and outdoor gathering spaces open to everyone in

21 the community.

22 The healthcare facility, 860,000

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1 square feet devoted to medical office and related

2 healthcare uses, 173,000 in a future phase on a

3 portion of parcel 2, formerly parcel 3.

4 Retail space on the ground floor which

5 activates the north service court, and it creates

6 a medical district joined with facilities across

7 Michigan Avenue.

8 The grocery store on parcel 4 is

9 unique, unusual, not in every master plan and is

10 part of the 99,000 square feet retail program.

11 We are also including environmentally

12 sustainable design, LEED ND standards at gold or

13 equivalent, individual project compliant with

14 LEED Silver or green community standards,

15 articulated here meets silver ratings for the

16 parcels of item 1, 2, 4, 5 and 6, and the

17 inclusion of low-impact design techniques in

18 places like sidewalks, roadways, alleys, parking

19 spaces, bioswales, tree pits, and inlets,

20 filters, grid separators, rain guardings,

21 detention walls and cisterns.

22 Transportation features include

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1 transit hub features, shuttle to the Brookland

2 Metro Station, Capital Bikeshare stations, bike

3 rack and storage facilities, ample parking,

4 internal street grid, broad connectivity, safe

5 pedestrian crossing features, traffic lights to

6 reduce congestion and facilitate traffic flow,

7 three sets of corner concrete stairs that allow

8 access from the outside to be reconstructed, and

9 of course all being accessible.

10 Let me speak now about exemplary

11 architecture for McMillan. We are using

12 specially crafted design guidelines to make an

13 architecture through McMillan that is exemplary

14 in design and compatible with the landmark.

15 Compatible with the landmark and

16 exemplary design were two challenges we have met

17 from the Historic Preservation Review Board.

18 We begin by examining and

19 understanding the landmark character defining

20 features itself as articulated by Ms. Eig.

21 These images, prepared by Traceries,

22 show how the features of the architecture from

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1 the silos and the regulator houses to other

2 details such as manhole covers, pavements and

3 other materials exist onsite. Here's more and

4 some detail similar to what Ms. Eig showed.

5 From that the design team developed a

6 series of diagrams that explained the DNA of

7 McMillan to help guide our thinking about

8 creation of new buildings and new architecture.

9 So this one we see the skin pattern of

10 the silos, overhanging plants, singular forms

11 which is characteristic as well of the silos, and

12 the way exit and entries are made.

13 In this one we look at the plinth as

14 a characteristic piece diagraming that,

15 vegetation, framed openings, and canted walls

16 over service courts.

17 We have also studied the existing

18 above-ground elements to see how they can be

19 adapted into contemporary use. So this is a

20 drawing of the silos and this is a drawing that

21 shows what might occur inside them. There's some

22 low -- the existing silos have very low ceilings

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1 so it is a challenge to figure out how they might

2 be adapted but we are exploring that with things

3 like cafes, or small vendors, or perhaps

4 restrooms and service facilities.

5 The regulator houses are being studied

6 for things like cafes, community spaces, perhaps

7 community offices and retail.

8 We are restoring and preserving one

9 regulator house and one silo to their original

10 condition as well as part of the plan.

11 Essential to understanding the spaces

12 made -- essential to understanding the master

13 plan is also the spaces made, not just the

14 buildings themselves, the spaces made by the

15 landmark and repurpose them as well.

16 So for example, the spaces between the

17 regulator houses and the silos become repurposed

18 for things like outdoor seating for restaurants

19 and cafes.

20 Interventions that make the site and

21 the park more accessible. So this is from North

22 Capitol Street looking into the park. So this is

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1 a break in the berm wall for bridges developed in

2 the language of McMillan which is concrete.

3 The canting of the berm which comes

4 along and turns the corner is in the language of

5 McMillan for the berm.

6 And the public amenity of the

7 community center, the glass building mostly

8 prismatic, similar in a simple form like the

9 design guidelines in the DNA I said earlier is in

10 contrast to the solidity of the existing things

11 like the silos and the regulator houses.

12 Also repurposing things like the sand

13 washers to become part of the public space

14 experience.

15 Adapting character defining features

16 to frame the entry into new public amenities such

17 as a portal in the south service court, existing

18 portal adapted to frame the entry into the

19 community center creating new points of

20 pedestrian access previously blocked or

21 inaccessible.

22 Our design guidelines and precedents

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1 we looked at for buildings and palettes we

2 thought were compatible. We are seeking in the

3 design guidelines, our investigation included

4 looking at a unified pallette will affect what

5 are compatible materials, what is the

6 fenestration and how we get buildings to relate

7 to each other in terms of fenestration,

8 advocating simple geometries in massing.

9 Things like looking at how you deal

10 with the north service court, the unified podium,

11 the setback above the podium, recalling the north

12 service court walls which we are taking out and

13 congruent store fronts, and how rowhouses are

14 composed as singular buildings.

15 So the challenge is to come up with a

16 design pallette. So we have buildings of

17 different use, different architects, all very

18 good architects, but different scales. So you

19 have to unify them. HPRB said we need an idea of

20 how this still reads as McMillan as the landmark.

21 So the primary building color is

22 white. The secondary color is used for

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1 fenestration and railings and things, charcoal.

2 Then the tertiary building color a wood grain

3 which is really highlighted to be used in

4 highlights.

5 This picture results as a family of

6 buildings. These of course are going to have

7 different programmatic issues and different

8 construction techniques, but they relate to each

9 other.

10 They clearly are organized around the

11 design pallette. They have a hierarchy of the

12 pallette. The orientation of the elements and

13 the windows and the percentage of them, the

14 facades relate to one another.

15 And so it all goes together so you

16 look at them and say they can be no place else.

17 They are unique to McMillan and as such the sum

18 of them is greater than any individual building.

19 The buildings by themselves are quite

20 good, but taken together they add something else

21 and something special, and that's special merit.

22 At the north service court we have set

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1 the buildings back above the first floor. This

2 was something that was talked about and supported

3 by HPRB to give more space to the landmarks in

4 that particular area because we have buildings

5 that are a little bit taller than the landmarks.

6 So we have them set back on the

7 podium, and that podium is organized in a way

8 that recalls the service court walls.

9 However, this is a retail district so

10 they need a lot of glass as well and that's what

11 you see there.

12 Another angle. This shows cell 14 as

13 you come down North Capitol. The view of the

14 silos there. The grocery store building with

15 multifamily residential and senior living above

16 in the design pallette of McMillan with the three

17 windows that are in our vocabulary discussion

18 with the three regulator -- three silos outside.

19 The view down Half Street with the

20 townhouse pallette, the bay windows, and the

21 principal white walls of the townhouses relating

22 of course to the pallette we've set up.

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1 And then important as well, the street

2 system, things that were not really viewed on

3 access. So you see the silos sort of shifted off

4 a little bit.

5 So it allows you both to see the silo,

6 this unique view, and into the park beyond. So

7 it reveals more of the historic context. Then

8 the inclusion of paving and the parking area, and

9 ring yards on both sides of that street.

10 The townhouse design in particular is

11 unique. Typically builders want townhouses these

12 days where every building is almost different.

13 Here we are designing the townhouses in unified

14 so-called sticks of design so that they are

15 balanced and symmetrical. They look like

16 something that really has a kind of harmony per

17 street, whether they're long elevations like you

18 see here on the bottom or shorter elevations

19 above. This is something certainly of special

20 merit and not typically done in the architectural

21 design of these kinds of projects.

22 And you can see them in the south

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1 service court here. South service court we are

2 repurposing the north side of the south service

3 court wall there for entries into the sidewalks

4 and engage them in a dialogue between the south

5 service court and the residential development as

6 well.

7 And we are coordinating in the

8 language of McMillan.

9 Simple forms like the community center

10 here, simple design pallette with colors using

11 for example materials like the arch made out of

12 concrete as I mentioned to relate to the history

13 of the place. And also even the scoring of the

14 paving into the park areas to be a feature that

15 one could recognize as only a feature you would

16 find at McMillan.

17 So the exemplary architecture provides

18 for -- and this includes some architecture on

19 planning -- a cohesive master plan and integrated

20 building design approved by the Historic

21 Preservation Review Board that celebrates the

22 unique engineering history of the site for water

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1 purification.

2 The design guidelines have been

3 approved and supported by HPRB. It provides a

4 framework for a coordinated effort among multiple

5 developers and architects which is something

6 surely of special merit that doesn't always

7 happen in one of a kind one-off building

8 projects.

9 It provides a unified design across

10 the site while allowing some individual

11 architectural expression.

12 The development is organized around

13 historic north and south service courts. The

14 activation of historic resources and service

15 courts occurs in the voids between the buildings

16 as well, and the new street grid integrates the

17 site both within itself with small blocks and

18 very walkable areas, and connecting to the

19 surrounding community.

20 The recreation of the Olmstead Walk

21 becomes a publicly accessible path obviously.

22 And new landscape and recreational park features

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1 have never been associated with the park before

2 and therefore are new amenities as part of the

3 master plan, including the playground, the

4 natural amphitheater in the southeast corner, all

5 coordinated together with a walking museum.

6 So, can special merit features be

7 achieved with less demolition? My answer is no.

8 As I mentioned, more open space for

9 cell preservation provides less development to

10 activate those spaces, less affordable housing,

11 less healthcare uses, less retail for the

12 community, less job training and job creation.

13 We should have more development, less

14 open space and preservation as evidenced by the

15 alternatives we looked at earlier.

16 More preservation, less vitality of a

17 meaningful mixed use program, less development

18 revenue, and my colleagues will talk about that

19 to support preservation, and the elimination of

20 special merit features of the program and other

21 things I mentioned.

22 So just to be specific, to look at the

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1 north service court walls which we are proposing

2 to take out except from cell 14. We're keeping

3 the ones from cell 14 which is part of the

4 structure of cell 14.

5 Retail, highly valued by the

6 community, supported by the Historic Preservation

7 Review Board needs visibility, it needs

8 transparency.

9 So were those walls to be retained

10 retail would fail. And retail would not work in

11 coordination with keeping the north service court

12 walls.

13 In addition, if the retail fails you

14 can't simply just put retail in the regulator

15 houses and the silos. Those are going to be

16 dependent for success upon other people coming

17 there to enjoy the other retail amenities. So

18 they're all together in the same idea.

19 South service court walls as well. We

20 are repurposing those. We have made openings in

21 them for the street system. But were you to have

22 more of that closed off you would compromise the

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1 connectivity of the plan which is a special

2 feature to promote connectivity and visibility

3 north-south within the plant.

4 Let's talk about retaining more cells

5 in general. Were we to retain more of the cells

6 each additional preserved cells eliminates one

7 acre plus or minus of development.

8 Loss of one acre of development

9 eliminates the development program. And Mr.

10 Weers and Mr. Thakkar will speak to that in

11 detail.

12 A cell, a portion retained in the

13 north third eliminates the healthcare program.

14 So that program is there and to replace that --

15 Mr. Weers will speak in detail to that.

16 A cell or portion of the cell retained

17 in the middle third compromises the tripartite

18 reading supported by HPRB. It's a very clear

19 reading now. It compromises that.

20 It also, depending on where you select

21 would cause there to be less retail and could

22 eliminate the grocery store which is highly

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1 valued by the community and anchors the retail

2 experience.

3 Also, were it to be facing onto the

4 north service court it would interrupt the retail

5 continuity. And as we know retail depends upon

6 continuity for success.

7 It could conceivably as well eliminate

8 market rate, senior and affordable housing or

9 material aspects of that, and eliminate as well

10 the healthcare program because part of healthcare

11 is in this location here.

12 More cells in the bottom third would

13 create less usable park land because of the

14 structural instability. We're proposing 28 as we

15 mentioned to be made structurally stable and

16 looking into that.

17 If it were to be put at cell 27 it

18 would eliminate playground space for youth and

19 families. Put here in cell 28 it would eliminate

20 the pool and the community center and plaza.

21 Going further east in cell 29 it would

22 eliminate the visibility and entry into the park,

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1 and accessibility from North Capitol Street, and

2 it would make the two story feature of the

3 community center not possible.

4 Cell 28 participates in the

5 understanding of the site by how we designed it

6 to be part of the park experience as well.

7 So as you've seen the special merits

8 proposed are extraordinary and unusual. We

9 cannot demolish less and achieve the same level

10 of special merit features. No other plan in my

11 idea is possible.

12 DR. BYRNE: Thank you, Mr. Bell. A

13 couple of questions if I might, just really a

14 clarification for me.

15 The Olmstead Walk, what happens to the

16 Olmstead Walk when it reaches the service court.

17 It's at grade?

18 MR. BELL: Exactly as it did.

19 DR. BYRNE: Exactly as it did. You

20 mean in other words it historically went along

21 the service courts.

22 MS. BROWN: Could I answer? The place

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1 it's discontinuous is the new entry that is south

2 of the service court.

3 The service courts remain stable and

4 the walk --

5 DR. BYRNE: Just goes across it. It

6 has to be accessible. Okay.

7 On one of the maps it showed a

8 healthcare building that is south of the service

9 court.

10 MR. BELL: Yes. That's part of the

11 healthcare program.

12 DR. BYRNE: That's part of the

13 healthcare program. Is that a healthcare office

14 building?

15 MR. BELL: That is a healthcare

16 building, yes. It will have retail on the ground

17 floor. This building here.

18 DR. BYRNE: So that means there are

19 three healthcare buildings.

20 MR. BELL: One, two, three.

21 DR. BYRNE: That's different than last

22 time.

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1 MS. BROWN: It is the same but it

2 probably wasn't called out specifically. And Mr.

3 Weers will testify to that.

4 DR. BYRNE: Okay. You mentioned that

5 each of the underground cells is sealed off from

6 each other. So that means that there is

7 continuous concrete walls that surround each of

8 the cells.

9 And has there been any thought, I

10 guess maybe this is a question for Mr. Ruiz,

11 about what would be the effects of penetrating

12 those walls, or access?

13 MR. RUIZ: Penetration of a wall as a

14 door is possible, yes. But going from cell to

15 cell we have not looked at just because keeping,

16 as he said, a full cell and then another cell had

17 not been in the plan.

18 DR. BYRNE: So what structural steps

19 do you take to stabilize cell 28? And are those

20 consistent with the historic character of cell

21 28?

22 MR. RUIZ: Yes, it's similar to what

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1 we showed in our presentation of putting a silo

2 on top and reinforcing the foundations, and

3 keeping the sand. So any reinforcement of the

4 foundation you would not see. And limiting

5 access underneath.

6 DR. BYRNE: So people would not be

7 able -- you would be able to look in there, but

8 not go in.

9 MR. RUIZ: That is our understanding.

10 DR. BYRNE: One of the things that you

11 mentioned were variety of the environmental

12 features of the site in terms of water retention,

13 LEED silver, et cetera.

14 Can you give me any information as to

15 whether those are above what would be required

16 for any construction on a city-owned site?

17 MR. BELL: The LEED silver for the

18 buildings is what would be required I believe.

19 For city-owned buildings LEED gold --

20 DR. BYRNE: If you're not the right

21 person to ask I can --

22 MR. BELL: Well, I think the private

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1 developers can talk about their objectives there.

2 DR. BYRNE: Okay.

3 MR. BELL: But we are LEED

4 Neighborhood Development gold is not -- that is

5 something we're pursuing.

6 DR. BYRNE: That's something you're

7 pursuing. And how about fire? What type of fire

8 retention? Okay, good. Thank you.

9 MS. BROWN: I have just one or two

10 quick follow-up questions.

11 Mr. Bell, you've discussed and I think

12 you've read the court decision that says that we

13 cannot count the historic preservation benefits

14 as part of the special merit package. And you

15 had a couple of slides that talked about the

16 adaptive reuse of the regulator houses.

17 I was wondering if you could

18 distinguish that for us. I don't believe that

19 was on your list of special merit features when

20 you had your list, is that correct?

21 MR. BELL: Yes, reusing those features

22 would be something unusual for this plan.

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1 Repurposing the silos and regulator houses for

2 sure.

3 MS. BROWN: You also talked about the

4 open space and the court decision also said that

5 it would be double counting if we said the open

6 space was a preservation benefit and that was

7 more appropriately discussed as consistent with

8 the purposes of the act.

9 Are there new elements being

10 introduced to the existing conditions that

11 distinguish that?

12 MR. BELL: Well, yes. The new

13 elements, the park space, usable park space, the

14 community center, playground, the healing

15 gardens, these are things that didn't exist there

16 before. And they are part of the new open space

17 program.

18 MS. BROWN: And then getting back to

19 the regulator houses adaptive reuse is a

20 preservation plan and it's part of the consistent

21 test.

22 I think you testified to the voids

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1 between them as something that is a little

2 different than adaptive reuse and activating

3 them. Is that correct?

4 MR. BELL: Yes. One has to seek

5 opportunities where one can in existing

6 conditions. And one of the benefits is the space

7 between the silos and the regulator houses are

8 ample enough that they can be activated in a way

9 that brings new life to the project that

10 obviously didn't exist previously.

11 MS. BROWN: Would you say that the

12 development plan that you developed here, this

13 master plan is common to all projects? Would you

14 do this for a matter of right project?

15 MR. BELL: No. This is quite a unique

16 design. Many of the features included in the

17 approach and the coordination would typically not

18 be part of a matter of right project.

19 MS. BROWN: Thank you.

20 DR. BYRNE: Another question occurs to

21 me. To what extent is activation an established

22 concept in planning literature? In other words,

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1 part of your argument as to why this park is

2 superior to what some of the residents would like

3 which is just to keep the whole thing open as a

4 park, and we talked about this last time, is the

5 idea of activation.

6 I wonder if you can cite some

7 literature to me -- I mean not off the top of

8 your head, but tell me more about what the role

9 of activation is within the master plan.

10 MR. BELL: It's very important to try

11 to I think in making public places to get a lot

12 of different uses together.

13 So this plan has a lot of things that

14 you don't typically find that I think have an

15 important role to play in activation.

16 So for example, in this part of the

17 world there aren't a lot of office buildings. So

18 the medical office buildings will bring a daytime

19 population to the site that is unique.

20 What is that daytime population going

21 to do? They're going to sit in the park spaces.

22 They're going to patronize the retail. They're

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1 going to visit the site and learn about it. It's

2 going to bring people there. It's going to

3 activate the place in a way that for example if

4 it was just a residential program wouldn't be

5 nearly as good.

6 It has a diversity of housing types.

7 So we have senior housing. So seniors are going

8 to be there. They have different patterns of

9 walking around and visiting and shopping than do

10 other folks. So that activates things.

11 The community center in the park, it's

12 not just simply a grassy area, but that will

13 bring young people, teens, families, everybody to

14 the site that will activate those spaces.

15 What we have found and in my

16 professional career both teaching and practicing

17 architecture is the best public spaces are the

18 ones where that level of activation occurs over

19 the broader horizon of a day.

20 So people who are leaving for work,

21 they go to the coffee shop and retail and they

22 have coffee. People who work at the hospital

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1 center or visiting people there, have business

2 there, they might come there for lunch.

3 The grocery store as a unique element

4 brings people there to activate the space.

5 And the buildings and the way they're

6 designed face onto the streets. So it is really

7 key that you have positive surveillance, whether

8 it's a multifamily or a senior building or a

9 rowhouse or a healthcare building that people can

10 see into the public spaces and see what's going

11 on.

12 And the public spaces are nearby.

13 They're easy to reach. And they have amenities

14 that people want to partake of.

15 So current planning theory I think is

16 really getting away from single use projects into

17 projects whereby if you can successfully combine

18 different uses, different populations, different

19 cohorts of age groups you have a much greater

20 chance at great place making. And that's what

21 we're doing.

22 DR. BYRNE: It's a legacy of Jane

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1 Jacobs to some extent.

2 I wonder in your submission if you

3 could please cite some contemporary planning

4 literature -- this is the disadvantage of having

5 an academic as the Mayor's Agent hearing officer

6 but that would be helpful.

7 MR. BELL: Sure. Happy to.

8 DR. BYRNE: Okay.

9 MS. BROWN: Just for planning

10 purposes, I see it's 12:45. I think we probably

11 have about 25 minutes or 35 minutes.

12 DR. BYRNE: Thirty-five minutes.

13 MS. BROWN: So, if that.

14 DR. BYRNE: Okay, so we could be done

15 by 1:15, 1:20.

16 MS. BROWN: Yes.

17 DR. BYRNE: Okay. And then we could

18 take a break at that point. Okay.

19 MS. BROWN: We're going to swing back

20 to Emily Eig who's going to now evaluate

21 everything that's been put together in terms of

22 remand issue number one, consistency, and remand

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1 issue number two, special merit.

2 MS. EIG: And I'm also going to

3 actually -- I'm just discussing remand issue one,

4 consistency, two, special merit, and a discussion

5 of subdivision as an aspect of this.

6 So the remand issue number one. As

7 the proposed project's preservation benefits

8 taken as a whole outweighs historic preservation

9 harms.

10 So the concept of consistent with the

11 act is what I'll be discussing right now. And I

12 would like to introduce this as that it is very

13 hard sometimes to separate what is a special

14 merit from what is consistent with the act

15 because there are benefits from being consistent

16 and merits that require being consistent.

17 So I will try to organize it. And I

18 hope that it works to explain my position here.

19 So consistent with the purposes of the

20 act with respect to historic landmark means to

21 retain and enhance historic landmarks in the

22 district and to encourage their adaptation for

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1 current use as well as to encourage the

2 restoration of historic landmarks. This project

3 does both.

4 To create a project like this there

5 are many challenges. And in terms of the concept

6 of consistency it's the retention of the landmark

7 that is key. And how there's one approach to

8 that.

9 So I'm approaching this in a fashion

10 of explaining the challenge and then some ways of

11 resolving that, coming to solutions.

12 And the first is obvious. It's

13 preservation efforts. What do we do to preserve

14 the landmark itself. And I have a little

15 animation here.

16 Okay, so the preservation is the first

17 and foremost of the Secretary of Interior's

18 standards. And we can think of preservation as

19 stabilization, retaining and stabilizing.

20 The second is that we -- in terms of

21 the -- is that we are preserving the tripartite

22 organization, the boundaries, the service courts,

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1 all of this is being preserved.

2 We are in rehabilitation now. That

3 rehabilitation is looking towards the above-

4 ground resources. And rehabilitation is a wide

5 range of repair and reuse and changes to

6 accommodate adaptive reuse.

7 Thirdly we are doing restoration in

8 that there are -- in fact there is one regulator

9 house and one silo or sand bed that are actually

10 being restored to their original condition which

11 in the case of the regulator house means it has

12 no floor. The regulator houses don't have

13 floors. The water was coming through pipes.

14 So that will be retained. So you'll

15 be able to walk in and there will be a glass

16 piece over it so you can see how it worked. You

17 can walk into the sand bed but it will not be

18 adaptively reused, it will actually be as it

19 looked. The idea is that we would understand

20 that.

21 The sand washer is the same thing.

22 We're retaining all of the sand washers but at

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1 least one but probably more of them are going to

2 be restored and some will be adaptively reused.

3 Some will be moved. But that is part of it.

4 We're also doing reconstruction and

5 that has to do with the corner stairs that are

6 missing and the Olmstead Walk that goes around

7 the entire perimeter. Actually it's not the walk

8 itself but also the landscaping that is there.

9 There were cork trees originally.

10 We're using Washington Hawthorn but similar in

11 scale and appearance. And the idea is to give

12 that clear identity of the landmark in this

13 section of the landmark.

14 The general overview of the project as

15 proposed by this team is it retains the

16 rectangular form. It retains the plinth form.

17 It retains a berm form. The tripartite

18 organization, reciprocal relationship between the

19 service courts, the pedestrian walk, all of cell

20 14 and part of cell 28. So this is consistent.

21 It's preservation.

22 And I think that when we really talk

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1 about what are we demolishing it's what's below

2 ground. It's not what's above-ground. What's

3 changing above-ground is rehabilitation and

4 adaptive reuse.

5 As I stated there will be restoration

6 as well as rehabilitation of the above-ground

7 resources. And Matt showed you that there are

8 some different plans of how they can be reused.

9 There is a variety of ways.

10 But the ones that are rehabilitated

11 you'll be able to walk into and it will no longer

12 be a hole in the floor. The equipment, perhaps

13 some of it will be there in the original form,

14 perhaps not depending on what the use is.

15 The reconstruction of the plinth, the

16 Olmstead Walk, that is obviously key to the

17 identity of this.

18 And preservation of 100 percent of a

19 cell. The cell 14 is entirely -- will be there.

20 As Mr. Ruiz said the intention is to stabilize it

21 so that you can walk on top of it. You will not

22 be able to build on top of it but you'll be able

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1 to walk on top of it.

2 And there will be as necessary

3 stabilization. But it is not something that will

4 be occupiable. You can perhaps, we hope perhaps

5 we can have a tour but we definitely look in and

6 see it.

7 And because the way the cells are

8 designed you see a whole -- you can't see the

9 edges it's so large.

10 So the second in terms of consistency

11 is maintaining the identity as an industrial

12 site, not just as part of the landmark, but the

13 landmark as a whole as a reservoir. It had a

14 recreational park. It had sand filtration filter

15 beds.

16 So keeping that idea that this part of

17 it was industrial. We know that it was

18 industrial. We have photographs. We know that

19 that's how it worked. It operated until 1987 as

20 a filtration plant. And we want to keep that,

21 retain the consistency with that.

22 Maintaining the plinth is probably the

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1 biggest part of that because this could not work

2 if there wasn't the plinth. That's how it

3 actually -- the level ground was required.

4 The southern plane is on the most

5 accessible part of this because the fact is that

6 we're using that southern third portion and it

7 will retain the sense of the open plain.

8 The community building is designed to

9 look almost like it's rising from the plain.

10 It's very flat roofed. It will have a green roof

11 and you'll have a sense.

12 It goes underground so that it doesn't

13 project too high. So there is a sense of

14 horizontality that will be maintained.

15 The relationship to the service court

16 will be the same. That court is there. That's

17 where the restored components will be.

18 The historic views if you walk along

19 the edges and look to the west or to the east you

20 will see the plain.

21 Now, what was there originally is not

22 what there's now. The exterior area around the

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1 site was only to the southwest for any

2 construction. There were open fields -- to the

3 north was the Old Soldier's Home and there was a

4 farm to the south when this was done. So it's

5 different than what was there. The views are not

6 the same. But you'll be able to see up

7 reciprocally to the north to the north service

8 court.

9 You will definitely have a sense of

10 place and I think that's what's really important.

11 You'll be able to walk on the west side of

12 Olmstead Walk and look at the reservoir. And

13 that is going to be a very special experience

14 that has not -- no one's really been able to

15 enjoy legally for a long time. A very long time.

16 And the reconstruction of the walk

17 will allow access onto the site. These corner

18 stairs will mean that people will have easy

19 access to get in. There will not be a fence

20 around it with a lock anymore. They will be able

21 to walk around the entire site consistent the way

22 it was originally. Obviously there is

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1 construction, new development on the site, but

2 the sense of its whole will be experienced.

3 And you will understand that there's

4 something there that's special, that is different

5 from what is to the south, to the north, and to

6 the east, and you will understand the

7 relationship to the west of the reservoir and the

8 filter beds there.

9 So this slide is actually -- it's

10 missing the picture from Matt Bell of adaptive

11 reuse. Adaptive reuse is really important so

12 let's just move to the next slide.

13 Because that's the incorporation of

14 these resources into the master plan. And that's

15 where we're getting sort of it's consistent but

16 it also provides special merit in that we are

17 providing the opportunity to use, to walk into

18 these cells. The adaptive use is something that

19 is definitely a hallmark of historic preservation

20 in our country and in the world.

21 The opportunity to walk on the site

22 and to experience it is very much part of

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1 consistency.

2 The adaptive reuse will allow people

3 to have access and to experience the entire site

4 that they never did. They were not supposed to

5 be walking on the plain. If they did not that

6 was not the intention and they might have fallen

7 into a manhole that provided to the industry

8 before, or been told by one of the workers to get

9 off the space.

10 So I think that there is a lot of ways

11 that this is consistent. Obviously there's loss

12 of the demolition. We're here because of the

13 demolition of the majority of the cells.

14 Some adaptive reuse means you're not

15 preserving exactly things the way they were, but

16 it is an acceptable way to move into the future.

17 Our D.C. law specifically references it.

18 And I believe that the historic

19 preservation benefits of this project taken as a

20 whole do outweigh the preservation harms because

21 there is so much opportunity to understand this

22 site.

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1 When people drive by now people look

2 and say what is that. What is that. And if you

3 tell them what it is they don't understand

4 because it doesn't make sense to our modern

5 technology brains.

6 And this is an opportunity to explain

7 the water system of the city, the water system in

8 general. And I will talk about that in the

9 special merit aspects. That's what we're going

10 to be doing.

11 I would first like though just to

12 identify the comparable consistent with the act

13 projects.

14 There are many projects that have come

15 before the Mayor's Agent for consistent with the

16 act, not recently however, but in the past there

17 were, and many of them were like this one tied to

18 special merit as well as consistent with the act.

19 The Homer Building, the Bowen

20 Building, the Vigilant Firehouse and the Shoreham

21 Building are just four examples.

22 And I made a little chart here just to

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1 explain that, like the Shoreham Building, the

2 proposed reconstruction encouraged adaptation for

3 current use and the alterations were done to be

4 compatible with the historic district that the

5 building was in.

6 Homer, the proposed development would

7 provide the ability to bring new life to the

8 historic landmark. It's basically unused.

9 The Bowen Building provided an

10 opportunity to visually access the facades in a

11 way that reinforced their architectural

12 character.

13 This particular is on 14th Street and

14 it was not in good condition. The city was in

15 need of activation.

16 The Vigilant Firehouse was a very

17 interesting one because the issue was one of a

18 wall that was severely deteriorated beyond repair

19 and they needed to get permission to take that

20 wall down so they could permit the retention,

21 enhancement, restoration, and adaptation of the

22 current use.

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1 We see this and I'll just a couple of

2 other examples. When one might have in a

3 historic district that is unified you might have

4 buildings that interfere with the rest of the

5 project being brought back.

6 You might have a situation where there

7 is sections of the buildings that have collapsed

8 that need to be -- but that by removing them you

9 can in fact restore the rest consistent with the

10 act.

11 So now I'd like to discuss the second

12 issue which is what are the specific

13 architecture, land planning and community

14 benefits that individually or collectively make

15 this a project of special merit within the

16 meaning of D.C. Code 6-1102 Section 11.

17 So remind us what we're looking at

18 which is this project and that the definition

19 that it is a plan having significant benefits to

20 D.C. or the community by virtue of exemplary

21 architecture, specific features of land planning,

22 or social or other benefits having a high

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1 priority for community services.

2 I would say that this project meets

3 this. Both it has benefits to the District of

4 Columbia and to the community of all of these

5 aspects of the special merit law.

6 DR. BYRNE: All three.

7 MS. EIG: I believe so, yes. So, one

8 of the reasons that this is a project of special

9 merit is because it is such an extraordinarily

10 challenging project. I think the evidence that

11 we are here today supports that.

12 It was many years ago people in this

13 audience worked to try to help this -- we're

14 talking 20, 25 years ago or more -- to do

15 something with this site. The district bought

16 this in 1987. It is now 2017.

17 And this is the first project that's

18 been proposed that actually is feasible.

19 So the challenges. First I'll say

20 creating exemplary architecture with exemplary

21 community benefits. Doing both is hard. It's

22 very difficult.

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1 And I think the community building

2 that I have in my initial slide here tells this

3 story quite well because we are able to push it

4 down, to get underground and have this very

5 exceptional community building that is going to

6 provide a pool and amenity space for the

7 community. It does that while it will provide an

8 attractive magnet for people to come to the park

9 to walk through that southern portion of the site

10 and will be, we hope they will be inspired to

11 learn about the site because the cell, the

12 portion of cell 28 is right by it.

13 And they will have an understanding

14 that they are below the grade of the plinth. And

15 they will perhaps be inspired to walk onto the

16 other side and do things. So everything is tied

17 together with this exemplary architecture of this

18 master plan so that it makes you want to walk to

19 the next place, so that you're not just going

20 shopping, you're not just going to the park. You

21 are experiencing a full community.

22 Getting there was not easy. This

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1 particular project began in 2006-2007 and in many

2 forms to today and its collaboration.

3 First and foremost there is an

4 extremely diverse and multidisciplined team, the

5 professionals that have been working on here.

6 We have four developers. The District

7 of Columbia owns this site but it is also

8 essentially a developer of the park.

9 We have private developers who do

10 medical buildings, rowhouses, grocery retail as

11 well as multiple family.

12 And we have a landscape architect. We

13 have preservation. We have consulting engineers.

14 We have structural engineers. And we have four

15 architects. Four architectural firms.

16 And I will tell you that the original

17 designs that they came up from their buildings

18 were not coordinated, did not provide exemplary

19 architecture.

20 And it took a lot of effort to get

21 everybody to work together to understand the path

22 towards exemplary architecture.

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1 There was community involvement.

2 There have been more community meetings on this

3 project I think than any other project that has

4 come to the District of Columbia.

5 Years and years. There is not

6 agreement. Obviously we're here and there is a

7 group of people who are opposed to this project,

8 but there are many people who are in favor of

9 this project.

10 And it is important for us to

11 understand that this is a balancing act. I think

12 Matt has said not everyone will be happy, but

13 there is something of value to everyone in this

14 project.

15 There is also extreme regulatory

16 compliance. Because it requires demolition we're

17 at the Mayor's Agent. There is also the

18 comprehensive plan requirements, the Zoning

19 Commission. There is the Secretary of Interior

20 standards as part of the deed.

21 There was just code compliance. One

22 of the reasons that the cells are so challenging

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1 is meeting code is impossible to make those

2 active spaces.

3 The requirements of making all these

4 groups happy who have different goals has been an

5 extraordinary challenge.

6 The approach has been to create a

7 cohesive plan that celebrates this landmark.

8 That is what this is all about today.

9 We have to accommodate a variety of

10 uses. There are public parks and recreation, art

11 and education, community center and services, a

12 variety of housing, a variety of retail and

13 grocery, a medical office building which actually

14 there are three medical office buildings.

15 The park itself, you can see the

16 different uses that are taking place with access

17 and there people can walk on the park, they can

18 sit and there's going to be activities on the

19 park. There will be presentations. There's a

20 community pool. There's a playground.

21 There's just sitting and enjoying it.

22 There's going to be different uses within the

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1 regulator house and the sand bins. So there are

2 lots of uses just in that park alone. It is

3 activated. I think that's an understanding of

4 that word is that it is not just a grassy open

5 space. It is a destination.

6 To understand this cohesiveness we

7 need to understand the landmark. You saw this

8 slide before but it is really important. This

9 slide has been around for a long time and as I

10 keep reminding my team this is what this is

11 about. It's understanding how to make this all

12 come together so that you understand where you

13 are.

14 Matt's presentation of how the

15 architects took that to the next level with their

16 analysis of the different forms that were on the

17 space.

18 We also have the challenge of

19 connectivity. There was a suggestion early on by

20 a city official that we just turn it into the

21 city grid. Just put those original roads back

22 in.

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1 I was like no, the landmark, you have

2 to retain the landmark.

3 So how do you connect and retain the

4 landmark at the same time. That's the

5 consistency and the special merit in my mind.

6 Because we didn't have to do that. We

7 could have just decided that that landmark just

8 stays there and there's no connection to the

9 city. You can walk on it, perhaps we could do

10 that, but it would not be the ability to actually

11 connect and attract people to walk onto it,

12 having pedestrian as well as vehicular access on

13 all sides of the site.

14 It's being compatible with the

15 adjacent neighborhoods. There was once a call

16 for the plinth to be removed and for rowhouses to

17 be along Channing Street that would mimic what

18 was on Channing Street's southern side.

19 But the plinth would be gone. And we

20 had rowhouses. Rowhouses were there for a long

21 time and it was very difficult to get everyone to

22 understand that the plinth was critical to

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1 reading the landmark.

2 And that rowhouses -- we didn't want

3 rowhouses to be way above everyone else looking

4 down. So that moved -- it sort of forced the

5 idea, well let's move the rowhouses into the site

6 more.

7 The concept of themes that Matt talked

8 about I did not put on my slide here, but I think

9 that they were very important in the creation of

10 the design guidelines because we looked at

11 materials, we looked at colors, and we looked at

12 forms to have an understanding of once again what

13 would be compatible, what would enhance the

14 materials that are there.

15 Is it all brick? Is it all concrete?

16 It wasn't so simple as a resolution.

17 You just put D.C. street trees around

18 the edge just like every other block? No, we're

19 going to use the Olmstead Walk so we have a

20 special place.

21 The issue of exemplary architecture as

22 I alluded to earlier, it was not easy to get

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1 architects to understand that they had to

2 coordinate together. In all due respect to the

3 architects who are here they have a mission to

4 present their own aesthetic, their own idea and

5 they finally got it.

6 It was a wonderful day when everyone

7 sort of realized we can be unique while we are

8 compatible with each other. And I think that's

9 what's particularly special about this.

10 This is not one architect coming in

11 and designing a whole. It is not something where

12 one building is here and then five years later

13 another building comes up, and five years later

14 another one comes.

15 This is all taking place within this

16 plan. And the idea of dealing with medical

17 office buildings, housing, multifamily housing,

18 individual family housing, parks, and dealing

19 with these adaptive reuses, very difficult but

20 accomplished. A successful exemplary effort.

21 We also have a need to educate the

22 community and visitors. That is one of our

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1 approaches to that. And this slide you can see,

2 this is just one of the things that shows the

3 different types of placards that will be around

4 that provide community history, that provide sand

5 engineering history, that science and public

6 health.

7 This is part of the package that was

8 supported and approved by the Historic

9 Preservation Review Board after our last Mayor's

10 Agent hearing.

11 It includes specific historical

12 components such as a walking museum where

13 literally there will be an iPhone kind of thing,

14 smartphones that has an app that you'll be able

15 to go to certain sites and learn history that

16 way.

17 They will also be within the

18 resources. There will be informational

19 discussions, exhibits, chronology.

20 There will be passive experiences,

21 being able to walk along the Olmstead Walk and

22 look over to the reservoir will be an

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1 extraordinary experience to have that happen.

2 And to continue and look over. I have

3 kidded many times I would love one of the

4 apartments so I can just look over at the

5 reservoir. I think it will be an amazing view.

6 The opportunities from a passive

7 experience. But there's also the active

8 experiences. Not just the walking museum, but

9 I'm going to particularly point out cell 28.

10 We have not talked a lot about cell 28

11 but it is perceived to be something that will be

12 -- that is part of the cell. It will be open on

13 one side and I think you can see an image on the

14 upper lefthand corner that you can actually

15 you'll be looking into the cell as you walk from

16 North Capitol Street.

17 And you can get close. And there will

18 be some kind of -- probably a glass partition.

19 But there will be exhibits that explain what

20 you're looking at. You will see historic

21 drawings there. We hope the opportunity will be

22 possible for us to have regular tours under

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1 certain controls.

2 And you can see in the lower lefthand

3 side you can just enjoy it as well. There will

4 be hardscape that will allow people to gather.

5 And also when we have access to cell

6 14 which D.C. Water is supposed to return as

7 they've got it. So that is their commitment,

8 that it will be as it is so that we will be able

9 to have access into that once again under

10 controlled circumstances with a structural

11 overlay that has been described.

12 And so that this concept of museum is

13 taken to a level that is beyond just walking

14 around a gallery. This is an experiential museum

15 that we will have.

16 We will also have public art. And

17 this just shows some of the examples using the

18 sand bed, exterior light projections, applied art

19 sculpture.

20 We've also talked about using parts.

21 The manhole covers could become a sculpture. The

22 pipes and things could be used in different ways.

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1 We are using the sand washers. In

2 some places they are shown just as they were, but

3 other places they can be planted with flowers.

4 In other places they might be deconstructed in

5 such a way to make a piece of art.

6 The opportunity there to have art as

7 learning of what's there. And clearly the themes

8 of water and health will be very much a part of

9 that.

10 So, do I think that these specific

11 architecture land planning and community benefits

12 make this a project of special merit?

13 Absolutely.

14 It's a comprehensive coordinated plan.

15 It has significant benefits to District of

16 Columbia as well as the community.

17 This will not just be a neighborhood.

18 This will be a destination place. People will

19 come here to see it. It will be very special.

20 The park will be very special.

21 It will have social benefits as land

22 planning. And the many benefits that I have not

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1 talked about that are beyond art and

2 architecture, social, but into the kinds of

3 things like health and planning we will talk

4 about soon.

5 But I believe just on what I've shown

6 you alone this is a project of special merit.

7 I do think it's comparable. I'd like

8 to show that again. We've got the Corcoran

9 Gallery of Art, the Phillips, the NPR building,

10 the Homer building, Arena Stage.

11 And what's interesting is that in each

12 case these are all the product of a single firm

13 or person. Bing Thom did Arena Stage. His firm

14 did that.

15 The challenge of the multiple

16 architects was not there. This was very much --

17 they have an owner, one owner. We have four.

18 And they are all providing both

19 exemplary architecture as well as land planning,

20 or economic benefits, or a balance of all the

21 benefits. They're all very special projects.

22 I'd like to talk about two of them a

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1 little more because I think that they help

2 elucidate the issue of when you have some parts

3 of what was the landmark and you don't have all

4 of it because you're introducing something new.

5 1111 North Capitol Street is now NPR.

6 And it was in front of you. There is a portion

7 of the building which you see in the upper right-

8 hand slide you can see the warehouse building and

9 on the lefthand side you can see it was

10 continuous columns. Every floor was the same.

11 It was just a warehouse building.

12 The lower right-hand, this is

13 approximately how much of it was removed. It's

14 actually a little more than that shows was

15 removed, and then a new addition on the upper

16 right-hand side was visible there. And it

17 actually collapsed and came around to the L

18 Street side.

19 So the North Capitol Street side was

20 intact, but the -- you can see the slide, and on

21 the bottom slide you can see how it integrated

22 the old and new came together where we have a two

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1 story section with two one story sections with

2 their columns. So that when you're in the

3 building you can experience what was old and what

4 is new.

5 Arena Stage is fascinating because on

6 the left is the original landmark. It was a very

7 early designation of a building.

8 And they found that their needs had

9 changed as Arena has grown dramatically from a

10 small regional to a very significant regional

11 theater.

12 And they took the Arena Stage itself,

13 the original building which is on the lefthand

14 side, and the stage of the Krieger, not its seats

15 and not the lobby, and they wrapped it in this

16 large glass building that has this very dramatic

17 roof.

18 So you can walk into the current what

19 we call Arena Stage and see what they call the

20 Fichandler Stage which is the original part. And

21 you can go into the stage that's the Krieger and

22 you can see the original stage.

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1 So it did not retain by any means, not

2 as much as we're retaining proportionally, but it

3 retained what was important and allowed this very

4 exciting building to happen which has been an

5 incredible draw for the Southwest and when the

6 wharf project is done will be part of that entire

7 experience of an area that had been long

8 unappreciated. The wharf never got to be what it

9 was intended to be. And now will be a very

10 exciting space.

11 I also was asked to speak about

12 offsite benefits. I was involved with 600

13 Massachusetts Avenue which on the lefthand side

14 upper is the Massachusetts Avenue facade of this

15 large glass building. On the right upper side is

16 the Eye Street side that includes the little

17 buildings that were preserved.

18 But on the bottom screen on the

19 lefthand side is the small church that was

20 covered in formstone. And this project provided

21 the benefit offsite to remove the formstone and

22 in the process we actually discovered that what

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1 had been I think it was a Baptist church had been

2 a synagogue, but before that it had been a

3 Presbyterian church.

4 And it turned out that the

5 Presbyterian church was designed by Thomas Walter

6 when he was in Washington designing the Capitol

7 Dome and the Presbyterian congregation went to

8 him and asked him to provide a design which he

9 did. And it was not known before this effort.

10 Another is the project at 2234-2238

11 Martin Luther King Boulevard, the Big K

12 development where buildings were moved off to a

13 different site to allow this to happen, and

14 fitting them into the neighborhood so that they

15 could continue.

16 So lastly I'd like to just talk about

17 the subdivision and whether it's necessary to

18 obtain the special merit benefits identified.

19 I have participated in a few

20 subdivision cases. Subdivision is very important

21 because it changes the way our cities are

22 organized.

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1 And we know that this site in 1894 was

2 subdivided. And we know nothing was ever done.

3 It was never built upon. And we know that in

4 1901 when the United States took the private land

5 over they were not required to change -- so they

6 had no subdivision requirements. They just

7 overlaid the new project on top of the existing

8 paper streets. And that has been how it has been

9 all these years.

10 So, today we could not build the

11 McMillan plant nor can we build the project of

12 special merit because we need to subdivide and

13 get rid of the old subdivision and put in a new

14 subdivision that allows the project to proceed.

15 So it's fairly simple in terms of --

16 it's very unusual that we have a situation where

17 we have subdivisions that have been ignored for

18 100 years. But this is I think pretty obvious

19 that it's necessary for the special merit project

20 to happen.

21 So, in conclusion I think that it is

22 my opinion that this project is consistent with

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1 the act, that it is a project that needs the

2 subdivision to allow it to happen.

3 And most importantly that it achieves

4 special merit in all three categories of

5 exemplary architecture, land use planning, and

6 community benefits. Thank you.

7 MS. BROWN: I just have some quick

8 follow-up questions and I'm clearly very bad at

9 estimating time so I don't know if this would be

10 the good place to break after we do the

11 questions.

12 So Ms. Eig, in discussing the

13 consistent with the purposes of the act what

14 factors do you take into consideration about the

15 existing condition of the building or the

16 features? We have the unstable cells and whether

17 they're visible. How does that factor into the

18 relative preservation harms and benefits?

19 MS. EIG: Well, as I said in the early

20 part of the presentation we did a study of the

21 relative level of significance and we did that

22 based on the three criteria.

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1 And as a result of that obviously

2 they're very important to the concept of water.

3 They're not as important relatively speaking to

4 the concept of the public because the public did

5 not see those cells. That is a phenomenon of

6 recent time where they collapsed and people have

7 gotten onto the site. But they were not publicly

8 -- the cells themselves were not publicly

9 accessible. And so they were given less of a

10 level of significance.

11 MS. BROWN: And so that helps. Are

12 these -- you had a slide of the level at North

13 Capitol with the interior features of the

14 columns. Do you equate the interior elements --

15 MS. EIG: Yes, I understand. As I

16 said, the warehouse had -- every floor was

17 exactly the same. There was a small office in

18 the front and that was it.

19 And so retaining all of the eight

20 rows, lots of square footage of these cells -- of

21 the -- I'm sorry, the columns in these spaces was

22 not necessary to understand the character of the

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1 building.

2 And similarly, for us to understand

3 what a cell looks like it is not necessary to

4 save all 20 cells. We can see one cell and that

5 cell tells us the story. And we're going to have

6 one cell that we hope will have access, and one

7 cell that we will as part of this project early

8 on be able to look into and understand.

9 MS. BROWN: And when we talk about the

10 amount of demolition on this site do you have to

11 take into consideration the entire landmark? So

12 if you were to say in what percentage is being

13 demolished it wouldn't just be on this 25 acre

14 site.

15 MS. EIG: No. The test is the

16 landmark. It is not this chunk of the site that

17 we've pulled out.

18 MS. BROWN: And with the -- you

19 mentioned in your earlier discussion the

20 difference between the resources and it's really

21 a component.

22 And when you demolish a cell that

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1 would include all four walls of it.

2 MS. EIG: And it's actually -- the

3 cell is a box and it has an opening in the box

4 that has been flipped up which is your portal,

5 and the wall creates the retaining wall for the

6 concrete ceiling.

7 So we really have more than -- a

8 component of that cell is the portal wall, but it

9 is part of the cell. And so therefore it's not

10 freestanding, it's actually a retaining wall, the

11 side of that. So it is a component.

12 MS. BROWN: And getting back to the

13 1111 North Capitol example that building was not

14 designated for its interior, was it?

15 MS. EIG: No.

16 MS. BROWN: And do you know if the

17 cells are -- the interior of the cells are

18 designated as part of the landmark?

19 MS. EIG: That is not my reading of

20 the landmark.

21 MS. BROWN: Let me see if there's

22 anything else I have. Those are all my

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1 questions.

2 DR. BYRNE: Okay. All right. So,

3 time for a break. I'm wondering how long to

4 take. Forty-five minutes?

5 MS. BROWN: Yes, my witnesses

6 corrected me and they told me that I think we

7 probably have 40, 45, yes.

8 DR. BYRNE: I'm saying how long to

9 take a break.

10 MS. BROWN: Oh yes, 45 for lunch too.

11 DR. BYRNE: Is that agreeable?

12 MS. FERSTER: We're agreeable to that.

13 I do have a question though and that is that

14 during the course of these sort of speedy

15 presentations the slides go by pretty quickly.

16 Would it be possible for you to provide printed

17 copies of the slides after the break.

18 MS. BROWN: We have copies that we

19 were going to hand in after the testimony, yes.

20 MS. FERSTER: Can we have them now?

21 MS. BROWN: We were going to hand them

22 in after the testimony.

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1 MS. FERSTER: It would be helpful

2 because in order to be able to ask questions I

3 can't remember what's --

4 (Simultaneous speaking)

5 MS. FERSTER: Okay. Thank you.

6 MR. OTTEN: Mr. Byrne, just a

7 procedural question in terms of our D.C. for

8 Reasonable Development submittal documents.

9 We have them on a USB stick. We were

10 going to email them but the files are big. So we

11 could submit that.

12 DR. BYRNE: So you want to just hand

13 me the stick?

14 MR. OTTEN: I could do that.

15 DR. BYRNE: I mean, I'm waiting --

16 MR. OTTEN: Yes, I could -- I mean, I

17 could email them to you but I'd prefer to just

18 give you --

19 DR. BYRNE: They really need to go to

20 everybody, all the parties.

21 MR. OTTEN: Yes, that's not a problem.

22 DR. BYRNE: So email them to all the

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1 parties. That would be good. So 1:23. Be back

2 here at 10 after 2, does that sound right?

3 (Whereupon, the above-entitled matter

4 went off the record at 1:26 p.m. and resumed at

5 2:13 p.m.)

6 DR. BYRNE: Well, it's 2:10. We're

7 ready to proceed.

8 MS. BROWN: Yes, we're ready. Our

9 next witness is Mr. Adam Weers from the Trammel

10 Crow Company. He will speak on the special merit

11 of the healthcare facility and other features of

12 the project.

13 MR. WEERS: Good afternoon, Mr. Byrne.

14 My name is Adam Weers. I am a principal with

15 Trammel Crow Company. We are the developer of

16 the healthcare component at McMillan.

17 I'd like to start today by responding

18 to remand issue number two and sharing some

19 information about the special merit features of

20 the healthcare facilities individually as a

21 linchpin for our entire proposal.

22 As you are aware the court asked for

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1 clarification on the finding that the healthcare

2 component only contributes to the special merit

3 of the project in connection with the adjacent

4 hospitals, and is a part of an overall medical

5 district.

6 The first part of my testimony today

7 will be focused on several attributes of the

8 healthcare facilities that are worthy of

9 consideration as special merit features by

10 themselves.

11 The healthcare component which

12 comprises half the development program at

13 McMillan provides much needed services for

14 district residents, a unique and innovative

15 workforce development program to connect district

16 residents to the 3,200 permanent jobs created and

17 provides the critical boost to the daytime

18 population of McMillan which is directly tied to

19 our project's ability to deliver the community

20 serving retail and grocery uses demanded by the

21 community.

22 Far from a typical office complex, the

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1 healthcare portion of this project directly

2 addresses community and district priorities, and

3 is deserving of special merit designation as an

4 individual component of the project by itself.

5 The work that is performed inside the

6 walls of these facilities will literally save the

7 lives of people in our city, adults and children

8 alike.

9 These will not be lawyer's offices or

10 consulting shops, but outpatient facilities,

11 imaging rooms, and research labs creating

12 innovative new treatments, ideas, and cures.

13 This industry is hugely important to

14 the district both in terms of the care that is

15 delivered that all of us are in need of, but also

16 in terms of positioning our city for a future

17 less reliant upon the traditional industries that

18 have fueled our economy.

19 Simply put, healthcare is a

20 dramatically different offering from a general

21 office use and is in fact one of the most

22 impactful commercial uses that could possibly be

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1 developed at McMillan.

2 The healthcare portion of McMillan is

3 also worthy of special merit consideration as it

4 is a sorely needed addition to the city's aging

5 healthcare infrastructure.

6 The district's healthcare facilities

7 are on average the second oldest in the nation

8 much of which is owed to the infrequency with

9 which new healthcare facilities are built in our

10 city.

11 Indeed the district has not seen a

12 major new healthcare development completed in 15

13 years when GW Hospital delivered in 2002.

14 While our buildings are built slowly

15 the district's population is rising rapidly with

16 some 100,000 people moving in over the same 15-

17 year period. This places even more demand on the

18 existing healthcare facilities throughout the

19 city.

20 These two factors, lack of new supply

21 and a rapidly growing population have led the

22 district to be ranked last in terms of healthcare

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1 facilities per capita among all major

2 metropolitan areas in the nation.

3 Given this backdrop, having 50 percent

4 of the program devoted to healthcare uses means

5 McMillan presents a truly unique development

6 offering rarely seen in the district.

7 Aging and obsolete healthcare

8 infrastructure has serious ramifications both

9 from the delivery of care and from the cost of

10 care in our city, a significant portion of which

11 is paid for through publicly funded Medicare and

12 Medicaid programs.

13 The addition of such a significant

14 amount of new state of the art healthcare

15 facilities provides a tremendous benefit not only

16 to the direct participants in this project but to

17 the district as a whole.

18 Locating McMillan directly adjacent to

19 the Washington Hospital Center campus perfectly

20 positions us to help address these systemic

21 issues.

22 As healthcare real estate in the

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1 district places high value on adjacency to

2 existing hospitals.

3 The circles on this map represent the

4 concentrations of healthcare buildings throughout

5 the city and a large yellow star represents the

6 3.5 million square feet of hospitals next to

7 McMillan.

8 This adjacency offers a unique

9 opportunity for these systems to modernize

10 significant portions of their operations by

11 expanding across the street and repurposing the

12 newly freed up space on their existing campus.

13 All four of the existing hospital

14 systems at the Washington Hospital Center campus

15 are extremely successful and often struggle with

16 demand levels that cause them to operate beyond

17 100 percent capacity of their existing buildings

18 placing an increasing burden on facilities that

19 are in some cases reaching obsolescence.

20 The need for modernization,

21 repurposing and expansion among these users is

22 pressing and immediate, and McMillan is the only

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1 development parcel available adjacent to their

2 campus which can reasonably address this level of

3 space need.

4 In designing the parcel buildings our

5 team embraced forward thinking smart growth

6 principles, thereby abandoning the historic

7 formula for big healthcare which was to place

8 massive sprawling complexes on very large land

9 parcels, a phenomenon seen locally at United

10 Medical Center and Providence Hospital.

11 Modern healthcare design incorporates

12 smart growth principles like taller buildings,

13 vertical integration, smaller footprints,

14 underground parking, and mixed use environments

15 with rich amenity bases and open green public

16 spaces.

17 These features are not easy to

18 accomplish and they come with significant cost.

19 But successfully implementing them can help a

20 healthcare system deliver better care, enhance

21 the patient experience, and attract the best and

22 brightest human capital.

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1 In pursuing these principles at

2 McMillan parcel one is squeezing nearly 800,000

3 square feet of density into less than 4 acres.

4 In addition, the building

5 configuration was directly influenced by the site

6 context and by community input.

7 We pushed our building back from North

8 Capitol Street as a response to the Stronghold

9 neighborhood creating a 260 foot buffer.

10 This buffer allowed an acre of new

11 park space and the preservation of cell 14.

12 We pushed our building away from the

13 north service court to more appropriately relate

14 the buildings to the historic assets preserved

15 within this key element of the plan.

16 The creation of the healing gardens

17 came directly from a community request to shrink

18 the building footprint in order to make room for

19 additional green space.

20 This move also added to our

21 preservation program and enhanced our ability to

22 reenvision the Olmstead Walk's most prominent

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1 section.

2 And lastly, the parcel one buildings

3 were shortened by 15 feet and moved again to

4 maintain the historic view corridors of the

5 adjacent Armed Forces Retirement Home site.

6 The healthcare component of McMillan

7 is the economic driver of the development program

8 and is also responsible for the majority of the

9 developer contributions to the community benefits

10 agreement VMP developed with ANC 5E which totals

11 more than $5 million of combined benefits and

12 mitigation efforts directly flowing to the

13 adjacent communities.

14 This CBA, one of the most significant

15 agreements ever incorporated into a district PUD

16 was agreed to by the ANC and the development team

17 in 2014 but has been forced to sit idle for the

18 past three years.

19 Agreeing to a CBA of this magnitude is

20 only accomplished through buy-in and consensus,

21 and at McMillan this took a tremendous amount of

22 effort.

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1 The CBA was a culmination of a years

2 long community engagement process involving more

3 than 200 public meetings between the development

4 team and community members.

5 It is critical to note that this

6 project's ability to provide such a substantial

7 and comprehensive package of benefits is directly

8 tied to the level of development included in our

9 plan.

10 To remove or reduce the development at

11 McMillan would directly impact our CBA and undo

12 the agreement all parties worked so hard to

13 achieve.

14 One of the most significant components

15 of the CBA is the $1 million in scholarships and

16 grants directed at our workforce development

17 strategy, Opportunity McMillan.

18 Through this innovative new plan VMP

19 has partnered with the community foundation, a

20 national leader in the workforce development

21 sphere to invest this $1 million and help us

22 ensure that district residents get access to the

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1 education and job training necessary to plug them

2 into the jobs McMillan creates.

3 This extensive workforce development

4 strategy was crafted to have a particular focus

5 on the thousands of permanent healthcare jobs

6 which McMillan will create which makes this one

7 of the most innovative and ambitious workforce

8 development initiatives in the country.

9 Opportunity McMillan has two main

10 pillars both of which are worthy of special merit

11 designation.

12 First, a $1 million contribution

13 distributed as scholarships to residents and

14 grants for workforce development organizations

15 all designed to help Ward 5 and district

16 residents pursue education and career

17 opportunities related to McMillan and careers in

18 health and life sciences.

19 And second, VMP will build the

20 Washington Center for Health Careers, a permanent

21 job training center to house this initiative

22 within the parcel one healthcare facilities.

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1 McMillan's workforce development

2 strategy will be based on the needs of local

3 residents and the project's future tenants, and

4 will initially focus on entry-level and middle-

5 skill opportunities.

6 By focusing on the entry-level

7 opportunities residents with limited recent

8 employment or barriers to employment can still

9 gain work experience and connect to career

10 pathways leading to family sustaining careers.

11 Middle skill opportunities by contrast

12 are jobs that require more than a high school

13 diploma but less than a four year college degree,

14 yet still provide workers with family sustaining

15 incomes and opportunities for advancement.

16 Ultimately this training is designed

17 to connect all workers to career pathways that

18 allow for continued advancement, additional

19 training, and valuable work experience.

20 The community foundation has extensive

21 experience in this arena and has implemented

22 similar programs in the past with some of the

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1 employers currently located at the Washington

2 Hospital Center like Children's National Medical

3 Center and Medstar.

4 Thus our strategy is based on proven

5 models and a past record of success.

6 In summary, there are numerous reasons

7 why the healthcare component of McMillan is

8 worthy of special merit consideration on its own

9 and independent of its inclusion in a medical

10 district.

11 First, the district is significantly

12 undersupplied in terms of healthcare facilities

13 per capita. We are a growing city and an aging

14 city, and we have an existing base of healthcare

15 infrastructure that is among the oldest in the

16 country.

17 Aging and obsolete healthcare

18 infrastructure has serious ramifications for both

19 the delivery of care and for the cost of care in

20 our city, a significant portion of which is paid

21 for through the publicly funded Medicare and

22 Medicaid programs.

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1 New healthcare facilities provide a

2 uniquely beneficial use that serves not only the

3 direct participants of the development project

4 but the public as a whole.

5 Second, the specific location of this

6 site and its adjacency to the largest

7 concentration of hospital users in the region

8 makes it incredibly special.

9 The users of Washington Hospital

10 Center are operating above capacity and

11 desperately need to expand.

12 From their perspective McMillan is the

13 most unique development site in the district as

14 it provides the potential for adjacent

15 development no other site can offer.

16 Third, the design of the parcel one

17 buildings themselves is a departure from

18 traditional healthcare design and represents a

19 forward thinking vertically integrated smart

20 growth approach to healthcare development.

21 This approach allows the McMillan

22 facilities to embrace and directly integrate the

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1 network of open green public spaces and historic

2 assets which the master plan has thoughtfully

3 interspersed throughout the site.

4 Fourth, McMillan provides one of the

5 most substantial CBA agreements ever seen in a

6 district PUD with $5 million in proffers and

7 mitigation efforts directly benefitting the

8 surrounding communities.

9 And fifth, there is nothing typical

10 about the $1 million investment VMP is making in

11 scholarships and grants to local residents and

12 workforce development organizations.

13 These resources will help prepare

14 district residents for the healthcare focused

15 jobs across a wide spectrum of career

16 opportunities from entry level to middle skill to

17 advanced positions, something that truly sets

18 this strategy apart from other workforce

19 programs.

20 This initiative developed in

21 conjunction with experts like the Community

22 Foundation is truly unique and will serve as a

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1 national model.

2 Next I'd like to share some thoughts

3 in response to remand issues number three and

4 four, and that the proposed demolition is

5 necessary to obtain this significant level of

6 special merit benefits that I have just

7 highlighted and that there are no reasonable

8 economically viable alternatives that would

9 reduce the need for demolition and achieve the

10 same level of special merit benefits.

11 To highlight this I point to the

12 ramifications of saving some additional

13 underground cells on parcel one.

14 This slide shows the footprint of the

15 buildings on parcel one overlaid with the

16 location of the underground cells.

17 Saving an additional cell would impact

18 the footprint of the building dramatically and

19 cause such a reduction that the proposed facility

20 could no longer be feasibly developed and the

21 entire development plan for parcel one would

22 collapse.

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1 By way of example if cell number 13

2 were preserved it would impact more than half of

3 the footprint of the 8 story eastern tower of the

4 parcel one facility as well as the five level

5 underground garage.

6 The integration of this facility above

7 and below grade within this site was an

8 incredibly difficult process given the number of

9 fixed components within parcel one which must be

10 accounted for, including the location of Half

11 Street, the north service court, the Olmstead

12 Walk, and the numerous points of access and

13 circulation required to service a facility of

14 this size.

15 The removal of an additional acre of

16 land from parcel one is an adjustment so

17 significant there are no reconfiguration options

18 available that would result in a reasonably

19 designed facility on this site which could still

20 meet the circulation, parking, access, and design

21 requirements necessary to make it financible and

22 leasable.

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1 Rather than reconfiguration the

2 preservation of cell number 13 would result in

3 the loss of the entire eastern tower, or

4 approximately 400,000 square feet of the current

5 parcel one density.

6 A 50 percent reduction in the parcel

7 one density from our original filing is a blow so

8 severe the healthcare program would no longer be

9 economically feasible.

10 TCC is the largest commercial

11 developer in the country today as well as the

12 largest healthcare developer in the country and

13 as such our team has significant experience and

14 expertise necessary to execute this healthcare

15 strategy at McMillan.

16 We have a strong track record of

17 completing similarly large and complex healthcare

18 developments across the country.

19 As with many of these other large

20 development projects the economic viability of

21 the healthcare program at McMillan is dependent

22 upon scale and a critical mass in order to house

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1 a program with a range of different healthcare

2 uses and users as well as a balance of large

3 anchor tenants and small to mid-sized

4 organizations.

5 To lose 50 percent of the parcel one

6 density makes this user mix impossible and would

7 render the entire healthcare strategy for

8 McMillan infeasible.

9 Indeed, it would remove the commercial

10 component of McMillan from the development

11 program entirely for several reasons.

12 First, outside of our vision for a

13 large-scale healthcare campus at McMillan there

14 are no other viable healthcare development

15 options of any significant size.

16 This slide shows all off campus

17 healthcare real estate in our region. And I

18 would note that the entire off campus healthcare

19 real estate market in the District of Columbia is

20 actually quite small with only 1.3 million square

21 feet. That is the entire market of the District

22 of Columbia and the single largest off campus

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1 healthcare building ever developed in this city

2 is 160,000 square feet. One hundred and sixty

3 thousand square feet.

4 The point here is if you do not pursue

5 the vision that we have laid out, one of scale

6 and critical mass, one involving a combination of

7 large anchor tenants and small to mid-size

8 organizations, the market shows us that the

9 alternative is something less than one-fifth of

10 the size of our current program.

11 Even if such a reduced program were

12 economically feasible it would clearly mean a

13 reduced level of special merit features.

14 One-fifth of the development means

15 one-fifth of the jobs and one-fifth of the

16 healthcare services, and one-fifth of the

17 economic impact that McMillan is currently poised

18 to provide.

19 Second, outside of the healthcare

20 sphere there is no viable commercial office

21 market at McMillan. The commercial office market

22 in the District of Columbia has struggled for

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1 some time as illustrated in this slide which

2 highlights the building deliveries, leasing

3 absorption, and vacancy rate in the general

4 office market in the district over the past

5 decade.

6 Vacancy rates across this city have

7 risen to their highest level since the early

8 nineties creating a cutthroat environment between

9 office submarkets trying to attract tenants.

10 Outside of the healthcare universe

11 McMillan simply does not have the types of

12 amenities and advantages that office tenants

13 desire, and we could not compete or survive in

14 such a challenging general office environment.

15 And lastly, there is a direct tie

16 between the healthcare component and all other

17 components of this plan.

18 If the large-scale healthcare

19 component is removed you take away the daytime

20 population that the grocery anchor requires in

21 order to pursue this project.

22 If you lose the Harris Teeter grocery

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1 you remove 50 percent of the retail program. In

2 addition, the commercial component is the

3 economic engine of this project providing two-

4 thirds of the tax revenues, land value and jobs

5 that McMillan generates.

6 This value is the fuel for the many

7 benefits included in this plan. The community

8 center, the parks, the preservation assets as

9 well as the $5 million CBA.

10 In summary, the proposed demolition is

11 necessary to attain this significant level of

12 special merit benefits and there are no

13 reasonable alternatives that would reduce the

14 need for demolition and achieve this same level

15 of special merit benefit.

16 The preservation of additional

17 underground cells in parcel one would cause such

18 a dramatic impact to the above and below grade

19 portions of the healthcare facility that it would

20 eliminate the entire eastern tower.

21 The loss of 50 percent of the parcel

22 one density leads to a loss of the entire

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1 healthcare component of the McMillan development

2 program, and a loss of the healthcare component

3 means a loss of the daytime population necessary

4 to sustain the Harris Teeter grocer anchor which

5 is 50 percent of the retail program.

6 The development program is

7 inextricably tied to the benefits in the plan and

8 removing a material portion of the development

9 makes attaining the project's other numerous

10 benefits impossible.

11 The density included in the plan,

12 especially the healthcare use, is the linchpin

13 for everything including the grocery anchor

14 retail program.

15 It is the straw that stirs the drink

16 and this fact along with the other numerous

17 benefits I have highlighted today clearly show

18 that the healthcare use is worthy of a special

19 merit designation on its own.

20 Furthermore the development of a large

21 amount of state of the art healthcare facilities

22 is of vital importance to the future of the

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1 district's healthcare infrastructure and the

2 ability of our city to continue to grow and

3 thrive.

4 This concludes my testimony. I thank

5 you for your time and look forward to answering

6 any questions you have.

7 DR. BYRNE: Thank you.

8 MS. BROWN: I just have one or two

9 follow-up questions. Mr. Weers, you referred to

10 TCC as having some expertise in healthcare. TCC

11 is the Trammel Crow Company.

12 MR. WEERS: Yes, ma'am.

13 MS. BROWN: And who else in the

14 country is doing this much healthcare facility

15 development?

16 MR. WEERS: We are certainly the

17 largest healthcare developer in the country. My

18 firm Trammel Crow Company, we've been involved in

19 healthcare development since the late nineties.

20 Started doing services and providing real estate

21 expertise to hospitals and healthcare systems.

22 And most of what we do now is system-

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1 based. And since that time we have developed

2 roughly $3.5 billion worth of healthcare

3 development across the country. It's about 15

4 million square feet total.

5 In that we have built 30 hospitals, 80

6 ambulatory and outpatient facilities, and our

7 current pipeline and in process healthcare

8 development only is 4 million square feet, about

9 $2.3 billion.

10 MS. BROWN: Those are all my further

11 questions.

12 DR. BYRNE: So I'm trying to just get

13 a better sense of the healthcare facility and

14 what kinds of services will be provided in it.

15 If this case involved the construction

16 of a hospital let's say I think it's the kind of

17 thing that might be more obviously a special

18 merit type project if there was community need.

19 But this is something different. And

20 I guess I'd ask you to tell me more about the

21 kinds of services that would be provided here and

22 why this is what you'd be doing instead of a new

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1 hospital facility.

2 MR. WEERS: So, I would describe the

3 range of services that we will see inside of the

4 facilities as you could go from outpatient

5 services on one end of that to administrative on

6 the far other end and everything in between.

7 And so I would say some of the

8 specific things that you might see being done,

9 the care being delivered inside of that, even if

10 you just stick within the outpatient facilities

11 category could be clinical uses.

12 So exam rooms, therapy suites,

13 oncology, cancer. Think big like proton knife,

14 gamma knife machines. Imaging like MRIs,

15 mammography.

16 The kinds of things I think that you

17 would think about as being delivered in a quote

18 unquote "hospital building" which is actually a

19 combination of both inpatient and outpatient

20 services.

21 And so what I think we're going to see

22 primarily as the use in this building is the

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1 picking up of some of the existing outpatient

2 services, the moving of them across the street to

3 McMillan to deliver the healthcare at McMillan,

4 and then the replacement of that space on campus

5 with additional inpatient facilities which are

6 probably more heavy like hospital uses.

7 So no, we are not developing a

8 hospital, but yes, the uses inside the building

9 are very much still going to be care delivery.

10 DR. BYRNE: To what extent are the

11 entities that operate on the Washington Hospital

12 Center campus going to be -- do you anticipate

13 how likely is it that they would be significant

14 tenants of the project.

15 MR. WEERS: So if I do my job right it

16 will be very likely. We have been in

17 conversations and negotiations with the folks

18 across the street literally for years, since

19 about 2009. And we are working very hard to have

20 them be the anchor tenants at McMillan.

21 It makes all the sense in the world.

22 It is a very complicated and complex transaction

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1 and to be totally honest the start and stop, on

2 again off again nature of what we have been going

3 through has made our tenant negotiations

4 extremely challenging.

5 That being said I think it is a very

6 high probability that that's where our anchor

7 tenants are coming from.

8 DR. BYRNE: Thank you. Okay, good.

9 MS. BROWN: Our next witness is Mr.

10 Len Bogorad. He was previously qualified as an

11 expert in fiscal -- make sure I get it correctly

12 -- fiscal impact analysis. And I have his

13 resume, actually I have his written testimony

14 that I'll hand to you.

15 DR. BYRNE: Sir, are you with Street

16 Sense?

17 MS. BROWN: No, I'm sorry, he's with

18 RCL Co., and he's an expert in fiscal impact

19 analysis.

20 DR. BYRNE: Okay. And he got

21 qualified in the first hearing.

22 MS. BROWN: He did. And his testimony

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1 was very limited because I didn't know that you

2 were not this interested in this, but we are

3 tailoring it to the big picture of how this

4 individual healthcare facility itself drives the

5 engine.

6 DR. BYRNE: I didn't know I was that

7 interested in it until the court of appeals told

8 me.

9 MR. BOGORAD: Good afternoon,

10 Professor Byrne.

11 As you just heard I won't repeat my

12 previous testimony that's already in the record

13 which regarded the economic and fiscal impact of

14 McMillan as a whole.

15 But hearing the D.C. Court of Appeals

16 stated that they thought at least more clarity

17 was needed with respect to the relevance of the

18 planned healthcare facility to the question of

19 whether the project has special merit I'm

20 addressing in 15 minutes today the connection

21 between economic and fiscal impact on the

22 healthcare facility specifically.

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1 In order to analyze this I first once

2 again reviewed the analysis originally conducted

3 by Green Door Advisors and the updated

4 development program as of 2014.

5 And I conclude that over a 30-year

6 period the entire project will generate

7 exceptional benefits to the district budget,

8 $1.183 billion in district revenues and a net

9 fiscal benefit to the district after taking

10 account of expenditures of $874 million.

11 And I also concluded that the planned

12 development would generate approximately 3,000

13 construction jobs on an annual full-time

14 equivalent basis and approximately 4,400

15 permanent employees.

16 So I then proceeded in response to the

17 court's decision to specifically analyze the

18 economic and fiscal impact of the healthcare

19 facility and determined that 94 percent of the

20 onsite permanent jobs and 65 percent of the

21 construction jobs at McMillan will be a result of

22 that healthcare facility.

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1 I also found that 65 percent of the

2 D.C. revenues from the project and 69 percent of

3 the net fiscal benefit of the project will result

4 from the healthcare facility.

5 As Mr. Weers testified the project

6 offers the exceptional opportunity to complement

7 the nearby hospitals in a way that sites

8 elsewhere in the district could not.

9 Healthcare is one of the most

10 important industries in the district and it's

11 very important to take advantage of a site that's

12 so proximate to hospitals in order to generate

13 all the benefits, but specifically in my area of

14 expertise additional economic activity.

15 As a result the project offers the

16 opportunity to generate many jobs in a wide range

17 of salaries in a non-downtown location.

18 I also concluded this job creation

19 from the healthcare facilities particularly is

20 important in Ward 5 which has a higher

21 unemployment rate than the district as a whole.

22 Furthermore, because this location is

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1 uniquely likely as Mr. Weers testified to attract

2 such a healthcare facility the tax revenues and

3 net fiscal impact that the healthcare facility

4 will generate will not be obtained anywhere else

5 in the district if it were not for this project.

6 I also wanted to briefly respond to

7 the statement of FOMP's response to applicant's

8 pre-hearing brief on remand issues that the

9 impact of McMillan is quote "entirely comparable

10 to other large development sites such as the

11 Southwest waterfront development, St. Elizabeth's

12 East, and other comparably sized sites," close

13 quote.

14 While it's undoubtedly true that some

15 other major D.C. developments have comparably

16 exceptional benefits to McMillan most of the

17 developments in the district, most of the

18 developments listed on the DMPED website linked

19 to in the FOMP response undoubtedly have much

20 less significant employment and fiscal benefits

21 than McMillan will.

22 For example, according to the DMPED

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1 website the wharf will create 1,000 permanent

2 jobs and between 650 and 1,000 construction jobs

3 compared with 3,300 onsite permanent jobs, 1,100

4 indirect permanent jobs, and 3,000 construction

5 jobs at McMillan.

6 St. Elizabeth's East entertainment and

7 sports arena also listed on the website is

8 forecasted to generate 300 permanent and 600

9 construction jobs.

10 D.C. United, 600 permanent and 290

11 construction jobs.

12 And Shops at Dakota Crossing, a total

13 of 1,200 permanent and construction jobs.

14 In terms of annual revenues at

15 stabilization the DMPED website reports that D.C.

16 United would generate $6 million in annual

17 revenues, St. Elizabeth's East entertainment and

18 sports arena $4.5 million, Martin Luther King

19 Gateway Community $1.4 million, and Hill East

20 District Redevelopment $1 million compared with

21 $34 million in annual revenue at stabilization

22 for McMillan.

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1 And finally it's also worth noting I

2 think that the economic and fiscal impact

3 anticipated from the Rhodes Tavern development

4 many years ago according to the court of appeals

5 1981 decision was going to be 2,000 permanent

6 jobs versus the 4,400 at McMillan, and in excess

7 of $2 million in annual tax revenues which is

8 equal to about $5 million in today's dollars

9 compared with $34 million at McMillan.

10 And the court stated that this impact

11 was a factor militating in favor of a finding of

12 special merit.

13 Thanks very much. I'll take any

14 questions.

15 DR. BYRNE: Thank you. You mentioned

16 the net benefits to the district in terms of the

17 expenditures that they are putting in.

18 Can you characterize or specify the

19 expenditures with what D.C. is putting in?

20 MR. BOGORAD: Sure. A whole range of

21 different budgetary activities. Schools, police,

22 fire --

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1 DR. BYRNE: Offsite?

2 MR. BOGORAD: Well, the way this is

3 typically done in the industry and as we've done

4 and as our predecessor on this project Green Door

5 Advisors did is to essentially look at the entire

6 district budget and all the different activities

7 the city does and then allocate a share of that

8 to each job and each person who's in a given

9 project.

10 And so arguably it's more and probably

11 to be honest the impact is even less than is

12 calculated though we think that's a fair way.

13 DR. BYRNE: I see. So you're not

14 talking about value of land.

15 MR. BOGORAD: No, no, just services.

16 DR. BYRNE: Okay, thank you. Okay.

17 MS. BROWN: Our next witness is Mr.

18 Shane Dettman. And I would like to have him

19 qualified as an expert in land planning and

20 zoning. I have his resume that I'll hand in.

21 MS. FERSTER: I have an objection.

22 DR. BYRNE: Oh you do have an

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1 objection.

2 MS. FERSTER: I believe I have an

3 objection. I don't object to Mr. Dettman's

4 qualifications as a planner, but the objection I

5 would like to raise has to do with his prior

6 service with the National Capitol Planning

7 Commission.

8 He was and he testified to that effect

9 before the Zoning Commission that when the

10 National Capitol Planning Commission reviewed

11 this project in its role of reviewing the zoning,

12 the prior zoning decision he was the staff

13 person.

14 He appeared before the National

15 Capitol Planning Commission. He presented

16 testimony about the impact of the McMillan

17 project on view sheds that were important to the

18 determination of both at the Zoning Commission

19 hearing and also aspects of the site that are

20 important to its historic significance.

21 And the Ethics in Government Act

22 actually has an absolute restriction on former

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1 officers, employees, and elected officials of the

2 executive and legislative branches in the federal

3 and the District of Columbia government that is

4 permanent on actually appearing in a proceeding

5 which is of the same matter that the individual

6 actually represented the government for.

7 So we believe and the citation of that

8 statute is 18 U.S. Code Section 207(a) which is

9 the section that deals with the permanent

10 restriction.

11 And so we believe that that

12 restriction and the Ethics in Government Act

13 disqualifies Mr. Dettman from testifying in this

14 proceeding.

15 DR. BYRNE: So it's not a question

16 really of his expertise but it's the ethics act

17 which would prevent him from testifying even

18 without regard to being an expert witness. Do I

19 have that right?

20 MS. FERSTER: Right. That's exactly

21 right. We don't object to his qualifications as

22 a planner. And I will refer you to Committee for

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1 Washington Riverfront Parks v. Carol Thompson

2 which indicated that -- the Mayor's Agent really

3 had an obligation to entertain that type of

4 disqualification motion where the expert being

5 presented is an official who is potentially

6 subject to the Ethics in Government Act

7 restrictions.

8 DR. BYRNE: That's a Mayor's Agent

9 case?

10 MS. FERSTER: It is. It's a decision,

11 a D.C. Court of Appeals review of the decision of

12 the Mayor's Agent for Washington Riverfront Park.

13 Thompson 451 A.2d 1177.

14 That case is a little different in

15 that it dealt with a different fact pattern than

16 this case in terms of the involvement of the

17 former government officials in the prior

18 decision-making.

19 And I believe the court found that

20 they were actively involved in the prior

21 decision-making in that case.

22 MS. BROWN: Yes, I'd like to have Mr.

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1 Dettman respond to that.

2 DR. BYRNE: Okay.

3 MR. DETTMAN: Good afternoon, Mr.

4 Byrne.

5 Well, Ms. Ferster is correct that I

6 was with the National Capitol Planning Commission

7 until just over two years ago and I did have some

8 involvement in NCPC's advisory zoning review of

9 the McMillan project.

10 Upon finding out that I was going to

11 leave NCPC NCPC's in-house counsel did prepare a

12 memorandum regarding conflicts of interest and

13 where I was barred from participating moving

14 forward.

15 That memorandum to two sections of the

16 U.S. Code which deals with lifetime ban from

17 working on projects as well as a two-year ban.

18 Both of those provisions of the code

19 as I understand it have to do with me

20 representing a non-federal organization in front

21 of a federal agency.

22 DR. BYRNE: And you think it's D.C. or

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1 federal, doesn't matter.

2 MS. FERSTER: That's my reading of the

3 statute and regulations is they don't distinguish

4 between the two.

5 DR. BYRNE: Do we have a copy of the

6 regulations, the statute?

7 MR. DETTMAN: I think I might have it

8 here.

9 MS. BROWN: And we might be able to

10 find a way to get it printed and give to you now.

11 DR. BYRNE: So, could we go on to

12 another witness while that's getting organized?

13 And then we can come back and consider that.

14 MS. BROWN: Sure. Our next witness is

15 Mr. Aakash Thakkar. Aakash, if you could proceed

16 with your testimony.

17 MR. THAKKAR: Good evening. Is it

18 Mayor's Agent Byrne or what is the appropriate

19 way to address you? Judge Byrne?

20 DR. BYRNE: Mr. Byrne.

21 MR. THAKKAR: Mr. Byrne. My name is

22 Aakash Thakkar. I'm a Senior Vice President with

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1 the company EYA, and I've had the good fortune to

2 have been working on this project since its

3 fruition with the District of Columbia about

4 eight or so years ago.

5 So my goal is to sort of summarize our

6 case in its entirety, number one. Number two,

7 provide some details as it relates feasibility of

8 alternatives and particularly cost as it relates

9 to feasibility.

10 And then number three, provide a

11 perspective on this project from the standpoint

12 of the developer. And it's our job to look at

13 preservation and design and program and cost to

14 propose a project that enhances the landmark and

15 provides benefits to residents. At least that's

16 the way we saw and see our job. And so I'd like

17 to do that.

18 Before I get into my presentation

19 there's a couple of questions that have come up

20 and I'd like to just address them quickly.

21 There's some talk in some of the

22 submissions from FOMP about who is paying the

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1 bills for our consulting team. And I just want

2 to put on the record Vision McMillan Partners the

3 private development team is paying its consulting

4 team and itself for any and all appeal work on

5 this project.

6 So I just know it's been noted in a

7 number of the different submissions. That isn't

8 the case. I wanted to make it clear the district

9 is not paying those bills.

10 Number two, with regard to affordable

11 housing I want to clarify the record there as

12 well.

13 In fact, at the time this case was

14 decided given the zone that we applied for at

15 McMillan the requirement for affordable housing

16 was 8 percent of the floored area of the

17 residential and 80 percent of AMI.

18 And so we have argued, and I don't

19 know if it's even an argument, it's a fact that

20 we have 20 percent of our units which is units as

21 opposed to floored area.

22 We will do a calculation. I think

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1 it's important to put in the record what the

2 calculation of floored area is, but it far

3 exceeds the 8 percent that was a requirement at

4 that point in time.

5 What I'll also note is that the bulk

6 of our affordable housing is below the 80 percent

7 that was the law at that point in time. I'd say

8 it's 70 to 80 percent, or 85. Over 134 units are

9 at 60 percent of AMI and 11 are at 50 percent of

10 AMI, and 38 are at 80 percent of AMI. So again,

11 the bulk are well below what the regulations were

12 at that point in time.

13 So with that I will jump into my

14 presentation.

15 So this plan was formulated over eight

16 years. I know you've heard some of this

17 testimony but I think it is important to note

18 that we have worked with a number of groups the

19 Mayor's Agent being just one of them to get to

20 this point in time.

21 And I actually want to recognize I see

22 in the audience here the ANC that is here today.

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1 And I recognize the ANC because I think it's fair

2 to say that there are many, many folks throughout

3 the community and the city who are anxious to see

4 this project move forward and the ANC is clearly

5 one.

6 As Mr. Weers noted we executed a very

7 fulsome community benefits agreement and it's

8 unfortunate we haven't been able to implement

9 that as of yet.

10 So I'll guess start with sort of our

11 approach to preservation and this notion of is

12 this project consistent with the act.

13 And I know that wasn't something we

14 talked about last time we were in front of you.

15 To summarize our case I think it would

16 be that virtually everything above grade,

17 everything that folks can see although they can't

18 experience today is in fact being preserved.

19 So when we talk about the regulator

20 houses and the silos, all 20 of them, and the

21 sand washers and the plinth and all of those

22 important elements that while they haven't been

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1 experienced by the public they have been seen by

2 the public. We are preserving and enhancing all

3 of those.

4 And so I think it's always been our

5 thought, always been Carolyn's thought, always

6 been Emily Eig's thought that this project was in

7 fact consistent with the act because it's

8 enhancing the asset.

9 And in fact, given the condition of

10 the cells and the site today it's a significant

11 improvement in terms of enhancing and celebrating

12 the historic asset.

13 With regard to special merit I know

14 you've seen a lot of this before but I will note

15 that it's one thing for us and our architects and

16 our preservationists to make the case that we are

17 an exemplary architecture for example.

18 I want to note for the record that

19 over a two to three year process we appeared

20 before the HPRB numerous times and I think it's

21 important to note that there are experts in the

22 District of Columbia that opine on whether or not

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1 the architecture is excellent or exemplary.

2 And we went through a process where as

3 Ms. Eig said several times as we appeared before

4 them their view was that the architecture was not

5 cohesive and that the plan did not highlight the

6 best attributes of the landmark.

7 However, by coming up with this

8 architecture and I know Mr. Bell talked about it,

9 but even this notion of sort of the life and the

10 combined architecture, the idea was to almost

11 make the buildings a backdrop for the landmark

12 and through that two plus year process we got to

13 the point where I think HPRB was not only

14 supportive but strongly supportive of this

15 refined architecture and plan that they felt

16 really did at the end of the day celebrate the

17 landmark.

18 And so I just think it's important as

19 we go through these proceedings to also recognize

20 some of the experts in the District of Columbia

21 and their view.

22 DR. BYRNE: Yes. So I wanted to just

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1 note. I have not seen transcripts of the HPRB

2 meetings post the prior decisions when I assume

3 that they have been going back and reviewing the

4 architectural program.

5 And it might be quite useful to the

6 extent to which you are making a stronger pitch

7 for exemplary architecture it would be helpful

8 perhaps to see them.

9 MS. BROWN: I think there's been only

10 one proceeding since the 2014 hearings and that

11 was just to get some -- I don't want to say

12 tweaks, but some minor adjustments to the concept

13 plan. I'm happy to provide them.

14 DR. BYRNE: Yes, I should see that.

15 But I do remember the last HPRB hearing that I

16 read the last time did talk about how much they

17 thought that the cohesion of the plan had

18 improved. But I just want to make sure I'm

19 seeing everything there is to see. Excuse me.

20 MR. THAKKAR: With regard to the

21 specific features of land planning I won't

22 reiterate all of them, but I will highlight some

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1 of them.

2 You had asked about LEED silver and

3 environmental benefits. So we happened to work

4 with the district on several public-private

5 partnerships. It is our understanding that has

6 been corroborated by the city through our

7 documents that LEED silver or something similar

8 is not a requirement of city projects.

9 And so when the question was is this

10 something you had to do because it was a city

11 project or a requirement of the Zoning Commission

12 it was something that was proffered to go above

13 and beyond what was asked.

14 And the project will be certified.

15 Sometimes development projects will be built to

16 certain standards whereas per the code in our

17 case the LEED silver minimum. The project will

18 be certified to that effect.

19 In terms of special merit I think

20 where I'll spend most of my time is on the social

21 or other benefits of high priority.

22 Mr. Bell and Ms. Eig and Mr. Weers all

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1 covered a number of attributes of exemplary

2 architecture and land planning, and I think Mr.

3 Weers covered some of our social and other

4 benefit.

5 But I'll start with, I just wanted to

6 reiterate for the record why we think the project

7 has social and other benefits of high priority.

8 So I'll start with the affordable

9 housing requirement. As you heard me say the 20

10 percent is actually more than double what the law

11 was at the time.

12 And I pause to say that even the types

13 of housing was a very long and deep discussion

14 with the community about what types of housing

15 they wanted on this site.

16 As you may know there are a number of

17 seniors who live around the community. So this

18 idea of aging in place or having housing to move

19 to when this project is done is something that

20 was very important to that community.

21 So the housing, a good portion of it

22 is affordable senior housing. That came from the

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1 community and through discussions and therefore I

2 would say has social benefit clearly for that

3 community as evidenced by ANC support of that

4 particular component of the project and overall.

5 I'll also note that the rowhome

6 component of the project has affordable housing

7 for families. And that was another part of the

8 discussion.

9 So much of the housing in the District

10 of Columbia today market rate and otherwise is

11 multifamily housing which is not necessarily fit

12 for families or larger families. Twenty-two of

13 the 146 rowhomes will be affordable at various

14 affordable levels, 80 percent and 50 percent of

15 AMI.

16 And that too was a discussion with the

17 community and a response to community desires for

18 atypical affordable housing that might not be

19 provided in other areas.

20 We've talked about the grocery store

21 and the retail stores, but from day one this

22 notion of a grocery store to provide food and

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1 groceries in what is a food desert in the city

2 was something that was a high priority.

3 And as Mr. Weers said it has been

4 challenging given the fits and starts with this

5 project to maintain interest, but as I think you

6 are aware we have Harris Teeter onboard and ready

7 to be a part of this project as soon as we can

8 make it happen.

9 The community center and community

10 pool. I know that the court, my understanding

11 was that the court said that the 6.2 acre park I

12 guess couldn't be considered a special merit

13 benefit because it was a preservation benefit.

14 We are arguing that while we may not

15 agree with that decision there are a number of

16 components on the actual park which are not part

17 of preservation at all that in fact are strong

18 benefits and have special merit.

19 The first one being the community

20 center and community pool. Ms. Eig described how

21 we believe that that part of the project is

22 exemplary architecture in the way it integrates

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1 itself with the cells, but as important I'm going

2 to keep coming back to what did the community

3 want throughout this eight-year process, and a

4 community center and a pool that was open to the

5 public, not just to the residents of the project,

6 was again probably one of the top five things we

7 heard.

8 And through working with the council

9 member through the area, through working with the

10 ANC, the Mayor, the City Council, funds were

11 allocated for that community center and pool and

12 the district is working on that as we speak.

13 So apart from the park, the community

14 center and pool we believe that's special merit.

15 The playground is another component

16 again not just of an open field or a park, but an

17 active playground with equipment for adults, with

18 equipment for children all with an amphitheater,

19 with a walking museum, again are all components

20 of that southern component of the project which

21 has special merit.

22 And I'll come back to this, but the

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1 way that all of these in our opinion and as a

2 project developer I can say that components like

3 that are very rare for private projects because

4 they're extraordinarily expensive and don't bring

5 back any revenue.

6 They're open to the public, largely

7 free to the public or at a very low cost to the

8 public.

9 The way this whole project is

10 happening and something again I can provide some

11 more detail on is the district is selling the

12 development team some land, and the City Council

13 have allocated other monies.

14 Those monies come together to provide

15 the historic preservation and the public benefits

16 of the site.

17 And why this is such a delicate

18 balance is after eight years the City Council has

19 approved a certain amount of money and that is

20 fundable and it is fixed.

21 And the development team has agreed on

22 a certain amount of money and we have carefully

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1 budgeted all of this to make sure that the public

2 benefits that we have proffered can be delivered.

3 I just want to note that all these

4 benefits come from that place and so when you

5 talk about reasonable options, and I'll get to

6 some of the options we've looked at, I think

7 reasonability can take into consideration cost,

8 and there is a cost to all these benefits, and

9 the way that the district and the private

10 developer structured the deal is to ensure that

11 we can provide those benefits.

12 If one were to reduce development and

13 enhance preservation costs that balance would be

14 thrown off and we wouldn't have a way to provide

15 all the benefits that we have proffered to you

16 and to the Zoning Commission and to others.

17 But I digress. Coming back to special

18 merit.

19 With regard to the healthcare

20 component Mr. Weers did talk at length about

21 this.

22 I will also note that again one of the

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1 community's chief concerns in a project which is

2 not downtown oriented, and I do think this makes

3 our project different from a typical downtown law

4 firm and such.

5 The community said look, you're going

6 to be creating all these jobs. There has to be a

7 way in a ward that has somewhere close to double

8 or more of an unemployment rate than the rest of

9 the city, there has to be a way to connect

10 community residents to these great new jobs that

11 are being provided.

12 And clearly there will be jobs across

13 the economic spectrum. We've provided many in

14 fact could be obtained without college degrees.

15 So this notion of a significant fund, $1 million

16 to fund job training so folks in the community

17 can work in these very buildings we think is

18 something unique and isn't offered in other

19 typical office type of projects.

20 As Mr. Weers testified in total our

21 community benefits funds roughly about $3.25

22 million go to a variety of different uses, but

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1 all of them are either spent onsite with regard

2 to training folks to take jobs, or in the

3 immediate surrounding community in order to sort

4 of unify that community and make sure they can

5 interact well with McMillan.

6 And I'll just quickly walk through

7 those. Mr. Weers talked about the $1 million

8 workforce development fund. There's $125,000 for

9 STEM education at district schools in the

10 surrounding area. We actually targeted with the

11 ANC five schools that needed a boost with regard

12 to STEM and earmarked those dollars.

13 Five hundred thousand to hire district

14 youth and elderly to provide tours of McMillan.

15 So we even got to the point where it wasn't --

16 but youth in the community and elderly folks in

17 the community to learn about McMillan and

18 actually give tours as part of the walking museum

19 is part of this project.

20 Seven hundred fifty thousand dollars

21 to create community art installations and

22 activate the service courts.

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1 Five hundred thousand dollars to civic

2 groups for local and neighborhood beautification,

3 and $150,000 to North Capitol Main Streets.

4 And again as a developer that has

5 worked on numerous projects in the city and

6 around the city I'm not aware of any project that

7 has even close to this level of onsite community

8 benefit which we've walked through today, whether

9 it be the healthcare buildings, or the affordable

10 housing, or the parks and the community center,

11 or this level of community benefits.

12 And again, I make the point that that

13 was negotiated and voted on with the ANC

14 supported by the City Council in the community.

15 And so when you come back to this

16 definition of special merit and one of the prongs

17 being social or other benefits of high priority I

18 guess I find it hard to find higher priorities

19 than those that the ANC and the council member of

20 the particular area Ward 5 wanted for their

21 project.

22 And we were able to shake hands and

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1 deliver on those benefits so desired by the

2 community.

3 Another point I want to put on the

4 record. I know Ms. Eig did this, but from the

5 development team standpoint to the extent that

6 there was a lack of clarity on our preservation

7 of cells 14 and 28 we are proposing to preserve

8 them.

9 The court wanted us to clarify that

10 and I'm clarifying that as well.

11 With regard to the cells. So you

12 heard from Silman with regard to their analysis

13 of cell preservation and I believe the last time

14 I was before the Mayor's Agent I layered on sort

15 of the developer hat point of view with regard to

16 what you can do with these cells.

17 As we all know they are unreinforced

18 concrete. And while Silman does a great job of

19 walking us through the structural issues that is

20 only one of what I'd call probably five or six

21 key issues that in our opinion makes certainly

22 the overbuild and the interior use.

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1 So the bottom two of the options

2 largely infeasible. So I'll start with topside

3 loading. As Mr. Ruiz said we are proposing to do

4 something to that extent on cell 14.

5 If you look at the interior use, and

6 I'm not the only developer in town, but the

7 amount of stabilization required and still the

8 uncertainty with being under those cells given

9 the lack of reinforced concrete, we would find it

10 very difficult. We talked to insurance

11 companies. They'd find it very difficult to

12 really make the cells while keeping their

13 structural integrity and historical integrity

14 make the minimum occupiable below grade.

15 The overbuild scenario is something we

16 looked at rather extensively. And as you can see

17 we've got to put these columns into the ground

18 just to create additional support.

19 The other thing that this doesn't take

20 into account is things like utilities. And so

21 how do you get water, and sewer, and gas, and

22 electric. And those would come through

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1 essentially under the buildings and punching out

2 through the foundation.

3 And this also doesn't talk about just

4 the simple I guess I'll call it geography as you

5 see this next slide of running streets.

6 So we've got three streets through the

7 middle third of the site. Those streets we could

8 have here in different places. Actually HPRB

9 suggested that we have this sort of tripartite

10 organization such that all the blocks have sort

11 of cell-like characteristics.

12 But even to run those streets we have

13 found no way to be able to actually dig and lay

14 streets again over these cells.

15 So if you look at things like land

16 development, if you look at things like building

17 streets, if you look at laying utilities, if you

18 look at what I'll call non-structural issues they

19 make the -- any real use of these cells or any

20 building on top of these cells infeasible, not to

21 even get into the amount of destruction of the

22 historic integrity you have to do to make one of

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1 these work.

2 It was one of the first things when we

3 got involved in this project that we were asked

4 to do and we took a lot of time and consideration

5 to evaluate that option.

6 So I'll next move to demolition and

7 subdivision we believe are necessary to obtain

8 special merit benefits. So we are requesting

9 demolition of the 16 cells as we did before.

10 With regard to subdivision our view is

11 that we are reducing the number of record lots

12 from 122 to 6. And the subdivision as Ms. Eig

13 testified is simply to implement this plan.

14 But I would note that any plan that we

15 might put forward that would have a series of

16 different buildings and the comprehensive plan

17 clearly says a mix of uses, what makes more

18 sense.

19 Any plan would have to have what I

20 would call very similar subdivision having worked

21 on many very similar projects. Regardless of how

22 this site was configured I think we've got six

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1 record lots.

2 I can't see a situation where anything

3 particularly less than that would be necessary to

4 implement a large master planned project.

5 As I said demolition must occur

6 because any significant use, be it healthcare,

7 housing, retail, parking, community center, pool,

8 playground, streets, utilities, infrastructure,

9 really can't occur with the cells in place.

10 And if the cells are in place then

11 those special merit benefits that we are

12 suggesting on top of those cells wouldn't be in

13 place.

14 So it is one of the other. I'll point

15 to D.C. Water. I'm sure that D.C. Water was well

16 aware that these cells had historic merit. And

17 I'm sure they looked at initially how they might

18 be able to work with or around them and their

19 conclusion was that although they're doing work

20 while below the ground I think their need if I

21 understand it correctly is to get a big tunnel

22 into the ground well below those cells.

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1 They couldn't save those cells and

2 realistically do the day to day work they needed

3 to do to put infrastructure into the ground. I

4 think that's an important view because it's the

5 one group that has looked at these cells to date.

6 And I think they also found it harder

7 than they expected to even demolish certain cells

8 without other cells coming down because of the

9 unreinforced nature of the concrete as evidenced

10 by some of the pictures Ms. Eig showed us.

11 So, what I'd say is consistent with

12 Mr. Bell. Less demolition equals less special

13 merit and less community benefit in our view.

14 And less demolition as I spoke to

15 earlier also equals a lack of economic

16 feasibility.

17 And I go back there to my earlier

18 point that there is a good amount of public

19 funding going into this project.

20 It would be one thing if it were a

21 private project and we were coming before you.

22 Even under that circumstance we might say look

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1 this amount of funds is reasonable to build a

2 project in the city and we can spend that amount

3 of money.

4 In this case there's a significant

5 amount of public money going into the

6 preservation of the service courts and the parks

7 and community centers along with private dollars,

8 and any additional preservation I will call it

9 would make it very difficult to impossible as I

10 see it to allow the project to move forward.

11 With regard to alternatives, you know,

12 are there reasonable alternatives that achieve

13 the same special merit. So as Mr. Bell testified

14 we have reviewed not just -- I think Mr. Bell may

15 have reviewed six or seven or so alternatives.

16 I can say, and I'm sure many community

17 members would concur with me, there have probably

18 been dozens more that we have shared with the

19 community and with HPRB, and maybe hundreds more

20 that we've worked on that we haven't presented

21 because they didn't provide that balance between

22 preservation and open space and development that

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1 the community was looking for.

2 DR. BYRNE: Just to clarify, you're

3 saying that you shared dozens of different

4 proposals with community groups.

5 MR. THAKKAR: Yes, I am saying that.

6 Throughout I'll call it the 8-year -- well, it's

7 2017, so actually 10-year history of me working

8 on this project there are many more iterations of

9 McMillan than simply the ones Mr. Bell have shown

10 the community.

11 I will say that all of those in our

12 minds were consistent with comprehensive plan and

13 showed a general mix of uses and open space and

14 preservation.

15 So for example, no, we didn't show one

16 that was all park. They were all various

17 development proposals because that's what we've

18 been asked to do and that's what the district

19 bought the land for.

20 So to this notion of could we preserve

21 any more cells, saving any additional cell or

22 part of the cell would increase cost. I don't

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1 think there's any dispute with that notion.

2 And with no additional revenue coming

3 from that preservation we find it hard to say

4 that a plan with no preservation would be a

5 reasonable one given that there is this public-

6 private structure in place, and that the City

7 Council has both committed money to the project

8 and reviewed this project many, many times as

9 well and sort of concluded that in its opinion

10 this project matches the district priorities and

11 that it would contribute some of the money that

12 it has committed to making that happen.

13 So in conclusion we can sort of

14 literally go around the board and look at any of

15 these cells.

16 Let's say we were to say Mr. Weers

17 talked about saving cell 13. Let's say we saved

18 cell 20, for example.

19 So one might say it's only got 30 or

20 so rowhomes on it. So you'll lose some amount of

21 affordable housing and some grade housing. And

22 so I talked about family housing and that's part

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1 of our family housing program.

2 But the impact to that is far more

3 than just losing that housing. It's losing the

4 revenue that the developer would pay to the city

5 which allows the city to put forth such a

6 comprehensive public benefit and preservation

7 program.

8 So it's not just loss of development

9 program, it is also an inability to pull the

10 overall sources and uses together to make the

11 project work.

12 If you look even at a cell like 29 for

13 example that has the same impact in terms of it

14 costing a lot more to preserve and build a park

15 than just to build the park.

16 But you have this issue of not being

17 able to enter the site from North Capitol Street

18 because of the plinth and how the current site

19 interacts with North Capitol Street.

20 If you look at cells 18 and 19 that's

21 where the grocery store. And sure, you can

22 potentially move the grocery store but again

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1 there's affordable housing on top of that grocery

2 use.

3 So our point is that we're making the

4 case that there's significant special merit here,

5 and that each component of this project

6 individual of the others has special merit and

7 we'd argue that the combination together is that

8 much more unique.

9 But having less demolition anywhere on

10 the site does two distinct things. It reduces

11 our special merit which we don't want to do and

12 don't think is appropriate given the strength of

13 the preservation program as it is today.

14 But it also creates a huge imbalance

15 with regard to the economics of the project.

16 And with that I will conclude my

17 testimony. I appreciate your time and look

18 forward to answering any questions. Thank you.

19 DR. BYRNE: Thank you. Appreciate it.

20 MS. BROWN: I don't think I have any

21 additional direct questions for the witness, and

22 I do have answers for you on the qualifications.

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1 What I will hand out to the parties

2 behind me and to you -- what I just handed out

3 was the memorandum that Mr. Shane Dettman

4 received from NCPC counsel on the conflicts of

5 interest regarding post government employment.

6 You also were handed out a copy of the

7 18 USC Section 207. And you were also handed a

8 copy of the Committee for Washington Riverfront

9 Parks case.

10 And I would direct your attention to

11 two specific provisions.

12 First, in the NCPC memo there is an

13 attachment dated February 7, 2000. If you turn

14 to page 3 of that attachment Section B there's

15 the numeral 1. Then you have a paragraph labeled

16 discussion.

17 And then the next one that starts,

18 "The restriction does not apply."

19 So, I'm going to read that paragraph.

20 The restriction does not apply unless a former

21 employee communicates to or makes an appearance

22 before the United States on behalf of some other

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1 person.

2 For these purposes the United States

3 refers to an employee of any department, agency,

4 court, or court martial of the United States

5 paren, and this is the important part, but not of

6 the District of Columbia.

7 And then if you turn to 18 USC and

8 it's the second page of the handout provision 3

9 clarification of restrictions the first

10 subparagraph A talks about conflicts or

11 restrictions between U.S. government employees

12 and U.S. agencies. And B talks about district to

13 district.

14 So those are the conflicts. And

15 because NCPC is federal there is a federal bar,

16 but not federal to district.

17 DR. BYRNE: May I suggest that we take

18 a five-minute recess. I can read and Ms. Ferster

19 can think about what she wants to say. And then

20 we can proceed. So five minutes.

21 (Whereupon, the above-entitled matter

22 went off the record at 3:20 p.m. and resumed at

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1 3:29 p.m.)

2 DR. BYRNE: Okay, let's take this

3 issue up.

4 The statute on its face seems to

5 clearly allow this testimony to go forward. And

6 I'm particularly looking at Section 207(a)(3)

7 which appears to be a later amendment to Section

8 1 to say that we're only talking about federal

9 officials in federal proceedings and district

10 officials in district proceedings.

11 I have -- and that's the view

12 obviously taken by the counsel for NCPC in

13 writing the memo here.

14 However, I do have -- so I do have a

15 concern though because in the D.C. Court of

16 Appeals decision cited by Ms. Ferster in 1982 the

17 court plainly views the statute as applying to a

18 former Department of Interior employee testifying

19 in a D.C. proceeding.

20 Now, it may well be that that decision

21 in 1982 came before the Section C was added. And

22 I don't have enough information though to

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1 determine that.

2 MS. BROWN: We're verifying that now,

3 but I note that the court case is citing a 1978

4 provision, and this obviously is a much later

5 provision.

6 And it's a clarification section so

7 that even if the section cited in the case law

8 are verbatim the same in this clarification later

9 I think that that takes care of it.

10 DR. BYRNE: It does. My concern would

11 be if the clarification existed before I would

12 feel bound by the court of appeals.

13 I mean, they don't discuss the

14 provision.

15 Here's what I think. Why don't we do

16 this. Why don't we allow Mr. Dettman to testify

17 leaving open the possibility that the parties can

18 clarify their positions on the law about the

19 permissibility of the testifying.

20 And if it turns out -- if the argument

21 is made to me in a way that I accept I'll strike

22 his testimony and proceed without it.

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1 Is that agreeable?

2 MS. BROWN: Yes. If I could have just

3 a few more seconds of time in the meantime. I

4 don't know if it's appropriate now to even try to

5 go through the applicant's hearing exhibits just

6 to make sure that we have all the ones that are

7 supposed to be in the record, or if you want us

8 to wait that's fine.

9 DR. BYRNE: Based on the book you

10 gave.

11 MS. BROWN: On what we've submitted

12 during the hearing today. And what we've

13 submitted so far.

14 And I would designate them applicant's

15 hearing exhibits. And the first is the list of

16 special merit features. The second is the Chris

17 Ruiz resume. The third is the book of slides.

18 Fourth is Mr. Len Bogorad's testimony.

19 Fifth is Mr. Dettman's resume. The sixth is the

20 NCPC memo. The seventh is the case law. And

21 eighth is the statute.

22 So I read that into the record and

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1 whoever's monitoring this can perhaps help.

2 DR. BYRNE: Okay, well that goes into

3 what the court reporter is taking down.

4 MS. BROWN: Yes, right.

5 DR. BYRNE: So, that's fine. Also, I

6 want to note that Ms. Ferster requested that my

7 contract with the Office of Planning go in and

8 that will go in as well as Opponent's Exhibit 8.

9 MS. BROWN: And you also requested Mr.

10 Bell to provide the literature I believe on --

11 citations.

12 MS. FERSTER: You mentioned I think

13 Mr. Thakkar also said he would subsequently

14 provide the calculations for the gross square

15 feet of affordable housing.

16 DR. BYRNE: Thank you.

17 MS. BROWN: Okay, Mr. Dettman, do you

18 want to proceed?

19 DR. BYRNE: We'll proceed with Mr.

20 Dettman.

21 MR. DETTMAN: Good afternoon again. My

22 testimony today will focus primarily on issues

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1 three and four as identified in the Mayor's Agent

2 order.

3 In response to the direction given by

4 the court the crux of my presentation will focus

5 on demonstrating how the special merit features

6 in the McMillan project directly and

7 significantly advance the policies of the

8 comprehensive plan and why those policies support

9 a conclusion of special merit.

10 It's important to note that consistent

11 with the court's order my testimony will not aim

12 to demonstrate overall consistency of the

13 McMillan project with the comprehensive plan.

14 As you know, overall consistency with

15 the comprehensive plan is a legal standard used

16 by the Zoning Commission as it prepares, adopts

17 and amends the zoning regulations and reviews

18 requests for planned unit development.

19 And as stated by the court it's not

20 something that necessarily demonstrates that a

21 project has special merit.

22 However, this does not mean the

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1 comprehensive plan is without a role in

2 determining whether a project has special merit.

3 Quite the contrary. As the court has

4 stated specific provisions in the comprehensive

5 plan can play a key role in the special merit

6 inquiry and quoting an article and title of the

7 special merit provision for demolition and

8 alteration of historic properties under the

9 District of Columbia Historic Preservation Act,

10 quote, "The more an applicant can tie elements of

11 the proposed project to specific preferred land

12 uses set out in the comprehensive plan the more

13 likely it is that the Mayor's Agent will approve

14 the project under this element of special merit."

15 I think in order to better understand

16 that quote and how the McMillan project aligns

17 with the comprehensive plan and informs special

18 merit inquiry, it's important to briefly describe

19 the role of the comprehensive plan and the role

20 that it plays in guiding public policy decisions

21 in physical development in the district.

22 As you can see on the slide before you

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1 the comprehensive plan is described as the

2 centerpiece of a family of plans that guide

3 public policy in the district.

4 It provides overall direction and

5 shapes all physical plans that the district

6 government adopts. In fact, it should be the

7 basis for all plans relating to the city's

8 physical development.

9 It's the guide for all district

10 planning, establishes the priorities and key

11 actions that other plans address in greater

12 detail, and provides broad direction that is

13 implemented through agency's strategic and long-

14 range plans such as the district's economic

15 development strategy, a comprehensive housing

16 strategy, the district's parks and recreation

17 master plan, and the sustainable D.C. plan.

18 Thus the greater the degree to which

19 a project directly advances the policies of the

20 comprehensive plan the more significant its

21 positive impact is on the district's ability to

22 achieve its planning and development goals for

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1 the city and thus the greater benefit it has to

2 the district and the community.

3 So beginning with the land use

4 element, the element that integrates the policies

5 and objectives of all other comprehensive plan

6 elements both citywide and area.

7 Listed before you on the slide are the

8 land use only policies that are directly advanced

9 by the project.

10 In general these policies acknowledge

11 the great potential that large publicly owned

12 sites have for addressing the district's needs.

13 These policies also recognize the

14 significant opportunity large development sites

15 present for implementation of sustainable design

16 principles and the creation of preferred land

17 uses such as affordable housing, parks,

18 healthcare facilities, retail, and other

19 community facilities.

20 They promote mixed use development on

21 large sites that's comparable with adjacent uses

22 integrated with and provides benefits to the

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1 surrounding neighborhoods, and protects existing

2 assets on the site.

3 Some of the specific special merit

4 features of the project that directly advance

5 these policies include a cohesive and integrated

6 master plan and integrated and unified building

7 design including the establishment of design

8 guidelines.

9 The activation, adaptive reuse, and

10 the public accessibility to historic structures.

11 The substantial amount of new housing including

12 132 new affordable housing units which will

13 comprise a range of sizes including larger family

14 sized townhomes and be converted to a range of

15 income levels.

16 A substantial amount of new parks and

17 recreation space including a new community

18 center. A full-service grocery store and

19 numerous other retailers.

20 Numerous and stable design features

21 with the master plan being designed to LEED ND

22 gold. And a $650,000 contribution to

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1 neighborhood beautification.

2 Moving to the transportation element.

3 Listed before you are a few of the transportation

4 element policies that are directly advanced by

5 the project.

6 Some of the special merit features of

7 the project that directly advance these

8 transportation policies include a robust private

9 shuttle system to increase access to Metro, new

10 Capital Bikeshare stations, improved circulation

11 through a new internal street grid, and new

12 traffic lights and several other improvements to

13 the surrounding transportation network.

14 Housing elements. As you can see on

15 the policies listed on the slide the project will

16 advance numerous housing element policies and by

17 virtue of that will greatly assist the district

18 in achieving its housing and affordable housing

19 goals as set forth in the district's

20 comprehensive housing strategy.

21 These policies generally promote new

22 housing integrated with mixed uses. High-quality

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1 affordable housing. Maximizing the potential to

2 address the district's housing needs on large

3 sites, especially large publicly owned sites.

4 Providing a range of unit and tenure

5 types at varying income levels. Ensuring long-

6 term affordability and providing a variety of

7 housing types for seniors in locations that are

8 convenient and close to key services.

9 The project overwhelmingly delivers on

10 these policies through special merit features

11 such as 677 units of new housing of which 132

12 will be affordable for the life of the project

13 and which will consist of both rental and owned.

14 New low-income senior housing that's

15 also located in close proximity to key services

16 such as transportation, healthcare, retail, and

17 community recreation facilities.

18 Larger sized market rate and

19 affordable townhomes that can accommodate

20 families. Integration of housing with a wide

21 range of other supporting uses and significant

22 contributions toward implementation of workforce

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1 development and education programs.

2 The environmental protection policy --

3 the environmental protection element I should

4 say.

5 Specifically, the special merit

6 features of the project that will directly

7 advance policies in the environmental protection

8 element include the master plan being designed to

9 LEED ND gold or equivalent.

10 Significant low-impact development

11 strategies including one-third acre bioretention,

12 one-third of an acre of greenland, 1.3 acres of

13 permeable paving, and over 700 new trees.

14 Currently the site has very poor

15 stormwater retention and treatment capacity.

16 These strategies will significantly improve

17 stormwater management which will result in

18 substantially less runoff flowing into the

19 district's combined sewer system which helps

20 protect the watershed.

21 Economic development. Like the

22 housing element as you can see the project will

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1 directly advance a substantial number of

2 comprehensive plan policies, especially as it

3 relates to preferred land uses such as

4 healthcare, retail and grocery stores.

5 The economic development policies that

6 are advanced by the special merit features of the

7 project promote, support an expansion of the

8 district's core industries of which healthcare is

9 one of them, maximizing the economic development

10 potential of large sites, specifically publicly

11 owned sites.

12 Expanding the retail sector,

13 particularly in underserved areas, and increasing

14 job training and local hiring.

15 Special merit features of the project

16 that link directly to these policies include the

17 proposed healthcare facilities and the creation

18 of a medical hub, which is part of the district's

19 economic strategy.

20 A full-service grocery store and

21 substantial amount of additional retailers.

22 Significant tax revenue generated by the project,

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1 over $1 billion. Thousands of permanent and

2 construction-related jobs that will be created

3 with a high percentage of these jobs filled by

4 district residents.

5 The extensive job training

6 opportunities and substantial contributions to

7 workforce development programs, and millions of

8 dollars in other community benefit contributions

9 that will be put towards storefront support and

10 small business promotion.

11 Turning to the comp plan's park,

12 recreation and open space element. The project

13 will directly advance many of the policies

14 contained in this element for the approximately

15 12 acres of new parks and recreation facilities

16 that will be provided.

17 These policies call for providing a

18 diverse range of high-quality parks and

19 recreational experiences, achieving a better

20 distribution of parks, providing new parks on

21 large sites and surplus land and improving

22 recreation centers.

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1 Some of the special merit features of

2 the project that relate directly to these

3 policies include a new open space system

4 consisting of several parks of various sizes and

5 programs, including a large continuous park at

6 the south and the reconstruction of Olmstead

7 Walk.

8 A new community center containing a

9 pool, multipurpose meeting space, a fitness

10 studio and outdoor gathering spaces, the

11 playground, the sprayground, and a $750,000

12 contribution to the project association to

13 program and activate these new spaces and

14 facilities.

15 Moving on to urban design. The

16 policies that will be directly advanced by the

17 project in the design have to do with viewshed

18 protection, city gateways, integrating the

19 project into the neighborhood character and

20 identity, transitions in building intensity,

21 creating attractive facades, infill development,

22 and the list goes on and on.

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1 The special merit features of the

2 project that will directly link to the urban

3 design element policies that are listed before

4 you include the cohesive master plan and

5 integrated building design.

6 The unified pallette of materials

7 that's inspired by the landmark and the

8 implementation of design guidelines. The

9 retention of views and the spatial organization

10 of the site.

11 The distribution of land uses and

12 building forms on the site in relation to the

13 surrounding context.

14 The integration of the site and of the

15 surrounding context in a way that also

16 acknowledges the original subdivision of the site

17 and the organization of the landmark.

18 The quantity and quality of the parks

19 and other public gathering spaces that will be

20 provided including the recreation of Olmstead

21 Walk.

22 Moving on to historic preservation and

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1 the arts and culture elements. The policies here

2 talk about preservation master plans, integrating

3 the historic review process into the development

4 of master plans for large sites.

5 Integrating large sites into the

6 surrounding context in a way that's compatible

7 not only with the surrounding context but also

8 any kind of historic assets.

9 For the arts and culture element it

10 talks about emphasizing important places with art

11 and using art to create identity.

12 We've talked today about some of the

13 special merit features that talk about art, and

14 that talk about historic preservation including

15 the public art program that will be established

16 onsite.

17 The programming that will be onsite

18 carried out by the project association that will

19 be created.

20 The walking museum. And for the first

21 time the actual interpretation and the

22 opportunity to explore the site and learn the

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1 history of the site and how it relates to the

2 district and the history of the surrounding

3 neighborhood.

4 The preservation, rehabilitation and

5 adaptive reuse of historic structures and the

6 cohesive master plan using a pallette inspired by

7 the landmark.

8 Community services and facilities.

9 Educational facilities and infrastructure

10 elements.

11 These policies talk about the adequacy

12 of facilities, retention of publicly owned land

13 for important uses. The location of facilities.

14 The location of healthcare facilities. And the

15 need to improve stormwater management.

16 Special merit features specific to the

17 project that will advance these policies include

18 the addition of 12 acres of new open space to the

19 mid city area, a new community center,

20 substantial upgrades in stormwater management,

21 the healthcare facility which Mr. Weers testified

22 will help address the district's outdated medical

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1 facilities and the deficiencies in healthcare

2 facilities per person.

3 A $500,000 contribution to hire high

4 school students and seniors to help interpret and

5 provide tours of the McMillan site, and a

6 $125,000 contribution to be dedicated towards

7 STEM teacher development and training.

8 The last element, the mid-city element

9 which is the area element that's specific to this

10 site.

11 The policies in the mid-city element

12 including those that are specific to McMillan and

13 that will be directly advanced by this project

14 are listed here. It has to do with protection of

15 affordable housing, providing new parks,

16 recreation centers, looking at the open space on

17 McMillan reservoir as part of the redevelopment

18 scheme, historic preservation of the McMillan

19 reservoir as part of the redevelopment scheme.

20 In terms of the special merit features

21 specific to this project that will be directly

22 advanced by this project is the 20 percent of new

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1 affordable units which will help not just protect

2 but also provide brand new affordable housing in

3 this area of the city, providing up to 12 acres,

4 almost half of the site to new parks, plazas and

5 open space.

6 The new recreation center directly

7 advancing the recreation center policy.

8 Restoration of key above grade

9 structures including the preservation of cell 14

10 and cell 28 and the interpretation of the site

11 and its cultural significance to the neighborhood

12 and the district.

13 Just to summarize the discussion about

14 the comprehensive plan the special merit features

15 of the project will directly advance over 100

16 policies and actions in all 13 citywide elements

17 and the mid-city element.

18 You've heard today from numerous

19 people about how this site presents an

20 opportunity unlike no other in the city and I

21 can't think of another body that's capable of

22 advancing the number of -- directly advancing the

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1 number of policies that this project does in the

2 comprehensive plan across all applicable

3 elements.

4 The degree to which the comprehensive

5 plan policies are advanced demonstrates the

6 significant range of benefits provided by the

7 project by virtue of exemplary architecture,

8 specific land planning, and social and other

9 benefits having a high priority of community

10 services.

11 Moving briefly to the subdivision. My

12 understanding based on my review of the record

13 and the transcripts there was an overview of the

14 types of lots that are acknowledged and used with

15 respect to land regulation in the district.

16 First there's record lots. And as you

17 learned during the last proceeding under zoning a

18 record lot is required for purposes of being able

19 to get a building permit.

20 And what the zoning regulations say

21 and it's cited here in relevant part is that

22 essentially the rule is it's one building for one

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1 record lot. And in certain situations and in

2 certain conditions you can have multiple

3 buildings on a record lot and then it's further

4 regulated through the use of theoretical lots.

5 The image you're looking at here, it's

6 been shown a little bit earlier, this is the

7 subdivision that currently exists on the site.

8 It predates the construction of the sand

9 filtration plant and it consists of about 122

10 record lots.

11 As you can see on this overlay we

12 cannot build this project of special merit with

13 the existing record lots as they exist on the

14 site today. So we need some degree of

15 subdivision.

16 And I'll say that the extent of

17 subdivision that's being proposed has been

18 minimized and through the use of theoretical lots

19 on parcels 2 and parcels 5.

20 Also, the thought occurred to me as

21 Mr. Bell was moving through the alternatives that

22 were presented.

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1 The thought occurred to me that by

2 virtue of the evolution of the plan and the

3 reduction in the amount of coverage and the

4 increase in the amount of open space provided,

5 that in and of itself, the evolution of the

6 master plan actually reduced and minimized the

7 extent of subdivision that's required.

8 DR. BYRNE: I had a thought about

9 subdivision. And I'd like to see what you think

10 of it. Ms. Brown to you as well and Ms. Ferster

11 will want to comment on this at some point.

12 So if it's correct legally that the

13 current subdivision are the record lots from 1898

14 then they are not part of the historic element

15 that's protected by the combination.

16 So that if you are subdividing the lot

17 from a subdivision that is not historic, is not

18 related to the historic interests of the site

19 that the act doesn't even apply.

20 That's sort of -- you don't have to --

21 the lawyers can think about it. I just wonder

22 what your reaction to that is.

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1 MR. DETTMAN: If I understand the

2 question.

3 DR. BYRNE: This may be a lawyers

4 question really.

5 In other words, the nomination of the

6 site has to do with it as it exists as the sand

7 filtration site. The subdivision that exists as

8 a matter of D.C. law actually has nothing to do

9 with the way the sand filtration site appears.

10 They're not related to each other.

11 So if we're subdividing what we're

12 doing, we're making fewer lots out of many lots

13 and it's not in that way.

14 I'm just wondering whether it's

15 actually part of the historic element that the

16 law protects.

17 MS. BROWN: I certainly like where

18 you're going with the theory but unfortunately I

19 think that we have the situation in Georgetown

20 all the time.

21 You have a mish mash of underlying

22 record lots and tax lots and houses are just

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1 sitting in the middle of them.

2 In the past it has been interpreted

3 that the preservation law does indeed apply to

4 that, particularly when you're consolidating

5 them.

6 There has been an interpretation I

7 think it's in the law now that when you have a

8 tax lot and you're just doing a coterminous

9 boundary for a record lot it does not require a

10 hearing. And I think some other things have

11 changed as well.

12 But unfortunately I think that because

13 we are going to the surveyor's office to request

14 a change in the configuration of these lots I

15 think that we are bound by the law.

16 DR. BYRNE: Okay.

17 MS. FERSTER: So I too actually like

18 where you're going with that thought which

19 perhaps we heard something completely different.

20 But what I heard you say was that the

21 historic significance of the site post dates

22 subdivision. So this subdivision was plotted in

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1 1893. The site was not developed until many

2 years later.

3 So the existing plat subdivision is

4 not -- it's a piece of paper, but it is not part

5 of the historic significance of the site.

6 And there is law as Ms. Brown alludes

7 to and I think we cited this law in our findings

8 of fact in the demolition case where the prior

9 Mayor's Agent basically said that if a

10 subdivision was approved prior to -- without any

11 review by the HPRB and by the Mayor's Agent, and

12 I think in one of those cases it predated some

13 subdivision rule.

14 But if the subdivision was approved

15 prior to -- without any review under the

16 Preservation Act it just doesn't count. You look

17 at the subdivision that is currently being

18 proposed.

19 So our view that legally this 1893

20 subdivision is legally irrelevant to your

21 determination.

22 DR. BYRNE: Okay. Well, I'm afraid

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1 I've distracted everybody from the quoted

2 testimony. I was thinking about that and just

3 wanted to.

4 But I get the point. We are in fact

5 seeking subdivision and it will have an effect on

6 the site.

7 MS. BROWN: If the subdivision

8 regulations didn't require this we wouldn't be

9 here.

10 DR. BYRNE: Right. Okay.

11 MR. DETTMAN: With respect to

12 subdivision. The subdivision is required to

13 construct this project of special merit. Whether

14 you acknowledge the existing lots on the site or

15 you don't.

16 The extent of subdivision has been

17 minimized as I've mentioned just by virtue of the

18 evolution of how the master plan came together to

19 this point as well as through the use of

20 theoretical building sites on lots 5 and 2.

21 Further reductions in the extent of

22 subdivision would not fundamentally change what

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1 ultimately would be constructed on the site.

2 And so the discussion we just had, if

3 you were to acknowledge the existing record lots

4 as they exist, the 122 lots, the extent of

5 subdivision on the site is less than what

6 currently exists.

7 And so just in conclusion, getting

8 back to the specific questions that are being

9 asked and the issues that I'm addressing the

10 demolition of subdivision are necessary in order

11 for the special merit features to directly

12 advance the significant number of comp plan

13 policies that I talked about today.

14 There's no economically viable mixed

15 use development involving less demolition and

16 less or no subdivision that would meet the goals

17 of the comprehensive plan to the extent that

18 would support a conclusion of special merit.

19 And finally, there are no reasonable

20 alternatives that would avoid or reduce the need

21 for demolition or subdivision and achieve the

22 same special merit benefits and thus advance to

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1 the same extent the comprehensive plan policies.

2 DR. BYRNE: Thank you. A couple of

3 questions. And you of course were going over

4 many, many comprehensive plan provisions.

5 But could you take me back and specify

6 whether the comprehensive plan, what the

7 comprehensive plan says about healthcare

8 facilities?

9 MR. DETTMAN: There are a couple of

10 specific areas -- I'll try to get to the slide as

11 I'm talking. It's mainly the economic

12 development element. And it talks about it

13 encourages the district to continue to expand and

14 support its core industries. And the healthcare

15 industry is one of those viewed core industries.

16 It also talks about continuing to grow

17 -- it specifically talks about continuing to grow

18 the healthcare industry in the District of

19 Columbia.

20 Again, I'm trying to show you those

21 specific policies as I'm looking at exhibit C of

22 our filing.

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1 So if you were to look at exhibit C

2 the name of the policy is called Core Industries.

3 Continue to support and grow the district's core

4 industries, particularly the federal government,

5 professional and technical services, membership

6 associations, education, hospitality and

7 healthcare and administrative support.

8 We think that by virtue of the million

9 square feet of healthcare facilities being

10 proposed that's not only going to help support

11 and continue to grow the healthcare core industry

12 for the district and allow it to continue to

13 diversify its core industries and its economic

14 well-being, but as Mr. Weers talked about the

15 ideal location and relationship of this project

16 in relation to the hospital across the street

17 will further strengthen the district's core

18 industry.

19 The other policy that I was looking to

20 find is towards the end --

21 DR. BYRNE: Talking about primary care

22 and emergency care.

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1 MR. DETTMAN: Yes, there's one, it's

2 in the elements, community services and

3 facilities. Primary and emergency care. And it

4 says ensure that high-quality affordable primary

5 health centers are available and accessible to

6 all district residents.

7 Emergency medical facilities should be

8 geographically distributed. I think that's the

9 one that you're referring to.

10 The other economic development policy

11 is called institutional growth, support growth in

12 the higher education and healthcare sectors.

13 DR. BYRNE: Okay. Which is that

14 found?

15 MR. DETTMAN: That's in the economic

16 development element. It's policy 2.4.1.

17 DR. BYRNE: Okay, thank you. That's

18 good. I also was struck, I forgot the emphasis

19 in the historic preservation column about

20 preservation master plan. Because we certainly

21 have that in this case. I haven't connected that

22 in my mind. Okay.

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1 MS. BROWN: That concludes all our

2 direct witnesses. We would like to again

3 preserve for the record the opportunity to

4 provide the additional information on the case

5 law on the disqualification and exclusion of Mr.

6 Dettman's testimony. And we are ready for cross

7 examination.

8 DR. BYRNE: Okay, let's march ahead

9 since we had a little break before. Ms. Ferster,

10 if you're ready.

11 MS. FERSTER: So one drawback of this

12 method of cross examination. Since so many

13 elements of the project were addressed by so many

14 witnesses I'm going to be skipping around quite a

15 bit. So it's not going to be coherent in terms

16 of asking everybody -- not repeating questions to

17 one witness and then getting everybody to answer

18 them.

19 What I'm going to do is just because

20 it's fresher in my mind and actually the -- start

21 with a couple of specific witnesses I'm going to

22 go backwards because it's helpful to me.

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1 So I'd like to start with Mr. Dettman

2 since he was the last one.

3 Okay, so looking at your point about

4 the elements of comprehensive plan that you view

5 demonstrates special merit of this project I'm

6 just going to call out a couple of these points.

7 One are that the traffic issues here.

8 You identify under transportation improvements

9 that you believe qualify the project for special

10 merit.

11 And isn't it correct that this is a

12 project that will generate pretty substantial

13 additional traffic on the existing streets?

14 MR. DETTMAN: It will generate

15 additional traffic.

16 MS. BROWN: And I have a set objection

17 to this because I believe that the court ruled

18 that any adverse impacts generated by this

19 project are not within the scope of the Mayor's

20 Agent proceeding.

21 MS. FERSTER: Well, that's my point

22 exactly. The court specifically -- elements of

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1 the plan that reduce impacts like traffic

2 mitigation it would be double counting to count

3 them as special merit.

4 For example, you indicate that there's

5 transit services that are being provided. Are

6 those transit services being provided to mitigate

7 traffic impacts?

8 MS. BROWN: I think there's an

9 objection here that needs to be ruled on.

10 DR. BYRNE: Yes. So, this is actually

11 something which maybe you all can give me more

12 advice on because I find the court a little

13 confusing about this in the sense that I do agree

14 that if the point that Ms. Ferster is making --

15 well, one of the points she's making certainly is

16 that to the extent that this project creates

17 adverse effects the mitigation of them is not a

18 special merit. It's not an issue for the Mayor's

19 Agent.

20 But on the other hand it's really hard

21 to understand that if you have all kinds of

22 community benefits and one of the ways that we

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1 assess whether something is a community benefit

2 is by looking at the comprehensive plan the

3 Mayor's Agent has in many cases looked at those

4 benefits in light of the comprehensive plan it

5 just becomes kind of a wavy line as to what the

6 Mayor's Agent must consider and what the Mayor's

7 Agent can consider.

8 I do think that mitigation effects

9 probably are not -- mitigation of adverse effects

10 from the project are not my area, they're not

11 what I'm -- so if that's the point that Ms.

12 Ferster is making which I think it is then it's a

13 good point. But we don't need to have questions

14 of the witness about it.

15 MS. FERSTER: If you ruled and you are

16 objecting to that line of questioning --

17 DR. BYRNE: I don't object to the line

18 of questioning except I don't know that it's

19 necessary.

20 MS. FERSTER: The witness has

21 proffered these as special merit benefits.

22 DR. BYRNE: He did. He mentioned 100

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1 comprehensive plan elements and we're not going

2 to go through all 100, right?

3 MS. FERSTER: Well, I didn't count him

4 but he went through quite a few, yes.

5 DR. BYRNE: So, I mean I think if the

6 objection is that the Mayor's Agent needs to look

7 carefully to see whether purported special merit

8 benefits are special merit benefits I agree with

9 that. I intend to do that.

10 So I don't know if that is great use

11 of your time in cross examining to sort of tick

12 through all the ones he mentioned.

13 But I'm open to persuasion on the

14 point.

15 MR. DETTMAN: Mr. Byrne, I do have a

16 comment to make about the shuttle. And I

17 understand that we're kind of running against a

18 fine line here.

19 But while the shuttle service may show

20 up in the transportation element I think we all

21 know that there's a lot of overlap, the

22 comprehensive plan specifically acknowledges the

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1 overlap in the policy elements.

2 I think the shuttle actually does

3 provide a special benefit. There are other

4 policies that talk about senior housing and

5 locating senior housing in close proximity to

6 support services.

7 I could see the shuttle being very

8 valuable to the low-income seniors that live in

9 that building who want to jump on the shuttle and

10 get someplace else in the city.

11 It's right there. They could walk on

12 the Olmstead Walk. They could jump on the

13 shuttle. They can go to the Metro.

14 DR. BYRNE: Maybe you do have to ask

15 the questions.

16 MS. FERSTER: Is it your position that

17 the transportation improvements -- I hear you

18 saying that the transportation improvements will

19 serve the people on this site.

20 What I'm trying to find out is will

21 the transportation improvements provide offsite

22 benefits to other people as well that in effect

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1 are greater than the impacts to existing

2 neighbors in terms of the traffic circulation, in

3 terms of traffic congestion, in terms of their

4 ability to cross North Capitol Street, in terms

5 of their ability to get to where they need to go

6 offsite.

7 MR. DETTMAN: I can answer the part of

8 the question related to the availability of

9 whatever transit services are provided by virtue

10 of this project.

11 The answer is yes, it will be

12 available to both residents, workers and visitors

13 onsite and offsite.

14 As to the second part of your question

15 about impacts I don't believe that that's

16 actually part of this proceeding.

17 MS. FERSTER: Right and that is

18 exactly my question is I understand that you're

19 not going to kick anybody off the shuttle --

20 that's a good thing -- who's not on the site, but

21 the question is is there a net transportation

22 benefit beyond the impacts of this project as a

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1 result of these services that you provided.

2 I mean I can see, for example, many

3 projects, private development projects that offer

4 traffic improvements by the District of Columbia

5 as part of the mitigation. Does that suddenly

6 convert that into a special merit?

7 MR. DETTMAN: I think if you were to

8 take the totality of transportation improvements

9 that are going to be provided by this project, if

10 we were to wade through them and identify the

11 ones that are questionable, if we can set those

12 aside I think there are net transportation

13 benefits provided by this project, not only the

14 shuttle as I just described.

15 There's the additional bike

16 facilities, the brand new Capital Bikeshare

17 station, the increased access to the site, the

18 east-west and north-south access. That's

19 transportation. That's pedestrian, that's

20 vehicle and that's bike transportation

21 improvements.

22 MS. FERSTER: Okay. Well, let's go

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1 into that. Are you a transportation expert?

2 Have you actually quantified what the level of

3 service would be without the transportation

4 improvements on this site?

5 MR. DETTMAN: I'm not an expert in

6 transportation but I don't need to be. I'm an

7 expert in planning and land planning and zoning.

8 And in planning school you learn about

9 what makes a good network of pedestrian,

10 vehicular, and bicycle separation. That's

11 increasing access. That's increasing

12 connections. And that's exactly what's happening

13 on this 25 acre site.

14 Right now it's fenced off. If I want

15 to go from Channing to Michigan I have to walk

16 around the site. Someday I can walk through,

17 around, across, can meander across the site.

18 That's increases in transportation.

19 MS. FERSTER: And I understand that

20 you believe that there are benefits. But the

21 question, the legal question is are those

22 benefits, do they go beyond what the impacts that

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1 this project is generating.

2 And what I understand is you haven't

3 evaluated that.

4 MS. BROWN: I'm just going to again

5 object.

6 What I think Ms. Ferster is doing is

7 putting in your lap, Mr. Mayor's Agent, Mr.

8 Byrne, balancing the net benefits of the

9 transportation features against the net adverse

10 impacts, and that's exactly what the court says

11 you can't do.

12 DR. BYRNE: I appreciate that, but I

13 think she's also trying to isolate the extent to

14 which the alleged transportation benefits are

15 special merit or not, and suggesting that that

16 has to be a net inquiry rather than just looking

17 at them in and of themselves.

18 So I find myself sort of stuck in that

19 point in terms of trying to understand what the

20 court of appeals wants me to do.

21 And this was the confusion last time

22 with the healthcare facility in which what I

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1 thought I said was that the fact that it was

2 large didn't detract from the project being one

3 of special merit and the court said well, you're

4 considering whether it's a good idea to have a

5 healthcare facility.

6 So, I find the line difficult to

7 manage. Okay. Enough about me.

8 How to proceed with this. I think

9 maybe can we just let it lie that the question of

10 the special merit of the transportation part at

11 least has to be understood only in net terms.

12 And I think the witness has testified

13 that in his opinion there is a net benefit. And

14 maybe we just leave it there.

15 Or I don't know, maybe you want to

16 attack that some more, but --

17 (Simultaneous speaking)

18 MS. FERSTER: I don't think he's

19 qualified to make that assessment. I will move

20 on from transportation for sure.

21 But this same issue is presenting

22 itself from innumerable comp plan elements that

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1 he mentioned. Light pollution, et cetera, that -

2 - control of urban runoff, vehicle noise, all

3 these things I think can only be viewed as

4 special benefits if we have a calculation of what

5 the project -- in terms of the elements of the

6 project that would further these policies, what

7 they would be, and what the noise or the light

8 inclusion or the runoff would be without those

9 elements. And then we could determine whether or

10 not there is a net benefit beyond this,

11 mitigating the impact of this project.

12 So I think it does cross a lot of

13 these elements.

14 So the question is do you want me to

15 go through this discussion with respect to more

16 of these items that I feel are mitigation as

17 opposed to -- and ask the questions about what

18 the net benefits of it. Or can I simply pose a

19 question to Mr. Dettman of whether or not he has

20 actually calculated the net benefit to the public

21 beyond the impacts of the project from each of

22 these elements.

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1 MR. DETTMAN: Is that the question?

2 MS. FERSTER: The environmental

3 protection elements because I see those as very

4 much mitigation as opposed to -- and the

5 transportation elements.

6 MR. DETTMAN: Sure. Again, as I laid

7 out in my testimony I want to make sure that it's

8 clear that I was not arguing just mere overall

9 consistency or inconsistency with the

10 comprehensive plan.

11 To the extent that we can tie directly

12 policies of the comprehensive plan to a special

13 benefit the greater the likelihood that the

14 project can be found to have special merit. So

15 that was sort of the scope and the focus of my

16 testimony.

17 Now with respect to your question you

18 had mentioned light pollution and whether or not

19 I quantified that.

20 Again, my testimony had to do with

21 tying a policy to an identified special benefit.

22 And if I could do that to a great extent I would

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1 make the argument that that should give some

2 indication of the special benefit of that project

3 over 100 policies.

4 Now, light pollution, stormwater

5 management, all that, it's all quantified in the

6 master plan. With respect to light pollution,

7 with respect to stormwater management, impervious

8 surface, that's called LEED ND gold. That goes

9 above and beyond what is required under any kind

10 of district building code or regulation.

11 This entire 25 acre site has been

12 looked at holistically as a sustainable

13 environment and is going to achieve LEED ND gold.

14 Again above and beyond anything else I believe

15 that's special merit.

16 You had mentioned one other one.

17 MS. FERSTER: Noise. I mentioned

18 noise. Reduction of vehicle noise. That's one

19 of the things in the environmental protection

20 element that you identified.

21 MR. DETTMAN: I did not quantify a

22 reduction in noise.

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1 MS. FERSTER: Okay. And just to

2 clarify on light pollution my question didn't go

3 are you mitigating the light pollution generated

4 by this project.

5 The question is are you going beyond

6 that and mitigating other light pollution for

7 example in the surrounding area. That would be a

8 net benefit.

9 MR. DETTMAN: The net benefit is the

10 entire project as a whole has reached a very high

11 level of LEED neighborhood development gold.

12 That takes into account a lot of environmental

13 sustainability strategies.

14 You had mentioned stormwater

15 management. That was the other one you had

16 mentioned. And it has been quantified in the

17 master plan that not only is the project going to

18 meet the district's very stringent stormwater

19 management requirements but in very technical

20 calculations in the master plan the project is

21 actually going to exceed the amount of volume of

22 water it has to retain onsite.

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1 DR. BYRNE: It's interesting. I mean

2 in a sense that if one would accept for a moment

3 the fact that the project creates special merit

4 benefits say for example through affordable

5 housing the fact that it does a very

6 sophisticated job of mitigating the harms that

7 come from creating the development that generates

8 those special merit benefits, I don't know if

9 it's a special merit itself but it is a plus for

10 the project.

11 I mean, it's hard to see where the

12 Mayor's Agent can sort of get his arms around

13 that, but it is -- Ms. Ferster, you're sort of

14 comparing it to doing nothing and that's -- that

15 would be good only if there were no other special

16 merits to the project.

17 MS. FERSTER: A follow-up question

18 about stormwater management. When you said that

19 there's going to be stormwater control that is

20 improved on the site are you counting the

21 stormwater management projects undertaken by WASA

22 involving both the stormwater management site on

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1 South 14th as well as the First Street Tunnel

2 project?

3 MR. DETTMAN: No. Those were not

4 retention. Those were not reuse projects. Those

5 were not environmentally sustainable stormwater

6 management projects.

7 MS. FERSTER: Including what's called

8 the stormwater retention project?

9 MR. DETTMAN: That is a big tunnel

10 down First Street in order to capture water

11 coming off of lots of sites.

12 The D.C. stormwater regulations is a

13 site by site analysis applied to a specific

14 project that requires you to retain onsite, not

15 put it in a tunnel under First Street, retain a

16 certain volume of water onsite.

17 MS. FERSTER: And how about South 14th

18 which is specifically called the WASA stormwater

19 retention project?

20 MR. DETTMAN: Right, retention in a

21 tunnel for long-term detention down to Blue

22 Plains.

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1 When I say retention I'm talking about

2 holding it onsite and putting it in cisterns and

3 reusing it for landscaping. Putting it in a

4 green roof and letting it evaporate into the sky.

5 That's onsite retention.

6 MS. FERSTER: Thank you. So we talked

7 about economic development and how the healthcare

8 facility furthers economic development policies.

9 And you didn't specifically say the plan. You

10 said economic goals of the District of Columbia

11 in your verbal testimony.

12 So I'm curious about whether or not

13 you're talking about any specific plans other

14 than the comprehensive plan.

15 MR. DETTMAN: No, I mentioned the

16 district's economic development strategy.

17 MS. FERSTER: Strategy, okay. So you

18 were referring to the district's economic

19 development strategy. Which economic development

20 strategy are you referring to?

21 MR. DETTMAN: The one that was shown

22 on the slide was the economic development

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1 strategy that specifically identified McMillan

2 and recommended a medical hub to be located

3 there.

4 I understand that within not too long

5 ago the administration has released another five-

6 year economic development strategy. And no

7 mention of McMillan is in that, but that does not

8 mean that the district is not interested in

9 establishing a medical hub at McMillan, seeing it

10 as an ideal opportunity.

11 As a matter of fact they said nothing

12 to roll that recommendation back, and at the time

13 of that most recent economic development strategy

14 was released the McMillan master plan was well

15 underway and it was based upon the economic

16 development strategy that was in place at the

17 time the master plan was put together.

18 MS. FERSTER: But you would agree that

19 the five-year master plan that you showed on your

20 slide is no longer the current five-year master

21 plan, isn't that correct?

22 MR. DETTMAN: I wouldn't agree with

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1 that because the economic development strategy

2 I'm not sure is a cleancut document, once a new

3 one comes out the old one goes away.

4 MS. FERSTER: Okay, well perhaps we

5 could ask that question of Mr. Kenner then. I'll

6 move on.

7 Okay. You mentioned in one of your

8 slides reference to protection of affordable

9 housing in the mixed city policy 1.1.7 as a

10 policy that is furthered by this project.

11 Isn't it correct that that policy

12 refers to existing affordable housing, not

13 affordable housing that you are creating as part

14 of that project?

15 MR. DETTMAN: The actual policy says

16 strive to retain the character and density as a

17 mixed income by protecting the area's existing

18 stock of affordable housing and the plan was

19 meaning that this was not going to displace any

20 affordable housing because it's a vacant site.

21 The policy further goes on to say and

22 promoting the construction of new affordable

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1 units.

2 MS. FERSTER: Okay. So have you done

3 any kind of -- so it's not your testimony that in

4 fact this project protects existing affordable

5 housing. You're not testifying to that. You're

6 focusing on the new housing.

7 MR. DETTMAN: Correct. I will follow

8 that up though and say that the policy encourages

9 the protection of existing and the construction

10 of new. And the project advances that entire

11 policy.

12 It does nothing to the existing stock

13 of affordable housing because there's nothing on

14 the site and it provides all new affordable

15 housing.

16 MS. FERSTER: Thank you. Okay, so Mr.

17 Thakkar, working backwards here. Let's see. You

18 talked -- and this can go to really also other

19 people who testified because actually a number of

20 people testified about the whole issue of LEED

21 certification of the project. So really I can

22 ask anybody this question who feels most

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1 qualified.

2 Who would like to step up and I guess

3 I would particularly ask the question of whoever

4 is the most familiar with the green building

5 code.

6 MR. THAKKAR: I'm happy to step up.

7 I'm not particularly familiar with the green

8 building code, but I am familiar with LEED.

9 And as I said, it is my understanding

10 that LEED silver which is the minimum requirement

11 that we committed to with the Zoning Commission

12 exceeds district building codes.

13 And we are certifying the project --

14 you can build to LEED or build to various things.

15 We're actually going to be certifying this

16 project at LEED silver or better which to my

17 understanding exceeds building code requirements.

18 MS. FERSTER: Okay. What I wrote down

19 that you said was that you said that LEED silver

20 is not a requirement for District of Columbia

21 projects. So you didn't feel that that was a

22 requirement. And the question is the green

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1 building code, is it your opinion as somebody who

2 is familiar with the green building code that the

3 green building code does not require LEED silver

4 certification?

5 MR. THAKKAR: I am not familiar with

6 the green building code. In building other

7 projects in the district I am not aware of having

8 to build to a LEED silver and certify a project

9 as such.

10 MS. FERSTER: Were you not aware that

11 the green building code has specific provisions

12 that deal with district-financed projects?

13 MR. THAKKAR: I don't know that this

14 project is district-financed.

15 MS. FERSTER: It's defined as a land

16 disposition and development agreement.

17 MS. BROWN: I think he's already

18 testified that he's not familiar with the D.C.

19 green code enough to answer those questions.

20 MS. FERSTER: Okay, so were you simply

21 speculating. Is there anybody who's very

22 familiar with the green building code who can

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1 talk about whether or not this silver

2 certification is required in district-financed

3 projects as that is defined in the green building

4 code?

5 MS. BROWN: I think there was no

6 direct testimony that you've heard today on the

7 green building code with that particular

8 provision so I think it's best if you bring that

9 up in your case in chief.

10 MS. FERSTER: Sure. Okay. And I

11 think there was also some mention of LEED gold.

12 There's a component of the project that was LEED

13 gold.

14 Can you be more specific about what

15 component is LEED gold?

16 MR. BELL: That's the LEED

17 neighborhood development. LEED ND it's called.

18 MS. FERSTER: And could you describe

19 that in a little more detail in terms of the

20 buildings that are involved.

21 MR. BELL: LEED ND is about master

22 planning. It is about transportation access to

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1 walkable communities, making things

2 interconnected, mix of uses, accessible public

3 open space, things like that.

4 MS. FERSTER: Okay. And so is there

5 a higher LEED certification than gold?

6 MR. BELL: I believe there is LEED

7 platinum.

8 MS. FERSTER: This project does not

9 meet LEED platinum.

10 MR. BELL: We have committed to LEED

11 gold.

12 MS. FERSTER: So the remainder of the

13 components of the project, every one of them are

14 LEED silver.

15 MR. BELL: What do you mean by the

16 remainder?

17 MS. FERSTER: You indicated that --

18 MR. BELL: There are different LEED

19 classifications. There are LEED for new

20 construction. There's all sorts of LEED

21 categories. The one I've been specifically

22 involved in is the LEED ND, LEED gold.

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1 And we've gotten LEED silver

2 certification for the individual buildings.

3 MS. FERSTER: So everything other than

4 in the master planning is LEED silver. Are there

5 any buildings or components that do not meet LEED

6 certification silver below that, or is everything

7 at least silver?

8 MR. BELL: We committed to everything

9 minimally being silver.

10 MS. FERSTER: And there's a higher for

11 all those other components in addition to the

12 master planning LEED certification that would

13 also be that it allows for silver and platinum as

14 well.

15 MR. BELL: That's a standard LEED

16 classification, yes.

17 MS. FERSTER: Thank you. So, this is

18 particularly for Mr. Thakkar again. You indicated

19 -- talked about the fact that you would be

20 providing affordable housing for seniors that is

21 a benefit to the existing community. Did I

22 correctly summarize that piece of your testimony,

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1 that the affordable housing for seniors on the

2 site would benefit the existing community?

3 MR. THAKKAR: I didn't say it that

4 way. What I said was that there are a number of

5 seniors within the existing community and that

6 cohort suggested strongly that we include

7 affordable senior housing on the site.

8 The reason I say that is of course due

9 to fair housing there's no guarantee that someone

10 who lives across the street could necessarily

11 live in this house versus someone who lives in

12 Georgetown for that matter.

13 MS. FERSTER: Thank you for that

14 clarification.

15 You also I think had some testimony

16 about the fact that this project provides for

17 multifamily housing which is a particularly

18 valuable component to this project.

19 MR. THAKKAR: I think what I said was

20 that it provides housing for families. What I

21 testified to is we have various different types

22 of affordable housing including housing for

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1 families which is not the multifamily housing,

2 it's actually the townhouses because they are

3 larger, having more bedrooms and more square

4 footage suitable for families.

5 And that much of the affordable

6 housing being built in the city is multifamily

7 affordable housing and may not be as catered to -

8 - may not be built for families in the way the

9 townhouse might be.

10 MS. FERSTER: Thanks. So that

11 restates my question, thank you, I appreciate

12 that.

13 So in terms of the housing that's

14 being provided onsite for families, that would

15 include the townhomes that EY is building. And

16 would that also include the multifamily

17 buildings?

18 MR. THAKKAR: Certainly it could

19 include the multifamily buildings. Families can

20 of course live in multifamily housing as well.

21 MS. FERSTER: Can you quantify how

22 many of the units of the multifamily housing

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1 would be -- could be occupied by families,

2 meaning they had two or more bedrooms?

3 MR. THAKKAR: I'll have to get back to

4 you with regard to that answer. What I testified

5 to was that our project includes townhouse style

6 housing which would be appropriate for families.

7 So I didn't testify to the fact that

8 the multifamily housing would or wouldn't house

9 families in particular.

10 What I did say is that unlike many

11 projects, let's take the wharf for example since

12 I know we discussed that before.

13 My understanding is that most of that

14 housing is multifamily in nature and not to say

15 that multifamily housing is not suitable for

16 families, but many families like to live in fee

17 simple detached housing.

18 This project both by size and

19 configuration provides that option.

20 MS. FERSTER: So perhaps I should ask

21 that question of Mr. Lynch.

22 MS. BROWN: He's not with us today.

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1 MS. FERSTER: I'm sorry. Whoever is

2 responsible for the multifamily housing.

3 MR. THAKKAR: We can get back to you

4 with the answer to that question.

5 DR. BYRNE: We're talking about the

6 cross.

7 MS. FERSTER: Okay, so my other

8 question was going to be, and I'd appreciate you

9 getting back to me about that as well is of the

10 multifamily units that are suitable for families

11 meaning they would have two or more bedrooms I

12 would like to know how many of those are going to

13 be affordable units.

14 Can you provide that?

15 DR. BYRNE: She's asking --

16 MS. BROWN: We're waiting for a

17 question. We didn't hear the question so --

18 DR. BYRNE: Oh, I'm sorry. Go ahead

19 and ask it again.

20 MS. FERSTER: Well, the question was

21 can you also provide how many of the affordable

22 multifamily units are going to be for families

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1 meaning two or more bedrooms.

2 MR. THAKKAR: I don't know that that

3 has been finalized yet. To the extent that we

4 have that information given where the project is

5 in the entitlement process we can get it to you.

6 I just don't know that that's been finalized.

7 I also want to say for the record when

8 I spoke about family housing I was referring to

9 the 146 townhouses as a unique component of the

10 project that is not part of most large projects

11 in the district.

12 MS. FERSTER: Understood. So, you

13 also talked about the creation of jobs, job

14 training, employment, et cetera. And a number of

15 witnesses did mention that there will be a number

16 of jobs that will be created.

17 And I think there was some suggestion

18 that the existing surrounding community would

19 benefit from the jobs that would be created by

20 that site.

21 I believe that was the testimony

22 perhaps of Mr. Bogorad.

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1 MR. BOGORAD: As with housing you

2 can't guarantee that somebody in some other

3 neighborhood wouldn't get a job.

4 MS. FERSTER: I'm flipping from

5 housing to jobs.

6 MR. BOGORAD: I realize that, I'm just

7 saying it's a similar situation.

8 What I was saying is it will create a

9 lot of jobs at the site. There's also spinoff

10 jobs a lot of which would be near the site.

11 And having those proximate to these

12 particular neighborhoods and to an area with

13 higher unemployment increases the odds that

14 people in those neighborhoods will be able to get

15 jobs.

16 I mentioned it in this testimony but

17 it is combined with all the job training and

18 other things that other witnesses have mentioned

19 makes it particularly likely that those jobs will

20 become available for and will actually end up

21 being filled by people within the general

22 neighborhood.

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1 MS. FERSTER: But you're not going to

2 provide any particular preference for people who

3 live in the neighborhood.

4 MR. BOGORAD: I'm not aware that

5 that's legal.

6 MS. BROWN: I don't think he testified

7 to that.

8 MR. BOGORAD: No, I certainly didn't

9 testify.

10 MS. FERSTER: So, just a couple of

11 questions about the subdivision here. A number

12 of witnesses testified that they believe that

13 this project, that the subdivision issue is

14 really about reducing the number of subdivisions

15 and that you didn't feel that your project could

16 be reconfigured in a way that reduced the number

17 of subdivided lots.

18 Am I summarizing the testimony? I

19 think it was Mr. Thakkar and others. That

20 subdivision. I have it written down in my notes

21 with you, that you felt that --

22 DR. BYRNE: Mr. Dettman said that.

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1 MS. FERSTER: Mr. Dettman?

2 DR. BYRNE: I think Mr. Dettman said

3 that -- generally though that they couldn't

4 reduce subdivision, couldn't have fewer

5 subdivisions and have the special merit benefits

6 that the project provides. I believe that was

7 the testimony.

8 MS. FERSTER: Okay. So whoever is the

9 most appropriate person to answer this follow-up

10 question.

11 And my question is not whether or not

12 you considered reduction of a number of

13 subdivisions. My question is whether you

14 considered the same perhaps number of

15 subdivisions but different configurations that

16 would move the existing buildings into different

17 locations within the site. Did you consider

18 that? As part of the alternatives to the

19 subdivision.

20 DR. BYRNE: So I saw a lot of pictures

21 of different configurations of buildings on the

22 site. I would assume that they were doing that

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1 before they were thinking about how to divide

2 lots up.

3 MS. FERSTER: I think those pictures

4 all predated the filing of this application.

5 DR. BYRNE: I think so too.

6 MS. FERSTER: So that's my question.

7 Do you want to postdate it after the filing of

8 your application in response to the D.C. Court of

9 Appeals decision.

10 Did you look at different subdivision

11 configurations. Not necessarily just reducing

12 the number of lots, but actually just

13 reconfiguring the lots so that your project would

14 be located in a different way.

15 I can give you an example if you would

16 like one example. But let me just ask you the

17 question just generally. Did you look at

18 different configurations for locating your

19 proposed buildings within the site.

20 MS. BROWN: Can I just ask a

21 clarifying question? Ms. Ferster, are you

22 suggesting that subdivisions should come first

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1 and a building program second?

2 MS. FERSTER: No, I'm saying that they

3 are looking -- your witnesses testified they

4 examined alternatives that would reduce the

5 number of subdivisions and I'm simply asking did

6 you also examine alternatives that would have

7 reconfigured the subdivisions.

8 That presumably would have changed the

9 location of the buildings within the site.

10 MR. DETTMAN: I think I understand the

11 question and how it relates to my testimony so

12 let me take a shot.

13 So the one point I did make in

14 relation to subdivision was referring back to the

15 numerous alternatives that Mr. Bell reviewed.

16 If you look at those and if you were

17 to try to take each of those alternatives and

18 apply a subdivision that met zoning and met all

19 requirements the extent of the subdivision as the

20 master planning evolved got less and less because

21 there were fewer buildings, they were better

22 organized and there was more open space.

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1 In terms of whether or not there were

2 other configurations of the existing master plan

3 explored in order to try to reduce the extent of

4 subdivision I think it's important to point out

5 that a record lot required a street frontage.

6 So there's only so many record lots

7 you can draw around the buildings that are

8 currently being proposed.

9 Now if you take, I don't know how many

10 buildings, I know we have 19 clusters of

11 townhomes, we have a building on parcel 1, there

12 are 20 some buildings per se.

13 So Ms. Ferster, if you're asking have

14 we taken those 20 some buildings and moved them

15 around the site in order to try to reduce the

16 amount of subdivision I think that goes to my

17 point that if you do that it doesn't really

18 change the extent to which what actually happens

19 on the site. You're just moving the lines around

20 constrained by what the requirements are for a

21 subdivision.

22 But I think at the end of the day

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1 there's no differences whatsoever.

2 MS. FERSTER: Okay, so my question was

3 a little simpler than that. It was just did you

4 consider doing that.

5 MR. DETTMAN: The simple answer is no.

6 Ms. Brown's comment, we developed a building

7 program that best met the needs of the landmark,

8 the needs of the community, the needs of the

9 building program and then figured out the less

10 intrusive subdivision that we needed to build.

11 MS. FERSTER: Thank you. And let me

12 just follow up with Mr. Weers because I think

13 this was one of his slides.

14 I'm looking at the additional cell

15 preservation on parcel 1 slab which is at page

16 182 of the booklet.

17 And my question doesn't have to do

18 with cell preservation but this graphic is

19 useful.

20 So I guess one question would be as an

21 alternative that you might like to consider, did

22 you ever consider flipping the healthcare

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1 facility building so that -- and perhaps this is

2 actually a better question for Mr. Thakkar

3 because he was the one that particularly talked

4 about how the healthcare facility was sited in

5 particular to allow some space between the north

6 service court.

7 MR. WEERS: That's my --

8 MS. FERSTER: That's you, okay. So

9 the question, I'm looking at this slide and it

10 looks to me like there is more space actually

11 between Michigan Avenue and the building areas

12 between the north service court and the building.

13 So, if you were interested in

14 maximizing the amount of open space in the --

15 near or around the north service court wouldn't

16 you just flip that and put the healing garden on

17 the other side of Michigan Avenue?

18 MR. WEERS: So, I'm not sure on your

19 question. Can you help me understand what are

20 you asking?

21 MS. FERSTER: The question again is

22 simple. Did you ever consider reconfiguring the

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1 healthcare facility on parcel 1 so that -- you

2 know, these east -- what do you call them, the

3 east and the west --

4 MR. WEERS: Yes, I think the answer to

5 your question generally is yes. We examined a

6 lot of different options and configurations for

7 parcel 1.

8 And the building itself used to be

9 closer to Michigan Avenue. In fact, part of the

10 reason why it is where it is today is because of

11 a community meeting where we were at Big Bear

12 Cafe and people asked for it to move away from

13 Michigan Avenue, thus the healing gardens were

14 born.

15 But I think Mr. Bell probably has some

16 other thoughts that are helpful.

17 MR. BELL: In addition to what Mr.

18 Weers said we did look at flipping it. We looked

19 seriously at that. We think this is a much

20 better configuration. It handles the drive-up

21 and drop-off for the healthcare building without

22 introducing that traffic onto the north service

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1 court.

2 It also provides at a lower level

3 there's a section drop. I'm demonstrating with

4 my hand here from Michigan down to the north

5 service court that's one level of section change.

6 What that allows us to do is to put a

7 level of retail at a lower level and the drop-off

8 at an upper level.

9 This is great because it allows for

10 the retail to relate to the north service court

11 which is very much where everybody wanted the

12 retail there with the grocery store.

13 And it keeps the people who are

14 dropping folks off and going into the garage for

15 the healthcare facility up to the north.

16 The healing garden softens that

17 experience. And when you wall off Michigan it

18 becomes difficult to see the entry into the site.

19 So we felt that the spatial

20 configuration of the two buildings like this with

21 the healing gardens allow for an entry, kept the

22 traffic off the north service court, gave us a

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1 retail frontage on the north service court, and

2 that was the best solution.

3 MR. WEERS: And if I could I think

4 part of what that answer which I agree with

5 illuminates is that you can't just plan this site

6 and plan it and say why don't you just pick it up

7 and move it over there.

8 Every one of these decisions has a

9 significant number of factors and components

10 added into it. It is not just a question of

11 where should the open space go because the open

12 space affects the circulation. It's all tied

13 together is my point.

14 MR. BELL: And we debated this with

15 the HPRB.

16 MR. WEERS: The District of Columbia

17 Department of Transportation.

18 MR. BELL: And one of the debates that

19 came out of that was the setting back of the

20 buildings above the first floor in the north

21 service court.

22 So that was one of the ways we dealt

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1 with the spatial arrangement around the existing

2 landmark and HPRB supported that solution.

3 MS. FERSTER: What was that version

4 that you say you considered that would have done

5 as I described? Was that actually presented then

6 to the HPRB?

7 MR. BELL: I can't recall honestly if

8 we made drawings of that. I know we did talk

9 about it and we did talk about it with them and

10 we debated the merits of that.

11 I will tell you that there was a

12 scheme where the buildings went straight up from

13 the north service court and then we came back and

14 were asked to push them back which is what you

15 see today.

16 MS. EIG: From a preservation point of

17 view by locating the building there the Olmstead

18 Walk which is curved at the northern end and

19 which had not been previously accommodated was

20 allowed to fulfill its original plan which was a

21 preservation benefit.

22 MR. BELL: So, like many things in the

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1 plan it's not just one criteria. You're looking

2 at a wide variety of things to balance strategies

3 and outcomes. And that's one of the things about

4 this plan that was so sophisticated, that it does

5 a great deal of many of those things.

6 MS. FERSTER: So let me just follow

7 up, Ms. Eig, about her point then just to be

8 clear.

9 So the Olmstead Walk is in your 2014

10 report you indicate the Olmstead Walk is a

11 contributing feature but of supporting

12 significance.

13 So, like the below ground cells.

14 That's correct, right?

15 MS. EIG: Because of its integrity.

16 And when the decision was made that it could be

17 reconstructed it's of significance but the

18 integrity was very poor. In parts it doesn't

19 exist.

20 MS. FERSTER: I guess I'm confused

21 then because you have -- in your 2014 report you

22 have separate assessments of both integrity and

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1 significance. So you had separated them in the

2 two, the way I read the report --

3 MS. EIG: They were brought back

4 together. And if you understand as I did testify

5 the preservation report was recommendations. It

6 was not based on a specific development. And it

7 took into account that there would be changes.

8 And some of my recommendations were

9 not followed as I think everyone at this table

10 would have to say that they didn't get everything

11 they wanted.

12 This is a very complex sophisticated

13 plan that optimizes the considerations.

14 MS. FERSTER: Understood. I'm just

15 still trying to wrap my brain around the idea

16 that the hierarchy of in your Appendix I of the

17 2014 report.

18 MS. EIG: That was not necessarily

19 followed. It was my recommendation.

20 MS. FERSTER: I understand that. I

21 understand that. But it seems to me that from a

22 historic preservation standpoint you do two

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1 things.

2 One is you decide what is a key

3 supporting or non-contributing element to the

4 historic significance of the site, and then you

5 assess the integrity.

6 MS. EIG: No, you're at a lower level

7 than I was. I'd already determined what's

8 contributing and non-contributing. We were at a

9 relative level of significance.

10 Plus I think that the Historic

11 Preservation Office was very adamant that the

12 Olmstead Walk be included as a character defining

13 feature because of its identity.

14 And it was a very good recommendation.

15 The board completely voted with that.

16 MS. FERSTER: Right, and I'm just,

17 again, I don't want to make this more complicated

18 because it really is a very simple question.

19 Because it concerns me and it raises

20 the question of the underground cells, for

21 example, which you indicated in your report were

22 of supporting significance, not key significance.

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1 And so it occurred to me that was the

2 deteriorating condition of the cells a factor to

3 the downgrading of them in terms of the

4 significance of the site.

5 MS. EIG: I think that I did testify

6 that there were three criteria that were used

7 that were based on the landmark application that

8 had been submitted 20 years ago.

9 We did not try to rethink that or

10 argue the decision. We went right by what they

11 said was the significance and that was how it was

12 landmarked.

13 And that was used as the basic

14 significance. So not every element is

15 significant in all three aspects.

16 MS. FERSTER: Right, I understand

17 that.

18 MS. EIG: So, the visibility of the

19 cells moved them to a lower position.

20 MS. FERSTER: Okay. That's what I

21 guess -- to better restate my question it would

22 be if the cells were in mint condition, none of

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1 them were deteriorated, would they still be

2 supporting significant, or would they --

3 MS. EIG: Yes.

4 MS. FERSTER: And that would apply to

5 basically everything in the site including the

6 service courts. The level of deterioration

7 doesn't affect its hierarchy or relevant

8 significance.

9 MS. EIG: No. There's hierarchy and

10 then there's integrity. And then together that

11 creates the final assessment. Both pieces.

12 MS. FERSTER: I understand. Obviously

13 I'm not making my point very clearly because I'm

14 asking a very simple question.

15 You identified certain features as of

16 contributing significance and certain features as

17 of non-contributing --

18 MS. EIG: No, everything was

19 contributing.

20 MS. FERSTER: Okay. So certain

21 features as supporting.

22 MS. EIG: Correct.

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1 MS. FERSTER: Supporting and key. So

2 that was your relative level of significance.

3 And I guess what I'm trying to

4 understand is the extent to which that

5 deterioration of any of those features affected

6 your determination of their relative level of

7 significance.

8 MS. EIG: Integrity does not affect

9 their relative level of significance.

10 MS. FERSTER: Thank you. That's it.

11 That's all. That was all I was asking.

12 Okay. I would like to go to cells 14

13 and 28 for a minute because there's several

14 witnesses, I think Ms. Eig and others who

15 clarified that the intention is certainly to

16 preserve cells 14 and 28 absent unanticipated

17 events, that it is your intention to preserve

18 them.

19 And so that's correct?

20 MS. EIG: The full cell 14 is proposed

21 for preservation and part of cell 28.

22 I think the testimony was that it was

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1 more than just the intention, it's the definitive

2 plan. The plan includes the preservation as I

3 just stated.

4 MS. FERSTER: Okay, here's my question

5 and that is is that I have the demolition permit

6 in front of me that was issued on December 2,

7 2016. And there are no conditions associated

8 with this demolition permit.

9 MS. BROWN: Demolition, that's not

10 part of the record on direct.

11 MS. FERSTER: Well, I think that the

12 fact that you say that you intend to preserve the

13 plan and yet a demolition permit -- preserve

14 those cells and yet a demolition permit was

15 issued that it does not.

16 MS. BROWN: There is no direct

17 testimony related to that permit and if you want

18 to talk about it in your case in chief ---

19 DR. BYRNE: So I take it this in the

20 nature of impeachment.

21 MS. FERSTER: You know, it goes beyond

22 that, and perhaps I better make a proffer because

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1 I anticipate lots of objections here.

2 So, let me say that one of the issues

3 that the D.C. Court of Appeals was concerned

4 about was validating to other entities the

5 preservation protections that were decided make

6 this project a project of special merit.

7 And on December 2, 2016 a demolition

8 permit was issued that is not -- doesn't appear

9 to be in any way conditioned.

10 And this has been -- and I understand

11 that the applicants are going to view anything

12 going to the demolition permit that was issued as

13 beyond the scope of anybody's testimony, but I

14 think it's important that I be allowed to delve

15 into that.

16 And the reason I think it's important

17 is that there's nobody else who can testify to

18 this, right.

19 I can't produce a witness. I don't

20 have the power unless you want to allow us to

21 subpoena somebody from DCRA or Mr. Thakkar and

22 produce him -- Mr. Kenner, ask them to be one of

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1 our witnesses so that I could query them as a

2 hostile witness so that exactly what happened

3 when this demolition permit was issued, why it

4 wasn't conditioned appropriately in order to

5 allow the preservation of the things that

6 applicants said that they would preserve.

7 Why no construction permit was

8 apparently issued simultaneously with the

9 demolition permit which is contrary to the

10 Preservation Act.

11 If nobody here -- I understand

12 nobody's going to testify about that. It is

13 definitely beyond the scope of perhaps all of the

14 direct testimony, but if nobody here is going to

15 -- I have a number of concerns and questions that

16 go to what is going to happen after the Mayor's

17 Agent issues his order, your order.

18 DR. BYRNE: So is your concern that

19 they will not follow the limits of the project

20 that would be cleared for the department.

21 MS. FERSTER: I clearly think the

22 demolition permit that was previously issued

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1 raises a serious question about whether or not

2 they're going to comply with the requirements of

3 this statute and the commitments that they

4 provided here.

5 So if none of the witnesses today will

6 answer my questions I would ask that I be allowed

7 to call as part of my case an appropriate D.C.

8 government employee who can answer questions

9 about this demolition permit.

10 MS. BROWN: And I would completely

11 object to this line of questioning. This permit

12 is well beyond the scope of the specific permit

13 that's before you today, the demolition for the

14 underground cells, and for the subdivision.

15 Anything outside of that is extraneous

16 and beyond the scope of this hearing and I think

17 we need a clean line dividing that.

18 DR. BYRNE: So, the concern as

19 expressed by Ms. Ferster is that the applicants

20 will not abide by law and will tear down stuff

21 that is not permitted under whatever order comes

22 down.

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1 And I don't know that that really --

2 I don't know how to deal with that. It's not

3 part of the application process.

4 It seems to me to be an issue that

5 needs to be taken up independently with I guess

6 DCRA.

7 MS. BROWN: It's completely an

8 enforcement issue.

9 DR. BYRNE: So, I know nothing about

10 the permit. If it was inappropriate then it

11 never should have been issued.

12 But I don't know that it's appropriate

13 for you to then impugn what they're going to do

14 that's within the scope -- when we say this is

15 the scope of their rights that they're going to

16 go outside of that.

17 I just don't think that that's really

18 appropriate for today, for this hearing.

19 MS. FERSTER: So you're sustaining the

20 objection.

21 DR. BYRNE: I think so.

22 MS. FERSTER: Are you sure?

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1 DR. BYRNE: Yes.

2 MR. OTTEN: Mr. Byrne, can I just make

3 a clarifying question? You, as I understand in

4 terms of the posture of the administrative

5 review, have to sign off on the demolition of

6 parts or all of the site if that was that

7 question, but parts of it certainly.

8 DR. BYRNE: I have to clear the permit

9 based upon a finding of special merit consistent

10 with purposes ---

11 MR. OTTEN: Right. And as Ms. Ferster

12 just pointed out this permit has been issued.

13 And I don't think you've cleared it. And I think

14 that's why this is being raised now.

15 DR. BYRNE: Well, then if the permit

16 -- so the permit, a permit could have been issued

17 before the court of appeals vacated the decision.

18 I think that's correct.

19 MS. BROWN: We don't know what it is

20 because it's not in evidence. And the reason

21 it's not in evidence, because it doesn't belong

22 in this hearing.

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1 And if there is an objection to the

2 demolition permit there's a whole separate

3 process for the DCRA to appeal the issuance of a

4 permit. And that's not here.

5 DR. BYRNE: I think that makes sense.

6 I don't think that any kind of enforcement error

7 if there was one, I haven't seen the document, is

8 relevant to what we're doing here unless --

9 MS. FERSTER: Well, I would like to

10 offer this again as impeachment of the professed

11 good intentions of the applicants in this case to

12 ensure that all the elements they're promising to

13 preserve will be preserved.

14 DR. BYRNE: Okay, let's hold that for

15 later then because I think -- I have to think

16 about how to deal with that.

17 MS. FERSTER: So I have another

18 question that undoubtedly the applicants will

19 object to as well. So before I start launching

20 into it.

21 One of the issues before you is

22 whether or not there are alternatives that could

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1 preserve more of the essential elements of the

2 project without -- while achieving the special

3 merit benefits.

4 And I do have some questions actually

5 about what's going on at the design phase

6 actually.

7 At what level of design are they at.

8 They're representing that this project is one of

9 special merit, represents exemplary architecture

10 and I have a series of questions about what's

11 going on in terms of level of design, phasing and

12 permitting. So I guess I would ask, I assume

13 nobody testified to that but I would like to ask

14 a series of questions about that.

15 DR. BYRNE: So there's -- we are

16 passing upon a project that has been put forward

17 as it's described in the documents.

18 And I don't know what more there is to

19 argue about that. What would be missing from

20 just passing on the application to present?

21 MS. FERSTER: Well certainly in terms

22 of the exemplary architecture.

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1 DR. BYRNE: To the extent the

2 architecture is not complete.

3 MS. FERSTER: That's correct.

4 DR. BYRNE: Okay. Then that weakens

5 the case for exemplary architecture.

6 MS. FERSTER: Right. So I would like

7 to ask questions about the status of the design

8 process and drawings relating to that in terms of

9 that issue.

10 MS. BROWN: And I would object because

11 the plan before you is the master plan. It is

12 what it is. And to go down this path of trying

13 to figure out have there been more design

14 revisions to it, it doesn't matter.

15 This is the plan that's before you

16 today.

17 DR. BYRNE: And the plan does not

18 specify the final designs. We're very far from

19 the final designs.

20 MS. BROWN: The new construction

21 permit is not before you. What is before you is

22 the special merit on the demolition --

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1 DR. BYRNE: Exemplary architecture is

2 part of the argument.

3 MS. BROWN: Absolutely.

4 DR. BYRNE: And what I think you're

5 saying is that I have to evaluate that on the

6 basis of what's been presented to me.

7 And insofar as it doesn't have

8 complete drawings of final buildings that's a

9 factor to be considered in assessing it.

10 But I don't know that it's --

11 MS. FERSTER: I just want to ask them

12 what the status of design is so that -- as you

13 said it is a factor.

14 DR. BYRNE: Well, that sounds like a

15 fairly harmless question.

16 MS. BROWN: It is harmless. I just

17 want to make sure I understand how these things

18 work and that one question leads to another.

19 Once we start answering it then we open the door.

20 That's why I want to make sure that we

21 answer one, we don't get six more on this

22 harmless question.

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1 And I think it's pretty standard in

2 these special merit cases to have concept plans.

3 And what is before you is it.

4 And we know that it has to go back to

5 the historic preservation for -- HPRB for final

6 review. That's their job.

7 MS. FERSTER: Let me start asking and

8 then please start objecting.

9 DR. BYRNE: Go ahead and ask the

10 question.

11 MS. FERSTER: So, what level of design

12 has been completed for each of the phases of the

13 projects.

14 MR. THAKKAR: I'll take that. The

15 design as put forth in the PUD before the Zoning

16 Commission that was originally approved is the

17 level of design that has been undertaken to date.

18 I do want to note that both the HPRB

19 and the Zoning Commission spent an incredible

20 amount of time in hearings on the architecture on

21 each building, looking at townhouses and how they

22 relate to multifamily and how that relates to

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1 buildings across the street.

2 So Matt, you can maybe provide more

3 detail, but that's the level of architecture that

4 was provided.

5 Everything that the Mayor's Agent is

6 seeing is where we are with design. And there's

7 been a lot of commentary and other commentary on

8 that level of design.

9 MS. FERSTER: And has the Mayor's

10 Agent been provided with the level of design you

11 provided the Zoning Commission?

12 MS. BROWN: They're the exact same

13 drawings. And I'm jumping in to answer this

14 because I think this is the door that's starting

15 to open.

16 The plans that have been submitted to

17 the Zoning Commission, they are the same plans

18 that have been submitted here.

19 And we can't change anything in the

20 Mayor's Agent drawings because it will affect the

21 Zoning Commission and vice versa. They go hand

22 in glove.

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1 MS. FERSTER: That wasn't my question.

2 I guess the question is what remains to be done

3 beyond what you've submitted to the Mayor's Agent

4 and to the Zoning Commission in terms of level of

5 design.

6 I'm not an architect or a construction

7 person so I don't know that answer to that

8 question. That's why I'm asking.

9 DR. BYRNE: Can you answer it in a

10 general way?

11 MR. BELL: In a general way once

12 approval is obtained through the Mayor's Agent we

13 would have to go back and get approval from the

14 preservation office for final design.

15 MS. FERSTER: So that's the next step

16 is final design.

17 MR. BELL: Typically what you do is

18 you take the drawings probably through DD and you

19 ask for a preliminary review with the Historic

20 Preservation Office, and they make comments, and

21 then you submit them for final design.

22 And they do look back at what was

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1 submitted as approved as a basis for judging

2 coherence with that.

3 So if there are changes they note them

4 and tell you about them. And you talk about

5 them. Generally there aren't changes.

6 MS. FERSTER: Generally there are.

7 And what level -- there are not.

8 MR. BELL: No. You have to basically

9 stick by what you've submitted.

10 MS. FERSTER: Okay. But you're going

11 to a finer level of design in the final plans.

12 MR. BELL: You have to make a set of

13 construction documents and that requires detailed

14 development.

15 MS. BROWN: I think that we need to

16 cut this off at this point because we've answered

17 all the design development questions that are

18 irrelevant because it's part of the proceeding.

19 (Simultaneous speaking.)

20 DR. BYRNE: -- because that seems to

21 me to be a complete answer. But I --- Ms.

22 Ferster, are you done with that line?

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1 MS. FERSTER: Well, I was going to

2 follow up and say in terms of your timeline that

3 you identified if there are some deviations

4 between the approved design concepts that were

5 submitted here, the final plans, what happens.

6 How are those reconciled. And does it come back

7 to the Mayor's Agent.

8 MS. BROWN: I think that's a question

9 for her to ask her staff.

10 DR. BYRNE: That's a staff question.

11 (Simultaneous speaking.)

12 MS. FERSTER: The court of appeals

13 specifically said the Mayor's Agent cannot defer

14 to other agencies including HPO for its

15 responsibilities.

16 DR. BYRNE: Yes, but my

17 responsibilities don't go to new construction,

18 they go to demolition of a subdivision.

19 MS. FERSTER: Okay, and they go to

20 this project of special merit, and the argument

21 that it's consistent with the purposes of the

22 act.

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1 DR. BYRNE: Right. So that if I

2 approve a project of special merit based on

3 exemplary architecture and then something

4 completely different goes to the -- something

5 substantially different goes to the HPRB that's

6 not -- you can't do that. They can't proceed

7 with the demolition if the basis for the approval

8 is exemplary architecture which has changed.

9 MS. FERSTER: And who makes that

10 judgment given the fact that it's possible that

11 there are changes that you might not consider

12 significant enough to warrant to bring to the

13 Mayor's Agent?

14 MS. BROWN: And I need to ask who

15 you're directing that question to. That's a

16 legal conclusion that you're asking from the

17 applicants.

18 MS. FERSTER: Excuse me?

19 DR. BYRNE: It would be a question for

20 the HPO staff to I think in the first instance.

21 MS. FERSTER: Will the HPO staff be

22 testifying today?

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1 DR. BYRNE: I don't know.

2 MS. FERSTER: If they do I will ask

3 that of the HPO staff.

4 So let me continue to work backwards

5 here. Okay, Mr. Thakkar. Before you testified

6 you kind of made a point where you said that

7 Vision McMillan Partners not the District of

8 Columbia is paying for the -- and you

9 specifically said appeal work.

10 Were you referring to the D.C. Court

11 of Appeals work?

12 MR. THAKKAR: I was referring to since

13 the remand was issued for both the Zoning

14 Commission and the Mayor's Agent Vision McMillan

15 Partners has been funding the -- that's what I

16 call the appeal work.

17 MS. FERSTER: The soft costs.

18 MR. THAKKAR: Attorney's fees.

19 MS. FERSTER: Okay. And so that is

20 starting in December 2016 VMP is assuming those

21 costs?

22 MR. THAKKAR: I don't know the exact

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1 date but for that body of work.

2 MS. FERSTER: And you -- and I think

3 I've written this down in my notes, Mr. Thakkar,

4 in response to your testimony that a number of

5 people did present arguments about your very

6 firmly held belief that this project should be

7 approved as being consistent with the purposes of

8 the Preservation Act which would be an

9 independent basis for approval other than the

10 special merit. Is that your argument?

11 MR. THAKKAR: That is one of our

12 arguments.

13 MS. FERSTER: Okay, so why didn't you

14 bring this really great argument previously

15 before the Mayor's Agent?

16 MS. EIG: I've done Mayor's Agent

17 hearings since I think it's 1981. The use of the

18 consistent with the purposes of the act and/or

19 special merit was fairly common.

20 However, the Victor Building case, the

21 D.C. Preservation League threatened to sue on the

22 basis that there was no possibility that

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1 consistent with the purposes of the act could be

2 real.

3 And that threat was very intense --

4 I'm putting my own words on it. Subsequently

5 there were one or two, I don't know how many

6 cases that were proceeded.

7 But it became very clear that the

8 Preservation League was going to cause problems

9 in cases where they could be special merit. They

10 only needed to be one, they didn't need to be

11 both consistent and special merit.

12 That purpose started to just not be

13 used because it wasn't necessary and it was

14 painful to have to go through the appeal that

15 then would be found to be wrong, but the fact is

16 delay would happen. They would not succeed in

17 court, but the fact is that delay happened. So

18 that it stopped being used.

19 That was the way it was and then this

20 court of appeals decided that we should have been

21 using consistent with the act which does make

22 sense because it was in the act, it's in the law

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1 that this is one of the possibilities of what you

2 can do and there's certainly as I said examples

3 that historically we had used to explain what was

4 consistent with the act.

5 So we were actually -- personally I

6 was very grateful that the court had made that

7 decision to clarify that issue that that was a

8 reasonable approach to seeking a Mayor's Agent

9 hearing.

10 MS. FERSTER: So you view the D.C.

11 Court of Appeals as inviting you to go and make

12 this argument.

13 MS. EIG: No, clarifying it,

14 clarifying it. And I think that they did -- I'm

15 not the lawyer here, I think Ms. Brown will have

16 to answer. I think it was clear that they said

17 that they should -- this case should be heard on

18 those grounds. I am a lay person on this.

19 MS. FERSTER: You are. I would

20 suggest that perhaps it was more in response to

21 the Mayor's Agent order that invited you then to

22 --

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1 DR. BYRNE: So I've already ruled.

2 I'm clear as day that this issue is appropriate

3 for this hearing.

4 You can argue what you want to the

5 court of appeals about whether they waived it or

6 something, but I'm absolutely clear that --

7 MS. FERSTER: It's not the waiver

8 issue that I'm --

9 DR. BYRNE: Well, waiver, res

10 judicata, whatever.

11 MS. FERSTER: No, this is not a res

12 judicata. This is simply an interpretation that

13 the D.C. Court of Appeals -- with all due respect

14 I think when you presented this issue and invited

15 the applicants to make this new argument you were

16 misinterpreting what is dicta in the court of

17 appeals language as a whole.

18 DR. BYRNE: I don't think it is dicta.

19 You're not going to get anywhere arguing that.

20 MS. FERSTER: Not with you.

21 DR. BYRNE: Not with me.

22 MS. FERSTER: So I guess my question

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1 would be did this idea -- one month between when

2 the Mayor's Agent issued his order and when the

3 identifying issue number one, this is to anybody,

4 and when the D.C. Court of Appeals issued this

5 decision was this language over the significance

6 of which or the precedential value of which we --

7 is disputed here.

8 The minute that decision came down did

9 you say yes, let's go and make a consistency with

10 the purposes of the act, or was this new strategy

11 formulated after the Mayor's Agent issued his

12 order?

13 MS. BROWN: I would --

14 DR. BYRNE: Sustained.

15 MS. FERSTER: Okay. Mr. Bogorad,

16 let's see. I have a couple of questions about

17 your testimony.

18 You talk about over a 30-year period

19 the project will generate over $1 billion in net

20 fiscal benefits. And you're saying that's

21 subtracting $874 million in expenditures.

22 MR. BOGORAD: No, you misunderstood.

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1 The statement is $1.183 billion in district

2 revenues. So that's gross. That's all the

3 revenues. And then a net fiscal benefit after

4 taking account of expenditures of $874 million.

5 MS. FERSTER: Right. And my question

6 is what are those $874 expenditures and whose

7 expenditures are they?

8 MR. BOGORAD: Okay, first of all

9 you're still misunderstanding my sentence. There

10 are three things. I didn't quantify it but I can

11 do it in a second.

12 So there's the gross revenue which is

13 all of the taxes and other things that would come

14 to the district as a result of this project.

15 That's $1.183 billion.

16 Just doing it off the top of my head

17 it looks like about roughly $300 million of

18 expenditures which to get a net impact you take

19 that out of the $1.184 billion, this is what the

20 judge asked about earlier, and then the remainder

21 is the net impact, that's what the district gets

22 after the expenditures which were -- to the

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1 project are taken into account. So that's $874

2 net.

3 To answer the question of what are

4 those expenditures it's what I explained earlier

5 to Professor Byrne which is that these are an

6 allocation of various budget items in the

7 district budget as is done in these kinds of

8 studies when the net impact is calculated that

9 are estimated to be attributable to a particular

10 project, particular housing, some school kids,

11 those costs are allocated, employment types of

12 things.

13 It's assumed that you'd have a certain

14 share of police costs and fire costs and other

15 things of that sort that get allocated. And

16 that's what those $300 million or so are.

17 MS. FERSTER: Okay. And so do the

18 District of Columbia revenues that are being

19 actually directly spent on the preparation of the

20 site for example, do they factor into that $874

21 million?

22 MR. BOGORAD: No, this has nothing to

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1 do with costs of the development or anything of

2 that sort.

3 MS. FERSTER: Okay. So, you had -- in

4 your testimony you talked about -- and I need to

5 pull that testimony actually out, your written

6 testimony.

7 You talked about a number of projects

8 that you believed offered both fiscal benefits in

9 terms of tax revenue and employment benefits that

10 were you say comparable to the fiscal employment,

11 the other projects.

12 And then you mentioned them and you

13 felt that the benefit that you've identified for

14 the McMillan development were in excess of those

15 projects.

16 And I wrote down the wharf project,

17 the D.C. United project, the Shops at Dakota

18 Crossing, St. Elizabeth's Hill East, and Rhodes

19 Tavern as projects that you felt were -- offered

20 lower fiscal and employment benefits than this

21 project, lower numbers.

22 MR. BOGORAD: Right. Just to clarify

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1 the first part of your question though is not

2 correct. I did not say that these have

3 comparable benefits.

4 I specifically said these are some of

5 the many projects that do not have as much

6 benefit as this project. And undoubtedly some

7 others that have a lot of -- in the same range of

8 positive.

9 MS. FERSTER: So you were not offering

10 these as projects that were comparable in either

11 land area or gross square feet of development to

12 the McMillan project?

13 MR. BOGORAD: I wasn't paying any

14 attention to that. There were other projects on

15 the site that you had mentioned in your letter.

16 You had said -- you picked out a few including

17 actually some of the ones which when I looked at

18 the impact that were on that website they were

19 not nearly as positive as McMillan was.

20 MS. FERSTER: Okay. But you didn't

21 look and see whether they were comparable in

22 terms of size or gross square feet.

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1 MR. BOGORAD: No, I didn't.

2 MS. FERSTER: Okay. Moving backwards.

3 Let's go to Mr. Weers. There's a particular

4 slide that I was interested in that I'm going to

5 call your attention to in your presentation.

6 And that would be slide number -- I

7 guess it's on page 184, it's called off campus

8 healthcare real estate.

9 MR. WEERS: Yes, ma'am.

10 MS. FERSTER: I'm sorry, that wasn't

11 the slide. Okay, here's the slide I'm looking

12 for. Page 175, healthcare real estate landscape.

13 And I believe you referenced this

14 slide in the context of your discussion about how

15 the District of Columbia has an aging healthcare

16 infrastructure and it hasn't been improved -- no

17 new healthcare facilities have been constructed

18 and that it therefore needs this new healthcare

19 facility that you're building qualifies as

20 special merit.

21 Is that a gross summary of the

22 context?

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1 MR. WEERS: No, ma'am, it's not. That

2 claim was made with the prior slide. The point

3 related to this slide was about healthcare real

4 estate in proximity to the hospital. So off

5 campus healthcare real estate likes to be next to

6 hospitals.

7 MS. FERSTER: Oh, gotcha. Okay. So

8 let's go to the prior slide then and that's the

9 slide where you talk about -- let's stay on this

10 slide actually because in the context of your

11 point that in the District of Columbia which you

12 made in the context of the prior slide you know

13 has increased population, no increased or

14 improvements in healthcare facilities, I'm

15 looking at this slide on page 175 and it looks to

16 me like where the greatest -- there are no

17 healthcare facilities east of the river. Is that

18 correct?

19 MR. WEERS: No, that's not correct.

20 There's a lot of red dots east of the river.

21 MS. FERSTER: Okay, yes, I see that.

22 And so in terms of size though I guess -- I don't

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1 know why I just blanked out on that -- in terms

2 of size these are little healthcare facilities,

3 right?

4 MR. WEERS: Yes, ma'am.

5 MS. FERSTER: Okay. So the big

6 healthcare facilities are not east of the river.

7 MR. WEERS: There are some. I would

8 point to United Medical Center is pretty big.

9 MS. FERSTER: Okay. So two?

10 MR. WEERS: Yes, ma'am.

11 MS. FERSTER: So compared to the rest

12 of the city where there are much larger

13 healthcare facilities it seems to me that there's

14 more of a need for improved healthcare facilities

15 east of the river, would you agree based on this

16 slide?

17 MR. WEERS: No, ma'am, I would not.

18 I think what you're hearing from me as a point

19 about the overall aging infrastructure of the

20 city it is citywide.

21 The healthcare infrastructure across

22 the city is old and it all needs to be upgraded I

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1 think is what you're hearing me saying.

2 MS. FERSTER: Okay. So your point was

3 not that there are not enough healthcare

4 facilities for example anywhere in the District

5 of Columbia, your point was that it's aging.

6 MR. WEERS: It's both. There is not

7 enough and it is all old.

8 MS. FERSTER: Okay. In terms of our

9 project area it is both in our project area? Are

10 there not enough healthcare facilities, or are --

11 MR. WEERS: There is not enough. And

12 I think the point of there is not enough when you

13 talk about McMillan specifically is seen in the

14 day-to-day activities at the Washington Hospital

15 Center and the systems that are there.

16 There are too many people and too much

17 stuff going on inside of the boxes. They need

18 more. Which is why I think net expansion is a

19 good thing at McMillan.

20 But if I could, and I don't want to

21 jump but I think this is where you're going so I

22 might as well talk about it, right.

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1 I feel like we have talked about the

2 concept of whether or not we should be

3 concentrating additional healthcare uses or

4 dispersing healthcare uses throughout the city.

5 And there's a suggestion that somehow

6 additional development at McMillan where there's

7 already a concentration of healthcare is an

8 either/or and that that would somehow take away

9 from the idea that it could be dispersed

10 throughout the city and it's simply not true.

11 So if that is your question I

12 appreciate it, and I think we should talk about

13 it because these two things are not mutually

14 exclusive.

15 MS. FERSTER: I actually have a

16 different question but thank you for that

17 thought.

18 My question was what I hear you say in

19 your response is that the Washington Hospital

20 Center as a particular healthcare provider is

21 feeling pressed by the constraints of its

22 infrastructure and its campus.

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1 But that doesn't to me say anything

2 about the larger needs in this area where I see a

3 lot of other healthcare facilities in the

4 immediate area.

5 MR. WEERS: I am making statements

6 about both. I am making a statement about the

7 overall system, and then I'm drilling down to a

8 small part of the system and making a consistent

9 statement about the small part.

10 MS. FERSTER: Okay. So that's your

11 testimony in terms of the citywide issue.

12 So perhaps I should ask a different

13 question. I guess I would ask you more

14 specifically aside from the constraints that the

15 Washington Hospital Center is experiencing as a

16 result of the physical limits of its campus what

17 evidence do you have that in the larger area

18 surrounding the site that include a number of

19 other healthcare facilities that the healthcare

20 needs of that population of the city is not being

21 adequately met?

22 MR. WEERS: So, I think one example of

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1 that information is on the slide right before the

2 slide you are talking about.

3 So, the level of healthcare facilities

4 per capita in Washington, D.C. is at the bottom

5 of the list.

6 The idea being we do not have enough

7 supply in the city for the population that we

8 have and thus if we are also a growing city and

9 more people are moving in and we are already

10 ranked at the bottom of the list that problem is

11 getting worse.

12 I think what I am also making the

13 point of though is not illuminated on that slide.

14 It is the facilities themselves are very old. So

15 they are old, there's not enough of them, and we

16 don't build them fast enough.

17 While we are in a growing city and we

18 are putting more demands on the facilities that

19 we have.

20 MS. FERSTER: Okay, because this slide

21 doesn't really answer my question because this

22 slide talks about the overall healthcare

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1 facilities versus population ratio for the

2 entirety of the District of Columbia.

3 And I'm really particularly looking at

4 the needs of this area surrounding the McMillan

5 site.

6 Do you have evidence or data that

7 deals with the ratio of population to healthcare

8 facilities in the McMillan area?

9 MR. WEERS: No, ma'am.

10 MS. FERSTER: Thank you. Okay, so you

11 very helpfully specified a number of outpatient,

12 clinical exam room, oncology, diagnostic

13 services, MRIs, mammogram, that type of services

14 that would be offered at the healthcare facility.

15 And perhaps it would be appropriate at

16 this point to ask you all of these services, most

17 of these services are services that would require

18 certificates of need from the District of

19 Columbia.

20 Have you contemplated applying for a

21 certificate of need?

22 MR. WEERS: So, yes, some of those

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1 services may require a certificate of need. And

2 if our tenants for the project decide to provide

3 services that require a certificate of need they

4 will go through that process.

5 Yes, we have contemplated it. It is

6 a part of our overall project schedule.

7 And when you're talking about parcel

8 1 healthcare facilities you're talking about

9 facilities that would be delivering at the

10 earliest in 2022. So, we see no problem with the

11 schedule.

12 MS. FERSTER: So, it's entirely

13 possible that an application for a certificate of

14 need could be denied by the District of Columbia

15 at that point and then they would not be able to

16 offer those services.

17 MR. WEERS: Yes, ma'am, that is

18 possible. What I would say as a more fulsome

19 answer is a part of the analysis that any

20 healthcare system is doing when they're making a

21 commitment of this magnitude is thinking about

22 those services, thinking about that certificate

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1 of need process, and making sure that they feel

2 confident that they will get through that

3 process.

4 When you talk about the large hospital

5 operators they're pretty good at this. And so

6 they're not going to make this decision and make

7 a commitment of this magnitude if they aren't

8 sure that they're going to make it through the

9 process.

10 But in a theoretical context, sure.

11 MS. FERSTER: And so is that -- since

12 you do not have an anchor tenant for this

13 building perhaps that is one of their concerns?

14 MR. WEERS: I don't believe so. I

15 spend a lot of time talking and negotiating.

16 MS. FERSTER: Okay, so would a main

17 tenant be willing to make the commitment to move

18 into a building where they -- which was

19 specifically designed to accommodate these types

20 of services that require licensure by the

21 District of Columbia without any caveat or

22 condition about their ability to get that

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1 licensure?

2 MR. WEERS: Yes, ma'am. It happens

3 all the time. It's part of the natural process

4 of how these buildings are developed.

5 MS. FERSTER: Okay. So you secure

6 your tenant and then they would -- would they

7 apply for that certificate of need after they

8 move in or before?

9 MR. WEERS: Before.

10 MS. FERSTER: And what if they're

11 denied? Would that affect your ability to retain

12 that anchor tenant?

13 MR. WEERS: So, in theory yes that

14 would be a problem. In the same way that if the

15 building fell down while we were constructing it

16 it would be a problem.

17 In the same way that if a meteor hit

18 the Earth before we finished constructing it it

19 would be a problem. There are a lot of

20 theoretical I would argue unrealistic things that

21 could happen that would be a big problem for us.

22 MS. FERSTER: And this may or may not

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1 be a question for you. It could be a question

2 for Mr. Thakkar or somebody else who has had a

3 longer involvement in this project.

4 Perhaps, Mr. Thakkar, since you are

5 the -- are you the project partner who has been

6 in this project the longest? You said 10 years?

7 MR. THAKKAR: I have been involved

8 since its inception.

9 MS. FERSTER: You were part of the

10 original team.

11 MR. THAKKAR: I was.

12 MS. FERSTER: Okay. And Trammel Crow

13 was not part of the original team.

14 MR. THAKKAR: Not at the original

15 inception, no.

16 MS. FERSTER: Okay. So, originally

17 you did not have a healthcare facility that was a

18 component of this project at that point.

19 Originally.

20 MS. BROWN: Can I ask the relevance,

21 please?

22 MS. FERSTER: Well, the healthcare

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1 facility is being presented here as a special

2 merit, a key need for the city and it just occurs

3 to me that the healthcare facility seems to be an

4 afterthought.

5 In that the District of Columbia

6 identified a development team that did not

7 include a healthcare facility. They picked a

8 development team that did not include a

9 healthcare facility so clearly the District of

10 Columbia at that point didn't particularly think

11 that that was a key benefit they wanted to offer.

12 MS. BROWN: And I'd say still it's

13 irrelevant because we've heard testimony from the

14 Deputy Mayor today and this team saying that it

15 is a need for the project and it's what's before

16 the Mayor's Agent.

17 DR. BYRNE: I think I agree with that.

18 I think I'm going to sustain the objection.

19 How long has the healthcare facility

20 been part of the planning process? Mr. Thakkar,

21 either one of you, but just to clarify the

22 healthcare facility has been part of the process

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1 for how long?

2 MR. THAKKAR: 2009. Eight years.

3 DR. BYRNE: Okay, thank you. And the

4 first application to the Mayor's Agent was in

5 2013.

6 MS. FERSTER: Mr. Thakkar, who is

7 Terry Eakin? He's the chairman of EYA?

8 MS. BROWN: Relevance?

9 MS. FERSTER: I'm going to hand you an

10 exhibit that was submitted to the Zoning

11 Commission so you are familiar with it --

12 MS. BROWN: Again, relevance. This

13 was not part of direct testimony.

14 DR. BYRNE: Where are we going with

15 this?

16 MS. FERSTER: I believe that Mr. Weers

17 and others have testified that the healthcare

18 facility is the economic driver of this project.

19 I understand that is the position

20 going -- that has been the position since the

21 healthcare facility component was added.

22 But suddenly on remand the healthcare

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1 facility becomes a special merit because of all

2 sorts of public needs. And this is a change.

3 And so I think I'm entitled to test at

4 this point was it added because it's the economic

5 driver of the project, or was it added because

6 the District of Columbia felt that there was an

7 important need to improve our aging healthcare

8 infrastructure and this would be an overriding

9 benefit of special merit.

10 MS. BROWN: And I think the premise of

11 the question is wrong in that she stated facts

12 that may not be factual.

13 And that is that it suddenly changed

14 when it came back down from the D.C. Court of

15 Appeals. And I think that the healthcare

16 facility was argued to the previous Mayor's Agent

17 as a component of special merit as well as the

18 medical district. So we have nothing new and

19 nothing to impeach.

20 MS. FERSTER: I think the Mayor's

21 Agent's decision is pretty clear that he didn't

22 see any evidence that it was a special merit

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1 benefit on its own, but that it was the synergy,

2 the economic synergy that the healthcare facility

3 offered.

4 So I imagine the Mayor's Agent had in

5 reconciling inconsistent evidence he would have

6 cited it.

7 DR. BYRNE: So my sense is that the

8 court of appeals asked me to get clear and to

9 make a clear ruling on whether the healthcare

10 facility was a project of special merit.

11 And my understanding is that the

12 applicants have then focused the presentation on

13 that question to try to argue that it is.

14 And it either is or it isn't. And I

15 don't think it really matters what happened in

16 2006 in regards to the project. It either is or

17 it isn't a project of special merit, an element

18 of special merit.

19 MS. FERSTER: I mean, I think I will

20 present this email later on then because part of

21 our proof is that special merit for the

22 healthcare center is just another sort of

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1 throwing things into -- an effort to retrofit

2 special merit onto a component that was never

3 intended to be special merit.

4 DR. BYRNE: I don't know if it matters

5 whether the parties intend something to be

6 special merit. It either is special merit or it

7 isn't.

8 MR. WEERS: And I'm sorry, but part of

9 the point that is being made as well is that the

10 addition of new healthcare facilities to a city

11 that does not have enough supply is a good thing.

12 Part of my testimony is that we have

13 not built a major healthcare facility in this

14 city since 2002. So the idea that somehow

15 someone is just deciding that healthcare is

16 important is not the point.

17 In 2007 we had the same level of major

18 healthcare facilities in this city as we do 10

19 years later. The existing buildings are just

20 older. So the need is greater.

21 MS. FERSTER: Okay. Well, let me see.

22 DR. BYRNE: So I'm now thinking about

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1 how long this is going to go. And I'm sort of

2 torn between two poles.

3 One is I'd like to think that we

4 wouldn't have to have -- obviously we're going to

5 have to have another later hearing and everybody

6 of course is very pleased with that.

7 And it's going to be Monday at 9 a.m.

8 I would like to think that we could conclude the

9 cross examination so that all these witnesses

10 would not have to come back because they're all

11 busy people.

12 But I don't -- so there is the -- Ms.

13 Ferster is not finished. I don't know how long

14 she'll take. Mr. Otten has not had a chance to

15 cross examine the witnesses.

16 So, I'm open to suggestions. I live

17 a relatively boring life. I can stay longer but

18 shall we go on for awhile?

19 MS. BROWN: My preference is that at

20 least we could get through FOMP's cross

21 examination today.

22 DR. BYRNE: Yes, I'm not suggesting we

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1 stop right now, but I'm just sort of -- we can

2 think about this a little bit more.

3 But we'll go on. Ms. Ferster, can you

4 estimate how much longer? Just I'm not going to

5 hold you to it.

6 MS. FERSTER: I have a number of

7 questions. I know that. So I mean, given Ms.

8 Brown's example of estimating I think I will try

9 not to do that.

10 DR. BYRNE: All right. Well let's

11 just go on for awhile and see till people start

12 to drop out.

13 MS. FERSTER: So, I did not have your

14 slides in front of me when you were testifying so

15 perhaps they are -- this question will be

16 answered in your slides.

17 But I understood that you said that

18 subsequent to the structural report from Silman

19 that was put in the record that Kirk Mettam

20 testified for the last year which was I guess

21 maybe the 2014 you indicated that you had done I

22 wrote down additional investigations have been

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1 performed.

2 And you said your findings have not

3 changed.

4 MR. THAKKAR: That's correct.

5 MS. FERSTER: So have your additional

6 investigations resulted in any kind of written

7 report or anything that you have provided to your

8 client?

9 MR. THAKKAR: We have provided

10 internal documents as part of the design process

11 but we have not issued anything.

12 MS. FERSTER: Okay. So I can rely on

13 the 2014 Silman report then in terms of nothing

14 has changed in that report.

15 MR. THAKKAR: Correct.

16 MS. FERSTER: Okay. A couple of

17 questions about some statements you made, you in

18 particular.

19 You talked about the different

20 techniques for reinforcing the cells in order to

21 allow for either some reuse or even just -- or

22 overbuild.

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1 And please correct me if I'm wrong but

2 did you say that in both of those situations that

3 those reinforcement techniques would -- and I

4 wrote down either both eliminate and destroy the

5 historic value of the cells.

6 Are you talking about only the

7 adaptive reuse without overbuild, or are you

8 talking about overbuild, or both?

9 MR. RUIZ: I'm sorry, can you repeat

10 that?

11 MS. FERSTER: Okay, so let's just talk

12 about adaptive reuse then without any overbuild.

13 Let's assume that there's nothing built over more

14 of the cells.

15 And I believe there are some cells

16 that are extant in the southern portion of the

17 site where there is no -- which will not be

18 demolished. Where the park is. Are there some

19 cells that will not be demolished that would

20 remain, or is everything going to be demolished?

21 MR. RUIZ: A portion of filter 28

22 overlay.

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1 MS. BROWN: I'm sorry, could I just

2 ask a point of clarification. You use the word

3 adaptive reuse option. And I don't know that he

4 used those terms.

5 MS. FERSTER: Let me just say we do

6 have -- let's just say you talked about in order

7 to preserve those cells without building anything

8 over them was it your testimony that they would

9 require reinforcement techniques that would

10 destroy the historic value of the cells.

11 MR. RUIZ: No, what I said was in

12 order to allow any occupancy on the topside would

13 require structural intervention.

14 MS. FERSTER: And that structural

15 intervention you said would destroy the historic

16 value of the cells.

17 MR. RUIZ: Not for a topside use, no.

18 MS. FERSTER: Okay. So when you said

19 destroy the historic value of the cells you were

20 more talking about the structural interventions

21 that would be required in order to build over the

22 cells.

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1 MR. RUIZ: Correct.

2 MS. FERSTER: And again when you say

3 would also destroy the plinth you mentioned that

4 the plinth would be destroyed by some of the

5 reinforcement techniques.

6 Again, were you talking about the

7 reinforcement techniques that would be necessary

8 to build over the cells, or just to render them

9 occupiable.

10 MR. RUIZ: That was in reference to a

11 question from Mr. Byrnes about whether you could

12 just build completely over. If you were to build

13 over a 150 feet stand you would destroy the

14 plinth because we do not have the depth needed.

15 MS. FERSTER: Okay. So, yes. It's

16 related to overbuild again. Okay. That was all

17 for you.

18 MR. RUIZ: Thank you.

19 MS. FERSTER: I have another question

20 for Mr. Weers and his slides.

21 Okay, so you -- this is a question

22 about the slides on page 184 of your booklet.

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1 And that talks about the off campus healthcare

2 real estate vacancy rate.

3 MR. WEERS: Yes, ma'am.

4 MS. FERSTER: Perhaps I misheard it,

5 but you were -- your point in providing this

6 slide was to show that there was a need for

7 healthcare real estate since there was a vacancy.

8 MR. WEERS: No, ma'am.

9 MS. FERSTER: Okay, thank you. Help

10 me understand this.

11 MR. WEERS: The point of the slide

12 that shows the off campus healthcare real estate

13 in our region is to highlight that the entire

14 region which is shown on this slide, so from

15 Dulles and Germantown to the west and north to

16 Bowie and Brandywine to the east and south is

17 only about 12.5 million square feet in total

18 region. Big picture, big geographic area.

19 When you zero down into the District

20 of Columbia proper the total off campus

21 healthcare real estate market is only about 1.3

22 million square feet.

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1 So my point is simply to highlight the

2 size of the market and to highlight that the off

3 campus healthcare real estate market in the

4 entire city is only 1.3 million square feet.

5 My further point is then to highlight

6 that the largest individual building within that

7 1.3 million square foot market in the District of

8 Columbia is 160,000 square feet.

9 The final point being the market shows

10 us that healthcare real estate when left to its

11 own devices and not being done the way that we're

12 doing it at McMillan, the largest project ever

13 build in the city is 160,000 square feet.

14 MS. FERSTER: Okay. So I was actually

15 interested in the vacancy rate that you also

16 provided, that there's a vacancy rate in this

17 healthcare real estate of 13.8 percent in

18 downtown D.C. and 17.41 percent in northwest D.C.

19 Chevy Chase.

20 I'm just curious because in the very

21 next slide you are talking about how there's

22 vacancy in general office meaning a softness in

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1 the market at 12.6 percent. So it seems like

2 there's more vacancies in the healthcare real

3 estate market in the District of Columbia than

4 there are in the office market.

5 Can you explain that discrepancy and

6 why it's a weakness in the market in the general

7 office that level of vacancy, but somehow not a

8 weakness in the market in the healthcare real

9 estate?

10 MR. WEERS: It's actually a very good

11 point. I'm glad you asked it.

12 I would not suggest nor did I say that

13 the vacancy rates in the off campus healthcare

14 real estate slide that are highlighted at 13.8

15 percent and 17.4 percent are not weakness. They

16 are in fact weakness.

17 I think that this actually highlights

18 the point that if you're not doing the

19 development program that we are doing at McMillan

20 which is large scale, which is a mix of big

21 anchor tenants, small to mid-size organizations,

22 and then smaller tenants all combined together in

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1 a campus that this is not a feasible idea.

2 So part of the point though it is a

3 tertiary part of the point, but part of the point

4 is if you don't do the big idea that we are doing

5 and you try to do some small building which is

6 what the population of off campus healthcare real

7 estate in the District of Columbia is it's not a

8 good time in the market.

9 The very nature of these projects are

10 very different. When you're talking about the

11 buildings that make up this population that is

12 highlighted on this slide you're talking about

13 small-scale medical office buildings.

14 What we are talking about is a big

15 campus, a mix of large anchor tenants that have a

16 whole range of services from outpatient

17 facilities to research labs to admin space mixed

18 in with mid-sized organizations, mixed in with

19 small doctor's offices. And these campuses have

20 a vibrancy all their own.

21 It's actually a general development

22 principle you can see in non-healthcare real

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1 estate. You see it right now at the Shops at

2 Dakota Crossing. It happens in retail all the

3 time.

4 When you do a big large-scale project

5 and you get big anchor tenants like a Costco or a

6 grocery store or someone else they have gravity

7 all their own which is a completely different

8 thing than developing a small individual building

9 which is what is made up of the population that

10 we're talking about in this slide here.

11 MS. FERSTER: Okay. Well, it seems to

12 me that you have very eloquently explained why

13 because of the creativity of this particular mix

14 of use you are able to make a healthcare facility

15 work in this otherwise soft real estate

16 environment.

17 But what does that say about the need

18 overall in the District of Columbia for

19 healthcare real estate?

20 I mean, the fact that you've managed

21 to come up with a combination of factors that

22 makes it a profitable for this project.

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1 MR. WEERS: So I think you're mixing

2 apples and oranges though there's nothing wrong

3 with mixing fruit.

4 I think that what you're looking at is

5 one tiny slice of the overall healthcare real

6 estate. This is a specific slice. It is the off

7 campus healthcare real estate which again is only

8 1.3 million square feet and it's really just a

9 collection of off campus medical office

10 buildings.

11 When we're talking about the overall

12 healthcare infrastructure of the city we're

13 talking about hospitals, we're talking about on

14 campus facilities, we're talking about a

15 significant amount of more real estate.

16 And the point of the need is that

17 these things that are doing a lot and are working

18 every day to treat people are really old and they

19 need to be upgraded and we need more of them.

20 And that is not at all refuted by a

21 13.8 percent vacancy rate in the six buildings

22 that make up this inventory in downtown D.C.

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1 MS. FERSTER: Thank you.

2 MR. WEERS: You're welcome.

3 MS. FERSTER: Okay. Ms. Eig. I'm

4 going to start out by asking you a -- actually,

5 before I do that I do have other questions. I'm

6 saving the best for last.

7 So the slides actually, the slides

8 that are part of -- and this could be for Ms.

9 Eig, it could be for anybody else really, but

10 there are a number of slides that were presented

11 of alternative development plans that dated from

12 2006 to 2012.

13 And I guess I would ask Ms. Eig were

14 you involved in the development of any of those

15 plans, those alternative plans that were

16 developed between 2006 and 2012?

17 MS. BROWN: I'm sorry. Did you

18 testify to the alternatives? Because I don't

19 think she is the appropriate person to answer

20 that.

21 MS. FERSTER: No. I actually think

22 it's irrelevant and I believe she did talk about

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1 alternatives so.

2 MS. BROWN:: But I think it's best to

3 direct those questions to the person who

4 presented the slides.

5 MS. FERSTER: Okay. Sure. That's

6 fine. Okay, who presented the slides?

7 DR. BYRNE: It was Mr. Bell.

8 CROSS-EXAMINATION

9 BY MS. FERSTER:

10 Q Okay, so Mr. Bell, was Ms. Eig

11 involved in the development of those plans?

12 A Which ones in particular?

13 Q 2000, the ones that were dated 2006 to

14 2012, I think it was.

15 A I entered the project in 2010.

16 Q Yes.

17 A And collaborated with her starting

18 that.

19 Q Okay, so was she involved in the,

20 let's see, how many slides are there from 2010 to

21 2011 and 2012. Did she collaborate in the review

22 of the slides that were, I guess, the 2012

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1 slides?

2 A Yes.

3 Q And how about the 2012 slide, the 2012

4 plan?

5 Q I just said yes.

6 A Oh, I thought you said 2010. So then

7 all the plinths post 2010, 2010, 2011 and 2012?

8 A Yes.

9 Q And so she reviewed them and did she

10 have an opinion about that?

11 A She did.

12 Q And what was that opinion?

13 A I don't think I can testify to her

14 opinion of those plans.

15 (Off microphone discussion)

16 Q Okay, while we're talking to Mr. Bell,

17 let's just continue with him. You talked about

18 your view that the plan is consistent with the

19 character of the defining features of the

20 landmark.

21 I wrote that down as part of your

22 testimony. And what of the defining features

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1 were you specifically referring to?

2 A The tripartite organization, the

3 plinth, the north and south service courts, the

4 silos, the regulator houses, the berm, the

5 Olmsted Walk. Q

6 Okay. And maybe this question is for Ms.

7 Eig, but whenever it refers to the plinth as

8 being one of the defining features in your 2014

9 report, where you identified the features of the

10 site and ranked them in terms of key or

11 significant key or supporting in terms of

12 significance. Does a plinth come in as

13 topography?

14 MS. EIG: I'm very glad you asked me

15 that question because I think you misunderstood

16 what I said earlier about the fact that I used as

17 the evaluation of significance the landmark

18 application that was written by others.

19 We went to their specific criteria, A,

20 B, and C, and that is what we used to rank the

21 relative level of significance. There are

22 questions in that report that we addressed. It

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1 did not necessarily represent what I as a

2 professional would have done or evaluated as

3 significant.

4 And in fact, I thought that the plinth

5 and the Olmsted Walk were critical defining

6 features and tried to convince others of that for

7 many years.

8 MS. FERSTER: Okay. Thank you. So

9 just refresh my recollection. I don't have that

10 2014 report in front of me. Was the plinth, is

11 that the same thing as what's called topography

12 in that report or is the plinth a separately

13 defined structure in that report?

14 MS. EIG: The plinth is the structure

15 that was built by the core of engineers.

16 MS. FERSTER: That's not my question.

17 I understand what you're referring to.

18 MS. EIG: And it creates a flat level

19 topography. Okay. That has a berm on the side

20 which is why that the topography of the two

21 streets changes but the berm remains level.

22 MS. FERSTER: Yes. My questions are

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1 so much more simple than that and it's probably

2 because I don't have the 2014 report in front of

3 me, but my recollection of the report, that

4 report, and I understand that you might use

5 different terms and you might not necessarily,

6 you know, use the same terms, but I'm wondering

7 where that report, the plinth is in Appendix I,

8 is identified in terms of, what it's called. Is

9 it called the plinth or is it called the

10 topography?

11 MS. EIG: The site resources includes

12 topography. The plane itself is considered a

13 landscape resource. So it's much more

14 complicated than you want it to be, I'm afraid.

15 MS. FERSTER: In Appendix I, it would

16 be identified under landscape resource?

17 MS. EIG: I believe that's correct.

18 I don't have a copy of that report. I'm sorry,

19 at this moment, I cannot remember everything that

20 we did.

21 MS. FERSTER: The --

22 MS. EIG: It was under a site. It was

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1 a site resource.

2 MS. FERSTER: A site resource. Oh,

3 that sheet. Okay. So does that report rank it,

4 the plinth, as a key or a supporting, this type

5 resource, that the plinth is identified in. Is

6 it considered a key or a supporting significance

7 to the site?

8 MS. EIG: It was ranked, the

9 topography was key.

10 MS. FERSTER: Okay, but the plinth,

11 you said, is a part of the landscape element not

12 --

13 MS. EIG: It's part of the topography.

14 MS. FERSTER: Okay.

15 MS. EIG: No, no, site resource. I

16 did not mean landscape. It's the grassy plain

17 but the plinth itself is part of the topography.

18 MS. FERSTER: Okay. So, perhaps it

19 would be useful if you could, from your

20 colleague, you could get that.

21 MS. EIG: I have it right here.

22 MS. FERSTER: Oh, Appendix I in front

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1 of you?

2 MS. EIG: Oh, Appendix I?

3 MS. FERSTER: Yes, because that's the

4 chart of that I'm now specifically referring to,

5 is the Appendix I, the 2014 report where ---

6 MS. EIG: Should I have the right

7 Appendix, Appendix I.

8 MS. FERSTER: That's the 2014 report.

9 MS. EIG: Yes. There are many charts

10 in this book here.

11 MS. FERSTER: This one is definitely

12 Appendix I.

13 DR. BYRNE: Ms. Ferster, while she's

14 looking, can you look let us know where this is

15 going?

16 MS. EIG: Yes, I have it.

17 MS. FERSTER: Thank you very much.

18 So, you know, I mean Ms. Eig testified

19 about the fact that the project is consistent

20 with the purposes of the Act and noted

21 particularly the plinth as being, you know, a

22 really important element of preservation and I'm

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1 just trying to reconcile --

2 MS. EIG: It's not identified as the

3 plinth. It's topography.

4 MS. FERSTER: Okay.

5 MS. EIG: No identification of a plinth

6 in Appendix I.

7 MS. FERSTER: Okay. The plinth is

8 nowhere but topography?

9 MS. EIG: Correct.

10 MS. FERSTER: Okay. So, because you

11 said you disagreed with that report somehow, that

12 you argued very strongly that the plinth should

13 be, you know, given more significance and that

14 the report somehow didn't.

15 MS. EIG: The report reflected the

16 landmark designation. Not my personal opinion.

17 It was as approved by the Historic Preservation

18 Review Board. I cannot always agree with the

19 Historic Preservation Review Board.

20 MS. FERSTER: But in this case you do,

21 right? Because a topography is identified in the

22 key resource, right? So in the case of the

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1 topography you would agree with that, to the

2 extent that the plinth is a significance, it's

3 topographical, that ---

4 MS. EIG: With topography, yes. I'm

5 sorry, I'm not understanding your questions.

6 MS. FERSTER: Yes. I mean you agree

7 with that, that the topography is a key resource.

8 Okay.

9 MS. EIG: I think that's what it says

10 here. Let's double check because you're asking

11 questions that, but I believe it says topography

12 is a, discusses the fact McMillan site retains

13 its artificial topography. Yes.

14 MS. FERSTER: Okay, good. And so the

15 plinth, when you refer to the plinth, you know --

16 MS. EIG: Which is actually as a result

17 of the research we did on the Olmsted, with the

18 Olmsted drawings of the Olmsted report, which was

19 not included in the landmark application.

20 MS. FERSTER: Okay. Great. And that

21 report was approved by the HPRB, you said?

22 MS. EIG: No ---

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1 MS. FERSTER: The 2014 report?

2 MS. EIG: -- the historic preservation

3 plan was approved by the HPRB.

4 MS. FERSTER: Oh, okay. But you said

5 the historic preservation report somehow doesn't

6 ---

7 MS. EIG: The historic preservation

8 report uses the criteria of significance that was

9 from the landmark ---

10 MS. FERSTER: Okay.

11 MS. EIG: -- designation that was

12 approved by the HPRB.

13 MS. FERSTER: Okay.

14 MS. EIG: They identified what was

15 significant and that was my interpretation of

16 what they said and you will see, if you read the

17 report, that we asked, looked at specific

18 questions that we thought would elucidate what

19 that significance was, and that is what we used

20 to identify these resources.

21 MS. FERSTER: Okay. So in terms of the

22 Olmsted Walk though, you stated your personal

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1 view that it's really a greater significance,

2 that it could be that hierarchy that identifies

3 the significance of merely being supporting

4 rather than key.

5 And so I take it you disagree with

6 that characterization but ---

7 MS. EIG: Because as I said, we learned

8 a great deal more about Olmsted than was in the

9 landmark application and that raised the

10 significance, in my mind, it raised significance

11 of the walk because you get character defining

12 feature.

13 MS. FERSTER: Okay. So are you willing

14 to go to the HPRB and ask them if they agree with

15 that characterization or how are --

16 MS. EIG: This sort of happened by

17 virtue of the process that we're in. Where we

18 have brought that to their attention, and that is

19 that they found this to be an important character

20 defining feature.

21 I don't think you're happy to have the

22 people who wrote that to revise that or I don't

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1 think I would decide to rewrite their landmark

2 application which is what I used that instead of

3 deciding to reevaluate it on my own.

4 MS. FERSTER: Okay. For purposes of

5 consistency with the purpose of the Act and

6 evaluating it, should we treat the Olmsted Walk

7 as supporting per the landmark application or

8 should we ---

9 MS. EIG: You have confused

10 contributing with non-contributing, supporting is

11 contributing.

12 MS. FERSTER: I understand.

13 MS. EIG: And the Historic Preservation

14 office brought it to the attention of this team,

15 which supported a position that I had held, of

16 how important the retention of the plinth and the

17 Olmsted Walk was and HPRB concurred with that.

18 MS. FERSTER: Okay. I'm sorry to be so

19 struggling with it and it's because I really am

20 just trying to find out what is the standard that

21 we're measuring, the level of significance.

22 Don't interrupt me, please. Because I really

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1 want to try and explain it, my question, so that,

2 because it's really not that complicated.

3 The report which you say is based on

4 the application, the designated landmark

5 application, ranks in terms of significance

6 various supporting features in the site in terms

7 of key and supporting, and some of them, I think,

8 there's another ranking, but I don't remember

9 what that last one is.

10 But I'm really just mostly interested

11 in the key or supporting. And you have said that

12 you disagreed personally with one of the rankings

13 in that report. So the question of what does a

14 mayor's agent do, because that report is, as you

15 say, the designated landmark, right, so who does,

16 when the mayor's agent decides what he waives,

17 the value of what is preserved against what is

18 being lost.

19 Does he go by your opinion or does he

20 go by the report? I mean, in terms of what the

21 landmark needs.

22 DR. BYRNE: Well, they're both

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1 evidence. Ms. Eig's professional opinion is

2 obviously evidence. The report is evidence.

3 That has to be understood correctly as to what it

4 was in my function in this area.

5 MS. EIG: And understanding also that

6 we are talking about very small degrees of

7 difference. All of the components resources of

8 the landmark, there's nothing that was identified

9 that didn't contribute to that. A manhole cover

10 contributes to it.

11 And one must make an assessment of how

12 to balance. As I said, the original report was

13 suggesting approaches that we thought. This was

14 not used as the Bible that had to then be

15 followed to create the development. It was a

16 reference for the development.

17 And the development, as you know,

18 changed in terms of its design many times as

19 things were weighed as to what was important or

20 not. In the end, the design as it's presented

21 now, was the maximum preservation that could work

22 with --

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1 MS. FERSTER: I understand.

2 MS. EIG: -- what is being proposed.

3 MS. FERSTER: Right and that's a

4 different point, but I'm just trying to

5 understand how we weigh the report when you have

6 a difference of opinion.

7 (Simultaneous speaking.)

8 MS. EIG: But the HPRB overrode these

9 recommendations to call for the plinth in the

10 Olmsted Walk to be preserved as a critical

11 defining feature, more important than others.

12 MS. FERSTER: Okay. So, I guess, can

13 you point me to where the HPRB identified the

14 plinth in the Olmsted, not the plinth, sorry,

15 because we agreed that that's consistent with the

16 report, but the Olmsted Walk --

17 MS. EIG: You're being silly, you know.

18 You're being a little silly, but okay.

19 MS. FERSTER: Okay, let me talk. I

20 want to finish my sentence. It's a good thing

21 we're friends. Where in the HPRB's specific

22 findings, I guess, in their record, where they

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1 said we view, because of this, you know,

2 information that's come to light, we view the

3 Olmsted Walk as a key significance to the

4 historic landmark?

5 MS. EIG: Between the 2012 plan and the

6 2014 plan, the review board made its position

7 known in its discussions and its adoption of the

8 final plan.

9 MS. FERSTER: Right. And that was an

10 element that, you know, there are other elements

11 that you would clearly, like the cells, for

12 example, and I think there are some other

13 features that you believe are of supporting

14 significance that the HPRB has also approved of

15 its preservation.

16 So at what point does the HPRB decide

17 that an element is more important than other

18 elements?

19 MS. EIG: You would have to ask the

20 HPRB that question.

21 MS. FERSTER: Okay. That's not clear

22 from their ---

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1 MS. EIG: No, I think it's clear by

2 what they approved.

3 MS. FERSTER: You mean ---

4 MS. EIG: Their reasoning behind that,

5 you would have to talk to them.

6 MS. FERSTER: So everything that they

7 approve, you would say is a key resource to the

8 site?

9 MS. EIG: No. I'm making no assumption

10 of that. I'm saying that what they approved

11 represents what they think is a positive

12 preservation solution.

13 MS. FERSTER: Okay. That's helpful.

14 Thank you.

15 Okay. So, let me turn to Mr. Bell

16 briefly because you were the presenter of these

17 alternative plans. And you went up to, there's

18 a, you know, a handful of these plans, they go up

19 to 2012.

20 And so the question is, did you

21 develop any alternative plans for the project

22 after 2012?

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1 MR. BELL: We approved the plan in

2 2014.

3 MS. FERSTER: Okay. So between the

4 2012 plan and the approved plans, there were no

5 other alternative designs that you considered?

6 MR. BELL: To be honest, there would

7 probably be sketches in the office, but the ones

8 that are here are the ones that had consensus on

9 our team to go forward with for presentation and,

10 you know, have the right, have the program mix we

11 were looking for.

12 MS. FERSTER: None of these sketches

13 would rise to the level of alternative designs

14 that are depicted ---

15 MR. BELL: No, ma'am.

16 MS. FERSTER: Okay. All right. So

17 let's talk about exemplary design issues,

18 exemplary architecture. Ms. Eig, I know you

19 addressed that issue. I mean, there were a

20 number of people, Mr. Bell.

21 Okay, so exemplary design, exemplary

22 architecture. And again, Mr. Bell, let's start

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1 with you because I think you were the primary

2 person testifying about the degree to which this

3 project should be considered exemplary

4 architecture.

5 Let me ask you, when you use the term

6 exemplary architecture, are you using it in the

7 context of your expertise with the Historic

8 Preservation Act? Because I assume most

9 architects, such as yourself, believe that all

10 their designs are exemplary. Do you have any of

11 your designs that are not exemplary? If that

12 word is used ---

13 MR. BELL: I'm not going to answer that

14 question.

15 MS. FERSTER: I want to make sure that

16 when you say the architecture is exemplary

17 architecture, that you're really not referring

18 to, you know, you're referring to a statutory

19 term as it's defined in the preservation field.

20 MR. BELL: I didn't testify to that.

21 MS. FERSTER: Okay.

22 MR. BELL: I think what I said was

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1 exemplary architecture had to do with a couple of

2 things. When the buildings are taken

3 individually, are well designed, and are unique

4 and appropriate for McMillan and had some design

5 guidelines, and that they have a family

6 relationships in a way that makes them unique to

7 McMillan which is unusual and exemplary.

8 So taking, you know, for example, I

9 mentioned the townhouses. The townhouses

10 typically, every one or two, three townhouses

11 changes its facade. We worked hard to come up

12 with a language for the townhouses that met the

13 design color palette which were supported by the

14 HPRB, but also did them in blocks that were

15 unified so that you would see a unified

16 coordination of rhythm of the facades which is

17 quite unique and in my view, quite exemplary.

18 MS. FERSTER: Okay. That's very

19 helpful. Thank you. So when you talk about this

20 is being exemplary, it's exemplary in terms of

21 its, the totality of the design, and the creation

22 of this sort of unified and cohesive coordinated

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1 design that takes into account, you know, the

2 characteristics of the landmark.

3 MR. BELL: That is one aspect and I

4 think the design of the individual buildings

5 themselves are exemplary.

6 MS. FERSTER: Okay. Well, let's follow

7 up on that a little bit. So you believe that if

8 you took each of these individual buildings,

9 looked at it alone, you know, individually, the

10 at EYA townhouses, for example, that the EYA

11 townhouses would constitute exemplary

12 architecture?

13 MR. BELL: I do.

14 MS. FERSTER: Okay. How about --

15 MR. BELL: But let's remember that in

16 and of themselves also and the benefit is in

17 their aggregation with other things --

18 MS. FERSTER: Understood.

19 MR. BELL: -- in the family as well.

20 MS. FERSTER: Understood. But let's

21 just talk about the individual buildings and

22 their architecture. What particular about the

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1 individual buildings, wholly apart from, you

2 know, the use of, you know, a unified palette and

3 coordinated cohesive design, et cetera.

4 What about the individual buildings in

5 the, let's say, the EYA townhouses, makes them,

6 in your opinion, exemplary architecture?

7 MR. BELL: So I would answer that in

8 the context of my buildings, not the EYA

9 townhomes, but I think the heart of what Matt

10 talked about in exemplary architecture was also

11 the integration of public spaces, historic assets

12 in the buildings themselves.

13 And so part of what we talked about

14 earlier today that I think answered your question

15 that you just asked, you can see in my building

16 on parcel one, it is a healthcare facility

17 integrated with a park, integrated with a

18 historic asset, and if you talk to the people who

19 are going to occupy that building, they find that

20 a tremendous benefit.

21 And they would compare it to the

22 building that they're in now which is surrounded

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1 by a sea of parking where they don't have any

2 parks. And, in fact, they just did this big

3 celebration on top of Children's Hospital because

4 they built a park on the roof.

5 Because there's nowhere else for

6 people to go. So the design components of my

7 individual building are actually quite exemplary.

8 MS. FERSTER: Right. And I understand

9 the argument that the design components that you

10 all believe are exemplary because of the park --

11 the situation with the park and the other things

12 that you said about the building, but my question

13 is, just look at the building itself.

14 Not the fact that you have designed it

15 because of its unique location in a way, look at

16 the building itself.

17 MS. BROWN: I'm going to object to

18 this question because the exemplary architecture

19 does not need to be broken down to each

20 individual component where you get down to the

21 window.

22 MS. FERSTER: Okay. And then I would

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1 move to strike Mr. Bell's testimony that he

2 believes that the individual buildings qualify as

3 exemplary.

4 MS. BROWN: It's completely separate.

5 So you could look at the building in totality,

6 but I don't want us to see, it doesn't make sense

7 to keep going down, you have to separate it from

8 its site, you have to separate it from its park,

9 you have to separate it from all the other things

10 that make up architecture.

11 MS. FERSTER: Well, I mean, Mr. Bell

12 testified looking just at the building itself, he

13 believes ---

14 MR. BELL: Ms. Ferster, you cannot

15 separate those things in a way like they're

16 totally tossed to the bottom of the pool that you

17 retrieve and examine individually. The building

18 has to have good proportions, good scale

19 elements, good relationship to the street.

20 It has to have a good relationship to

21 the facade and space that it defines. It has to

22 be of well made materials, materials that go

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1 together well, and are in proportional harmony.

2 That would be true of buildings in general that

3 would be thought to be good buildings.

4 These buildings are exemplary because

5 they have that plus they are related to each

6 other in McMillan in a unique way. So separating

7 those two things, I think, is really not the

8 right way to go.

9 I think you really have to look at

10 them and say, yes. When you look at the facades

11 of the townhouses, I think they are very

12 elegantly crafted. The added benefit is that

13 they are elegantly crafted in the way that makes

14 sense for McMillan.

15 It makes sense because the way in

16 which the rhythms of the facade are unique in the

17 genre of that topology.

18 MS. FERSTER: Okay. So just to

19 clarify. I obviously misunderstood your

20 testimony because I did hear you say that you

21 felt the individual buildings were, I'm not

22 talking to you, Ms. Eig, I'm talking to Mr. Bell,

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1 that the individual buildings were exemplary

2 architecture.

3 Now I understand that the exemplary

4 architecture you're ---

5 MR. BELL: It's a sophisticated

6 architecture.

7 MS. FERSTER: It's more a sophisticated

8 approach. So, you know, but I'm not an expert,

9 so I would appreciate some patience. But it

10 seems to me as a non-expert that the attributes

11 that you describe about the way these individual

12 buildings are designed in relationship to the

13 surroundings of McMillan, more go to its

14 capability with McMillan rather than it's

15 exemplary nature.

16 Can you help me distinguish between

17 what would be a compatible building, you know, as

18 in any kind of, let's say you build a building

19 in, you know, in a historic district. It has to

20 be found compatible with the character of the

21 historic district, right, Capitol Hill whatever.

22 So what would be the difference

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1 between, you know, finding that a building is

2 compatible within a historic district and finding

3 that it is exemplary architecture?

4 MR. BELL: It is my contention that

5 exemplary architecture is frequently compatible

6 and the compatible architecture can frequently be

7 exemplary. So one of the things we looked at

8 very carefully with the architecture here, was to

9 make an architecture that was both really good

10 but also respectful of the landmark.

11 That is a balancing act. So the

12 architecture that you see here is both very good

13 in a sense, you know, contextual architecture,

14 but very much of the high end of that, very

15 exemplary in that regard, but also very

16 respectful of the landmark.

17 And this is how we presented it to

18 HPRB. This was part and parcel of the design

19 guidelines where what we wanted to do was to

20 bring them in coherence so that the landmark

21 would be set off, but also the buildings

22 themselves need to enjoy a high level of design

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1 and craft as buildings that define public spaces,

2 make streets, and make public places.

3 So let me just do a little bit of an

4 editorial. What we weren't looking for is star

5 buildings on every block done by an architecture

6 who tried to make everything look unique. That

7 was really not the way we were going.

8 And a lot of people, those buildings

9 get a lot of attention in our society. What to

10 me is exemplary architecture can very much be a

11 row of townhouses, as much as it they could be a

12 different level.

13 So I think I have a different

14 definition and our team arrived at a different

15 definition and I hope this clarifies your

16 understanding of it because really in a way, the

17 challenge here is to make the proportions,

18 material to go together, make the elements work

19 like bay windows and the way in which the facades

20 are articulated, but also make it work with the

21 urban plan which is part and parcel of being

22 respectful of the landmark.

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1 MS. FERSTER: That is very helpful. I

2 really appreciate it and I think that completes

3 my questions on that issue.

4 Okay. So, somebody should help me out

5 because I didn't, I noted that somebody noted,

6 and I'm not sure who it was, talked about what's

7 called the extreme regulatory, the words were

8 used, extreme regulatory compliance in terms of

9 the code and the zoning, et cetera, as part of

10 the special merit of the project.

11 Was it somebody, that was you, okay.

12 So, okay.

13 MS. EIG: I presented that as one of

14 the challenges that had to be met in this

15 project.

16 MS. FERSTER: Okay.

17 MS. EIG: I don't know if I used the

18 word extreme that you wrote down, but the fact

19 that there were many regulatory challenges.

20 MS. FERSTER: Challenges, okay. But

21 you're not arguing that just compliance with all

22 these potentially completing the regulation, make

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1 --

2 MS. EIG: My point was that you had to

3 make all of them happy.

4 MS. FERSTER: Right. Sure. And that

5 makes a very complicated project, understood.

6 MS. EIG: Correct.

7 MR. BELL: Just to add, that also

8 makes it a project of special merit because that

9 was one of the processes we had to go through. I

10 think Emily's point was that we had to go through

11 several processes in order to move the project

12 forward, we did do all of those successfully I

13 think was her key point.

14 The Court asked us to look at some

15 particular issues and now we're back doing that.

16 So the challenge and success was going through

17 each of those successfully.

18 MS. FERSTER: Okay. So regulatory

19 compliance in your view, not in his eyes, but in

20 your view, the regulatory compliance makes this a

21 project of special merit?

22 MR. BELL: No, the mayor's agent is

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1 saying it's a project of special merit, makes it

2 a project of special merit.

3 MS. FERSTER: The mayor's agent's

4 decision was vacated. So we haven't said that.

5 MR. BELL: It was remanded. But it was

6 ---

7 MS. FERSTER: It was vacated. So it's

8 not by virtue of that decision if I look at

9 special merit because it has not, and it has not

10 yet achieved regularity compliance. So, okay.

11 There's a lot of discussion about activation as,

12 and I think Ms. Eig, that was part in your

13 testimony, activation, the activation of the

14 site, Mr. Bell, you discussed activation ---

15 MS. EIG: Mr. Bell introduced it.

16 MS. FERSTER: And then you ran with it

17 a little bit. So I have a couple of questions

18 that, you know. Activation. You're basically,

19 your argument as I understood it, the activation

20 is the fact that this is a site that has

21 previously been inaccessible because of the fence

22 around it and that by developing it, you're

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1 activating it. Is that it?

2 MS. EIG: No, that was not my

3 intention. My intention was taking it from a

4 situation where there are, as Mr. Bell said, you

5 could build buildings, but it doesn't mean that

6 people are going to go into them, that they're

7 going to have a daytime population.

8 These buildings are designed so that

9 there are activities that will draw people to

10 them. I could compare this not with what is at

11 McMillan, but rather the downtown Washington, DC.

12 Downtown Washington, DC, had very few people

13 whoever walked down the street in the daytime or

14 in the nighttime.

15 And that is not the case anymore. It

16 has been activated by retail, by, and now because

17 of the Verizon Center, by parks being improved.

18 By all kinds of things that made people feel more

19 comfortable being there. The museums, the Spy

20 Museum was critical to activating downtown.

21 There was a reason to be there and

22 this entire plan has been, in my estimation, is

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1 designed to not just make sure there are things

2 that people want to do, but place them in a way

3 that will in fact keep them moving through the

4 site.

5 MS. FERSTER: Sure and I understand

6 that that's a goal of the project, is to make it

7 a space that people like to go to and appreciate

8 and learn from it.

9 But from a historic preservation

10 standpoint, using your example of downtown, for

11 example, the downtown before, you know, a number

12 of years ago, it was not a very active downtown.

13 But it was still historic, wasn't it.

14 MS. EIG: That would be preservation

15 consistency.

16 MS. FERSTER: Yes.

17 MS. EIG: Making it activated moves it

18 to a special merit in my mind, makes it special.

19 MS. FERSTER: Okay. So in terms of the

20 activation then is irrelevant in terms of the

21 preservation issue. It's more a benefit of a

22 project that is --

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1 MS. EIG: Yes. Right now the site is

2 a historic landmark. It is not activated.

3 MS. FERSTER: Right. And many historic

4 sites are inaccessible and they continue to be

5 historically important by being inaccessible.

6 Accessibility doesn't affect its historic

7 significance. Okay. There's something that you

8 said in your testimony about the sand washer.

9 You said that they would be

10 deconstructed?

11 MS. EIG: I knew you were going to

12 catch me on that. It was just, they're 12 sand

13 washers, they're all being preserved, some of

14 them are being restored, and some of them are

15 being used, as I said for planters. They might

16 be somehow, let's remove that from my testimony.

17 It was just, there's possibilities

18 because of the interest in having components of

19 the site that are not going to be, like the

20 manhole covers making it into a piece of art.

21 I think there is an opportunity for

22 something for instance we replaced one of the

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1 sand washers. It is right at Capitol Street as

2 an entrance, and it becomes a visual component,

3 not just a historic component. That was my

4 point.

5 MS. FERSTER: Okay. So you're moving

6 some of the sand washers?

7 MS. EIG: Yes. That has always been

8 the case. Some sand washers are being retained

9 in places, some are being moved. Some are in

10 place where the streets were to go. So we've

11 tried to move them as close as possible to where

12 they would be.

13 MS. FERSTER: Okay. So, refresh my

14 recollection about move the buildings. You know,

15 do they, it's the locations?

16 MS. EIG: No, sand washer is different,

17 it's moveable. It can be moved. It's not a

18 building.

19 MS. FERSTER: Okay, like the fountain?

20 MS. EIG: Well, it's much simpler than

21 the fountain, so.

22 MS. FERSTER: It seems to me that part

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1 of the historic significance in terms of the

2 interpretation of the sand filtration site is

3 that they're located on the service court so and

4 you moved them off it?

5 MS. EIG: Most of them, well, the one

6 that would be placed at the, where Capitol

7 Street, will still be on the service court.

8 They're not going to moved off the service

9 courts. They're just being shifted or you know.

10 And that has always been a component of this. It

11 is part of it, because we are preserving all 12

12 of them.

13 MS. FERSTER: Okay. So one of the

14 visuals that was shown is a visual of the portal

15 and, you know, I think you explained that the

16 portals, substantial part of the portals, because

17 of their relationship with the cells would have

18 to be demolished, and because they are a

19 retaining wall.

20 So if we could turn to that visual.

21 I guess, there was a visual of one of the portals

22 that remains at, you know, after the alterations

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1 have been done. And I'm wondering ---

2 MS. EIG: Can you tell me what page

3 that's on?

4 MS. FERSTER: Let me find that. It was

5 shown in somebody's testimony. I made a copy of

6 it, but we have a copy of it here but I don't

7 know what page it is. I mean, there are a lot of

8 slides here. But if I show you this picture,

9 maybe you can locate it.

10 (Off microphone discussion.)

11 MS. EIG: The one that is on this

12 screen is what you're referring to?

13 MS. FERSTER: Yes, 105. Yes, here we

14 go. That's definitely one of them. Okay. So,

15 is this is a good example of what's going to be

16 done with the portals in terms of their reuse

17 within the developments?

18 MS. EIG: In this particular location.

19 MS. FERSTER: Okay. And how about

20 other portals?

21 MS. EIG: I see them in different parts

22 of the design. They're, some of them, for

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1 instance at the community center, portals and

2 entry to the community center, some other side of

3 the --

4 MS. FERSTER: Let's just stick to the

5 north service court.

6 MS. EIG: The portals in the south

7 service court.

8 MS. FERSTER: Okay. So in the north

9 service --

10 MS. EIG: Where cell 14 is?

11 MS. FERSTER: Yes. Is there no visual

12 of the other portals? I mean, maybe you can just

13 look and tell me in terms of the visuals. Is

14 this what, you know --

15 MS. EIG: On 100, that is --

16 MS. FERSTER: 105.

17 MS. EIG: It is restored in place.

18 That's on cell 14.

19 MS. FERSTER: This is cell 14, okay.

20 So that's on cell 14. And I'm trying to see in

21 this picture, because I don't see any other

22 portals on this service court. Are there other

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1 portals that are being retained other than that

2 one?

3 MR. BELL: On the north service court,

4 that is the one that is being retained.

5 MS. FERSTER: Okay. And the rest of

6 them are being completely demolished. That's on

7 the south service court. Is 105 also pictured

8 the north service court or that's something

9 different?

10 MR. BELL: For the 105, I can't see

11 it.

12 MS. FERSTER: That's about one, about

13 four pages --

14 MR. BELL: There are a number of

15 portals being retained on the north side of the

16 south service court and the south side of the

17 south service court.

18 MS. FERSTER: Okay. Then what's this

19 is a picture of?

20 MR. BELL: That's a picture looking at

21 the north side of the south service court with

22 the townhouses behind it. So it will be defining

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1 the south service court with the sidewalk behind

2 it.

3 MS. FERSTER: Okay. And you say a

4 number of portals will be retained. Will they

5 look like this portal?

6 MR. BELL: On the north side, yes.

7 MS. FERSTER: Okay. And how many on

8 the north side will be retained?

9 MR. BELL: Go to the plan to see. I

10 have to look at the plan to tell you the exact

11 number.

12 MS. EIG: I will just add this. I

13 stated before the portals are part of the cell

14 that's being demolished so we're actually

15 retaining a portion of the demolished component,

16 we're not demolishing all of it. Because we have

17 retaining walls and so they have to be stabilized

18 differently in order to have them survive without

19 the wall behind --- the earth behind it.

20 MS. FERSTER: Okay. So in terms of

21 what's being preserved. I'm looking at this

22 portal. Is the entirety of what is shown in this

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1 portal including the spans that lead up to the

2 part of the original materials or is this ---

3 MS. EIG: Yes.

4 MS. FERSTER: -- any new construction

5 in there?

6 MS. EIG: No, it's original material.

7 MS. FERSTER: Okay. And how about the

8 doors?

9 MS. EIG: The preservation plan calls

10 for the doors to be -- the wood to be retained as

11 much as possible and to be repaired or replaced

12 as necessary in kind so that it would be a

13 typical rehabilitation treatment for the doors.

14 Because some of the wood is quite

15 deteriorated and cannot be preserved, but it

16 would be following the Secretary of Interior

17 standards.

18 MS. FERSTER: And there was something

19 said, it might have been from Mr. Bell, about the

20 walls on the service court being demolished, was

21 that you?

22 MR. BELL: What's the question?

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1 MS. FERSTER: You had indicated that

2 some walls in the service court were being

3 demolished?

4 MR. BELL: The north service court, as

5 I mentioned, though the front part of cell 14,

6 which has the wall and the portal, is being

7 preserved and rehabilitated. The balance of the

8 rest of the walls and the cells in the north

9 service court are being demolished to make a

10 retail street and I think what I spoke of was the

11 fact that a retail street, highly desired by the

12 community, needs to have transparency and

13 accessibility in order for it to succeed.

14 MS. FERSTER: Right. But I'm just ---

15 the walls you are referring to are really some

16 part of the portals and part of the cells, is

17 that correct?

18 MR. BELL: Yes.

19 MS. FERSTER: Okay. And Ms. Eig, in

20 your historic preservation plan, where you

21 describe the various treatments of the resources

22 on this site, what you indicate what's, you know,

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1 being demolished and what's being restored or

2 rehabilitated. Where would these walls be

3 described in this report, what's being done to

4 the walls?

5 MS. EIG: There's an index I think you

6 can look at that. You're looking at the

7 preservation plan.

8 MS. FERSTER: The preservation plan,

9 exactly. Index, yes. It doesn't say on the

10 index. Because the walls, it seems to me that

11 they could be described in the treatment for the

12 portals, they could be described as treatment

13 themselves. I am wondering where are they

14 located at? It could be described in the

15 treatment of the service courts?

16 MS. EIG: The service court walls are

17 on page 40.

18 MS. FERSTER: Okay. Thank you.

19 MS. EIG: You're welcome.

20 MS. FERSTER: They start on page 48 and

21 continues through page 44. So they're treated as

22 a separate element?

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1 MS. EIG: Yes. It was following the

2 inventory. As I said, that was done by DC many

3 years before I got involved.

4 MS. FERSTER: Okay. I'm really close

5 to the end. Just let me just check my notes and

6 be sure I haven't missed something that I've

7 already talked about.

8 Okay, I think that's all I have. All

9 right. Well actually, I did ask this question in

10 one way, but I think I should ask it in a

11 different way. And I think I asked it, you know,

12 when I asked the question of whether or not any

13 studies have been done of the alternative

14 subdivisions. You know, other than reducing the

15 number of different configurations or

16 subdivisions.

17 This is a similar question but it

18 relates to that and that is, apart from the

19 studies that you've done, well, actually. I

20 think you've answered that question. But, okay,

21 so. No, this is the way I'm going to ask it.

22 So you talked particularly about the

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1 healthcare facility and indicate the project

2 would not be financial viable unless the

3 healthcare facility is constructed because of,

4 you know, its role in the entirety of the

5 project.

6 And then you looked at various

7 scenarios that would reduce the healthcare

8 facility to preserve one or more of the cells and

9 decided, and explained why you do not believe

10 that the healthcare facility could be viably

11 built under that scenario, but there was one

12 alternative that I was wondering if you had

13 studied.

14 It's a different alternative and that

15 is the study of the financial viability not of

16 reducing the numbers of square feet associated

17 without the healthcare facilities that you

18 planned, but putting them, locating them in a

19 different place on the site. Had that been, you

20 know, the financial liability, it's simply a

21 matter of retaining the square footage.

22 It has nothing to do with the

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1 location, is that correct? Do you object to my

2 question or --- you're nodding no, Ms. Brown.

3 MR. BELL: Can you just clarify the

4 question?

5 MS. FERSTER: Yes. You talked about

6 the financial viability of the project and how,

7 not financially viable because of the

8 alternatives that would reduce the number of

9 square feet. And my question is different, and

10 if you put the healthcare facilities, the same

11 number of square feet but in different locations,

12 perhaps broke up the buildings or did some other

13 configuration, exact same number of square feet,

14 what is it, 800 and, almost a million square

15 feet, is that it?

16 MR. BELL: 950.

17 MS. FERSTER: 950 square feet. So you

18 retain that square footage, but you just simply

19 looked at alternative designs and broke that up

20 and, you know, moved them into different parts of

21 the site. Does that effect the financial

22 viability of the project of having the healthcare

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1 facility designed in a different way basically,

2 without any reduction in the number of square

3 feet?

4 MR. BELL: Yes. So I hear you asking

5 two things. Number one, have we looked at

6 alternatives that have healthcare facilities in

7 different locations on the site, and the answer

8 to that is yes.

9 And number two, I hear you asking me

10 if you just took the healthcare facilities from

11 where they and disbursed them somehow in a bunch

12 of different places throughout the site but had

13 the same total square footage, do you get to the

14 same answer, and my answer is yes.

15 That does not work. You cannot just

16 take these big buildings that are altogether as a

17 canvas and disperse them into, say, ten different

18 pieces with the same total square footage and

19 just intersperse them throughout the site.

20 MS. FERSTER: Yes.

21 MR. BELL: That being said, we wouldn't

22 do that anyway because of a part of what we

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1 discovered when we did the analysis of putting

2 the healthcare facilities in other places on the

3 site, is that they belong on Parcel 1.

4 And we've talked about this many times

5 in many contexts, but that use being next to the

6 Washington Hospital Center, the VA, Children's

7 Hospital, it's where the healthcare uses belong

8 on the site.

9 MS. FERSTER: Right and I understand

10 that part of your testimony. But, and the

11 example you provided about ten different

12 building, that's a bit of an extreme example.

13 But you do have two healthcare facilities on this

14 site, so you have broken them up between in the

15 site.

16 So I'm wondering, and you said you

17 have looked at alternative locations, but the

18 question was, you know, would changing their

19 location on the site including possibility

20 shifting more density into, you know, maybe one

21 or more buildings, would that affect the

22 financial viability of the healthcare?

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1 MR. BELL: Yes, it would. In the same

2 way, and I would have the same answer for the

3 grocery store. The grocery store isn't going to

4 want to be located on the southwestern corner of

5 the site for a lot of reasons. I don't think you

6 can just pick up the density and put it anywhere

7 on the site and think that it does not affect the

8 economic viability of those uses, so yes.

9 MS. FERSTER: Okay. So are you saying

10 that the location that you have picked for the

11 healthcare facility, the locations, because there

12 are two of them, that no other location within

13 the site, same square footage, no other location,

14 no other configuration would be economically

15 viable? Nothing other than what you have picked?

16 MR. BELL: No, that's not what I'm

17 saying. What I'm saying is in my opinion, they

18 are in the optimal place.

19 MS. FERSTER: Okay. Thank you. Okay.

20 I think that is it for my questions.

21 DR. BYRNE: Okay. So it's 6:36. So,

22 I think this probably is a good place to stop.

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1 Mr. Otten, I'd just ask you if there are any of

2 these folks who don't have to come back on

3 Monday? Just to sort of, the answer may be no,

4 but we can let somebody not have to come back,

5 that would be good.

6 MR. OTTEN: I was actually going to

7 ask about Mr. Kenner. If he's coming back or is

8 someone from DMPED, because I don't see DMPED

9 actually on the dais.

10 DR. BYRNE: So, I think you cross

11 examined Mr. Kenner already.

12 MR. OTTEN: But at the time --

13 DR. BYRNE: We said that if there were

14 questions that he needed to answer that were

15 relevant to the application, that we would

16 consider how to address them.

17 MR. OTTEN: Yes. I think it's less Mr.

18 Kenner because, obviously, we ran into the fact,

19 as you pointed out, you may not know the details,

20 but there is the project manager who was at the

21 prior hearings, Mr. Gilles Stucker, who's in the

22 room, I guess, you know, in preparation for

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1 today, I was planning to ask him questions

2 certainly, and I don't see him up here at the

3 dais.

4 And also, timing here for Monday, I

5 know, I think all these folks here are being paid

6 to be here. DC for Reasonable Development is a

7 completely volunteer organization. I have an

8 outside job. And I took time off today to be

9 here.

10 Taking time off on Monday is pretty

11 much not feasible, plus I believe we have

12 witnesses that are also volunteers that -- it

13 just doesn't seem sustainable to be able to just

14 do this on Monday.

15 MS. FERSTER: Yes. Some of our

16 witnesses have now left, so.

17 MR. OTTEN: Well, I believe Calia

18 Barrigan (phonetic) is here and she can't be here

19 on Monday. So, I'm asking that we put this a

20 week so that people can get their calendars

21 together. Well, can we do it, because I'm

22 already committed on Monday. And so are some of

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1 the witnesses.

2 MS. BROWN: I would recommend that we

3 proceed tonight then.

4 MS. FERSTER: Well, we can't. You

5 know, it's been made clear that we are not going

6 to continue beyond cross examination. I've

7 already told witnesses to go home, they're gone.

8 MS. BROWN: I don't think that was, I

9 think we were going to decide whether, how far we

10 got tonight.

11 MR. OTTEN: Well, can we do Wednesday?

12 MS. BARRIGAN: If I may say something.

13 So I am a district resident, and this is ---

14 MR. BYRNE: Come up here. Identify

15 yourself, please, your name and --

16 MS. BARRIGAN: Sure. May name is

17 Calia Barrigan. I am a district resident. I'm

18 also an expert --- an urban planning and

19 environmental policy expert. People like me,

20 specifically of my race, women of color, we're

21 not often, we don't have the opportunity to come

22 in and talk to you and participate in this

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1 government processes.

2 And it's really unfair that because of

3 the time constrictions of many these agencies

4 present here, I'm not going to be able to come in

5 on Monday and actually, you know, serve my duty,

6 my citizen duty of participating in something

7 like this.

8 Again, I am a Ward 5 resident, so I

9 will be impacted by this development, so I would

10 ask for you to please consider really including

11 our time and not expand it too late further. I

12 mean, I'm here, but I have family that I need to

13 attend.

14 There are DC codes specifically human

15 right codes, that prevent this from happening,

16 this type of discrimination as far as, you know,

17 expanding something like this and not allowing

18 the public to come and participate.

19 DR. BYRNE: Well, that aside, I do

20 want to allow opportunities for people to have aa

21 chance to testify.

22 But the question is how to do it in a

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1 way that's reasonably expeditious.

2 (Off microphone discussion.)

3 MS. BROWN: Could I suggest that some

4 of the witnesses that can't be here in person

5 submit written testimony. We can supply a

6 written rebuttal.

7 MS. FERSTER: Ms. Barrigan (phonetic)

8 is going to be testifying as an expert so, you

9 know, as an expert, I think it is certainly

10 important that she be able to testify in person.

11 DR. BYRNE: Well --

12 MS. BROWN: Or we can take her out of

13 order and go now?

14 (Off microphone discussion.)

15 MS. FERSTER: And I've just been

16 informed that one of my witnesses is going to be

17 out of town until the 26th. Of July.

18 DR. BYRNE: Any suggestions? The

19 problem is I'm -- I leave on Thursday, and will

20 not be back until the 15th of August. So, I --

21 MR. OTTEN: Mr. Byrne, I don't know if

22 you've checked out the zoning commission

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1 transcript, but they are simultaneously

2 proceeding. They're not going to be contending -

3 --

4 (Simultaneous speaking.)

5 MR. OTTEN: --- until September, so.

6 DR. BYRNE: So I was hoping to work on

7 this over the summer because I have a job. So I

8 would like, I guess what I would like to do is,

9 does it make sense to proceed with cross

10 examination on Monday and put off their cases,

11 probably not.

12 So, I think, I guess I think under the

13 circumstances, we need to put this off and I'm

14 going to have to ask HP, the Historic

15 Preservation office to work with counsel for

16 another date. I'm sorry. But I do think it's

17 necessary to do that.

18 MS. FERSTER: I am also going to make

19 one other request here, and that is that we talk

20 about me calling as part of our case, a DC

21 government witness who can testify on direct as

22 one of our witnesses about what going on with the

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1 permitting and the raze permits, et cetera.

2 So I think I would probably like to

3 call probably Mr. Callcott as part of our

4 testimony under direct.

5 MS. BROWN: I don't know how you're

6 going to arrange that since he is a, you can't

7 call him as your witness if he's a government

8 witness.

9 MS. FERSTER: Well, you called him DOE

10 employee as one of your witnesses in the zoning

11 hearing --

12 DR. BYRNE: Wanting to ask him about

13 the issue instead of the demolition practice,

14 that's the issue?

15 MS. FERSTER: Yes, and the

16 construction permits, exactly. I have a number

17 of concerns about what is going to happen, what

18 happened then, and whether it's going to happen

19 again.

20 DR. BYRNE: I don't know if that has

21 anything to do with these applications.

22 MS. FERSTER: Well, under the Historic

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1 Preservation Act, the statute says that a raze

2 permit cannot be issued unless the applicants

3 have the ability to complete the project and that

4 a new construction permit is issued

5 simultaneously.

6 And obviously that didn't happen the

7 last time.

8 MS. BROWN: You're asserting facts

9 that are not in the record. We have to stick to

10 the facts of this case and not drag in some other

11 facts from a different matter, and you know

12 perfectly well that the process for appealing a

13 raze permit that you think is not properly

14 issued, is to go to the OAH.

15 MR. OTTEN: Ms. Brown, you also know

16 that Mr. Callcott has signed off, he personally

17 signed off on the HPRB reports which has gotten

18 us to where we are today including noting that

19 the demolition is to such a degree that it does

20 need to come to the mayor's agent.

21 DR. BYRNE: That doesn't have anything

22 to do with this question of permits. I don't

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1 think I'm going to allow that. I think they're

2 going to have pursue the question of whether the

3 permits were issued unlawfully in another form.

4 So, the problem with calling the witness doesn't

5 arise.

6 MS. FERSTER: Well then perhaps we

7 will address this in terms of fashioning some

8 appropriate conditions for your future order in

9 the event that you approve demolition so that

10 this will not happen?

11 DR. BYRNE: I would be open to

12 discussing it, yes. All right ---

13 MS. BROWN: I just wanted to -- can we

14 not proceed with the rest of the cross

15 examination from DC for Reasonable Development

16 tonight?

17 DR. BYRNE: Tonight? Yes.

18 MR. OTTEN: I mean I have lots of

19 questions. We were handed a 200-page report

20 today. I had my questions that were based on the

21 June 23rd submission ---

22 DR. BYRNE: You mean the ---

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1 MR. OTTEN: Yes.

2 DR. BYRNE: -- exhibits.

3 MS. BROWN: It's nothing new.

4 MR. OTTEN: There's plenty of new in

5 there. In fact, I had annotated it during lunch

6 and I have lots of questions.

7 DR. BYRNE: I'm sure he does. I think

8 it would be almost cruel for me to have you all

9 be here for time it's going to take and what it

10 will be like, as bad as it is to ask you to come

11 back.

12 MS. BROWN: All right. So one final

13 issue is that we have resolved the amendment to

14 the 18 USC and that the clarification provision

15 was inserted in 1990. So I'll submit that for

16 the record.

17 DR. BYRNE: All right. Okay. Well,

18 that's good. I won't take the time to look at

19 this now, but assuming that that's the case, then

20 your testimony is ---

21 MS. BROWN: I'm sorry, I don't know

22 that we've resolved the question of whether or

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1 not he is admitted as an expert if you decide to

2 accept his testimony.

3 DR. BYRNE: She didn't object to it

4 from being an expert.

5 MS. BROWN: Okay. All right. Thank

6 you.

7 DR. BYRNE: Okay.

8 MS. FERSTER: And then I think that it

9 was noted there are a couple of things that we'd

10 like to be provided. I'm trying to remember what

11 they were though.

12 (Off microphone discussion.)

13 DR. BYRNE: Yes, we'll get you the

14 contract.

15 MR. OTTEN: Can I inquire as well,

16 will this be, Ms. Brown, will this be -- the

17 submission from today, will that be provided

18 electronically?

19 MS. BROWN: Some of that I don't have

20 electronically, so what you have is what you --

21 DR. BYRNE: Okay. Very well. So

22 today we're adjourned and Mr. Callcott or

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1 somebody in the HPO will be in touch to set a

2 date for another hearing. Thank you all for your

3 patience.

4 MS. FERSTER: Okay, so we're not

5 meeting on Monday.

6 DR. BYRNE: Correct.

7 MS. BROWN: Thank you.

8 MS. FERSTER: Thank you.

9 MR. OTTEN: Thank you.

10 (Whereupon, the hearing in the above-

11 entitled matter was concluded at 6:51 p.m.)

12

13

14

15

16

17

18

19

20

21

22

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.578 **
 483

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.579 **
 484

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.580 **
 485

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.581 **
 486

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105:5 106:3 buggies 110:12 440:7,12,13,16 Burmeister 18:20
123:12,20,22 build 103:14 178:22 441:5,12,17 19:6,11
124:7 163:22 205:10,11 222:19 443:17,18 444:1 business 31:5
165:1 167:9 168:3 275:1 278:14,15 452:18 465:12 172:1 295:10
168:18 169:11,19 303:12 334:14,14 buildings 102:16 busy 33:12 405:11
173:9,13,16,19 335:8 350:10 127:9 132:5,19 buy-in 220:20
206:7 207:11 394:16 409:21 135:5 139:14,15 Byrne 1:15 4:3,4
208:9,18 209:12 410:8,12,12 140:10 142:11 17:10,16,21 19:21
209:16,21 210:5 412:13 443:18 150:8 151:14 21:3,7,11,16 23:2
210:10,18,21 449:5 153:1,6,14,16 25:16,18 26:6,8
212:8 235:8,13 builders 156:11 154:6,19 155:1,4 31:15 32:15 33:7
236:10 239:9,17 building 53:1 158:15 164:19 33:10,18 34:15
239:22 246:17 105:16 112:21 166:18,19 170:17 35:4,15 39:3
249:22 251:9,14 114:11 137:20 170:18 172:5 40:17 41:15 42:3
258:9 279:20 138:1 141:21 186:4,7 189:10,17 42:15 43:5,15,22
283:2 284:2,11 152:7 153:21 191:14 195:17 44:3,18 45:20
285:4,9,17 304:10 154:2,18 155:14 203:17 204:12 46:19 47:17,21
305:17 307:6 156:12 157:20 215:14 217:4,17 48:11 49:6,13
308:7 313:1 158:7 164:8,14,16 218:4,12 219:14 50:11,15 51:7,18
314:16 315:8 164:17 172:8,9 220:2 225:17 51:20 52:10,15
322:4 335:17 180:8 184:19,20 227:15 257:11 53:18 54:14,18
336:5 341:22 184:21 185:1,5,9 266:17 268:9 55:11,18 56:1,12
342:16 345:6 188:1,5 191:13 271:1 272:16 56:21 57:5,9,13
347:20 362:9,16 195:12,13 200:9 303:3 336:20 57:18 58:1,3,7,11
365:10 366:7 200:10 201:7,8,11 338:2,5 340:17,19 58:20 59:1,12,17
367:19 370:10,20 202:3,7,13,16 346:16,21 347:19 60:8,9,13,17 61:1
371:3,16 373:12 203:4,15 206:15 348:9,21 349:7,10 61:7 62:10 63:4
375:15 376:8 208:1 209:13 349:12,14 353:20 63:11,13,18 64:6
377:14 381:15 219:4,7,12,18 354:20 355:12 64:8 66:2,10,15
383:13 399:20 227:18 231:1 371:8 373:1 398:4 66:20 67:1,8,18
400:12 401:8,12 232:2 237:18,22 404:19 414:11,13 68:14 69:13,16,19
402:10 405:19 238:8 271:16,20 416:10,21 437:2 70:5,14 71:5,16
409:1 417:17 290:6 296:20 438:4,8,21 439:1 72:2 74:16 75:6
418:2 440:17 297:5,12 302:19 439:4,8,12 441:2 75:12,16 76:2,15
441:4 463:2 469:2 302:22 308:20 442:2,3,4,21 76:17,21 77:2,7
469:8 471:3,12 318:9 326:10 443:1,12 444:21 77:10,14,21 78:2
473:5 474:8,15 334:4,8,12,17 445:1,5,8 449:5,8 78:6,10,14 79:5,8
475:13 476:3,12 335:1,2,3,6,6,11 452:14 463:12 79:14,19 80:5,16
476:21 477:5,16 335:22 336:3,7 464:16 465:21 80:19 81:2,8,12
477:19 478:7 340:15 348:1 built 99:14 113:13 81:15 82:11,17
Brown's 350:6 349:11 350:6,9 205:3 215:9,14 83:1,4,10,15,18
406:8 351:1,11,12 352:8 236:5 259:15 83:20 84:10,21
Bruce 145:6 352:21 355:17 340:6,8 404:13 85:8,14 86:3,8,15

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.582 **
 487

86:18,21 87:9 376:10,16 377:1 421:11 422:8,9,9 career 171:16

88:5,15,22 89:8 377:19 378:1 446:7 473:9 222:16 223:9,17
89:19 90:2,3 382:1,9,18,21 calling 35:7 112:21 226:15
102:10 103:4,17 383:14 385:5 472:20 475:4 careers 222:17,20
104:7,14,20 400:17 401:3,14 calls 121:10 458:9 223:10
105:10,16 106:2,6 403:7 404:4,22 campus 216:19 careful 20:16
106:8 108:8 111:6 405:22 406:10 217:12,14 218:2 105:20
112:3,15 119:9 418:7 424:13 230:13,16,18,22 carefully 104:11
123:21 124:5,10 430:22 466:21 238:4,12 388:7 264:22 317:7
124:11 136:5,9,11 467:10,13 469:14 389:5 392:22 444:8
163:12,19 164:5 470:19 471:11,18 393:16 411:1,12 Carol 249:1
164:12,18,21 471:21 472:6 411:20 412:3 Carolyn 2:3 22:3
165:4,18 166:6,10 473:12,20 474:21 413:13 414:1,6,15 Carolyn's 256:5
166:20 167:2,6 475:11,17,22 416:7,9,14 carolynbrown@d...
169:20 172:22 476:2,7,17 477:3 campuses 414:19 2:6
173:8,12,14,17 477:7,13,21 478:6 cancer 237:13 carried 110:13
187:6 210:2,8,11 Byrnes 410:11 canted 150:15 298:18
211:6,12,15,19,22 canting 152:3 case 4:15 7:19 9:2
212:6,13 235:7 C canvas 464:17 10:15 11:22 12:2
236:12 238:10 C 2:9 282:21 310:21 capability 443:14 12:7,14,16 13:9
239:8,15,20 240:6 311:1 420:20 capable 139:22 13:13,19,20,21
240:10 245:15 C-O-N-T-E-N-T-S 301:21 14:3,22 15:1,21
246:1,13,16,22 3:1 capacity 217:17 16:6 17:3,9 18:9
248:15 249:8 Cafe 352:12 225:10 293:15 21:10 22:10 24:2
250:2,4,22 251:5 cafes 151:3,6,19 capita 216:1 224:13 25:19 36:13 52:7
251:11,18,19,20 calculated 246:12 394:4 53:19 54:7 57:19
251:20,21 257:22 324:20 385:8 capital 28:14 61:18 57:21 60:4 64:1
258:14 276:2 calculation 253:22 149:2 218:22 64:21 67:19,20,21
279:19 281:17 254:2 324:4 291:10 320:16 71:7,18 72:5
282:2 283:10 calculations Capitol 95:13 74:12 76:18 77:13
284:9 285:2,5,16 285:14 327:20 102:13 109:14 77:18,18 78:16,21
285:19 304:8 calendars 468:20 128:12 132:11,13 80:3,11,21 81:3,6
305:3 306:16 Calia 468:17 469:17 132:14 143:3,8 81:11,19 82:3,5
307:22 308:10 call 50:21 112:22 146:15 151:22 82:14,19 83:6,9
310:2 311:21 121:20 193:15 155:13 163:1 83:11,12,17,22
312:13,17 313:8 202:19,19 269:20 197:16 201:5,19 84:5 85:6 86:6
315:10 316:17,22 271:4,18 272:20 204:6 207:13 87:6,7 113:1
317:5,15 318:14 275:8 276:6 209:13 219:8 118:15 176:11
322:8,12 328:1 295:17 314:6 247:6,10,15 250:6 200:12 236:15
342:5,15,18 352:2 365:7 268:3 278:17,19 249:9,14,16,21
345:22 346:2,20 378:16 388:5 319:4 443:21 252:6 253:8,13
347:5 362:19 432:9 473:3,7 452:1 453:6 255:15 256:16
364:18 365:18 Callcott 473:3 capture 329:10 259:17 275:4
366:9,21 367:1,2 474:16 477:22 care 214:14 216:9 279:4 280:9 283:3
367:8,15 368:5,14 called 122:2 165:2 216:10 218:20 283:7 284:20
369:15 370:1,4,17 311:2 312:11 224:19,19 237:9 307:8 312:21
371:1,4,14 372:9 326:8 329:7,18 238:9 283:9 313:4 336:9
374:9 375:20 336:17 388:7 311:21,22 312:3 362:18 365:7

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.583 **
 488

368:11 370:5 145:16,22,22 274:1,5,7,8 156:19 235:16

379:20 381:17 146:4,6,9,13,18 276:21 277:15 269:21 305:17
425:20,22 449:15 155:12 159:9 278:20 356:13 312:20 315:15
452:8 472:20 160:2,3,4 161:12 358:20 359:2,19 340:18 345:8
474:10 476:19 161:16,16 162:17 359:22 361:12,16 361:15 367:7
cases 5:6 7:2 9:22 162:19,21 163:4 362:14 365:14 369:21 381:2
10:11 11:2 52:8 165:14,15,16,16 407:20 408:5,14 468:2 471:9
99:22 116:2 117:4 165:19,20 177:19 408:15,19 409:7 certificate 43:2,11
204:20 217:19 177:20 178:19,19 409:10,16,19,22 43:12,20 395:21
307:12 316:3 188:11,12 197:9 410:8 433:11 396:1,3,13,22
372:2 380:6,9 197:10,12,15 453:17 459:8,16 398:7
472:10 198:5 208:3,4,5,6 462:8 certificates 395:18
catastrophically 208:7,22 209:3,8 cellular 146:2 certification 45:5
92:15 96:3 209:9 219:11 center 27:22 28:21 45:12 46:5 333:21
catch 451:12 227:17 228:1 126:7,16,17 127:2 335:4 336:2 337:5
categories 113:14 229:2 269:13 127:5 130:3,4,9 338:2,6,12
206:4 337:21 270:4 276:21,22 137:9,11,19 143:2 certified 31:4
category 71:13 277:17,18 278:12 144:4 147:17 259:14,18
237:11 301:9,10 350:14 152:7,19 157:9 certify 335:8
catered 340:7 350:18 361:20,21 162:20 163:3 certifying 334:13
catering 147:19 455:10,18,19,20 168:14 171:11 334:15
cause 104:12,14 457:13 459:5 172:1 191:11 cetera 166:13 324:1
161:21 217:16 cell-like 271:11 216:19 217:14 343:14 439:3
227:19 233:17 cells 4:8 5:2 18:12 218:10 222:20,21 446:9 473:1
380:8 18:21 19:13 20:5 224:2,3 225:10 chairman 401:7
caused 99:21 82:20 91:9,12,15 233:8 238:12 challenge 127:18
caveat 397:21 91:16,19,22 92:3 262:9,20 263:4,11 128:14 141:1,6
CBA 220:14,19 92:16,19,21 94:2 263:14 268:10 145:3 151:1
221:1,11,15 226:5 94:4,8,16,22 95:3 273:7 290:18 153:15 175:10
233:9 95:4,9,16 98:11 296:8 299:19 191:5 192:18
cease 84:4 98:13 99:2 100:2 301:6,7 390:8 200:15 445:17
ceiling 98:14 209:6 100:7,20 102:2,22 391:15 392:20 447:16
ceilings 98:20 103:10,13 105:3,4 393:15 403:22 challenges 97:21
150:22 110:2 120:3,3 449:17 455:1,2 98:13 99:7 100:12
celebrate 257:16 126:4 129:9 141:3 465:6 145:9 149:16
celebrates 157:21 145:9,17 161:4,5 centerpiece 288:2 175:5 187:19
191:7 161:6 162:12 centers 275:7 446:14,19,20
celebrating 256:11 165:5,8 179:7 295:22 300:16 challenging 98:22
celebration 440:3 182:18 183:13 312:5 187:10 190:22
cell 91:13,14 92:16 190:22 206:16 central 56:17 232:14 239:4
96:14 97:6,9,10 207:5,8,20 208:4 certain 117:3 262:4
100:17 101:3,13 209:17,17 227:13 196:15 198:1 chance 172:20
101:15 104:15 227:16 233:17 259:16 264:19,22 405:14 470:21
105:7 120:12 256:10 263:1 274:7 303:1,2 change 94:8 104:16
123:17,18 129:11 269:7,11,16 270:8 329:16 360:15,16 104:18 205:5
129:11,16 132:8 270:12 271:14,19 360:20 385:13 306:14 308:22
132:12 136:20,20 271:20 272:9 certainly 23:13 349:18 353:5
144:18,18,19 273:9,10,12,16,22 43:16 144:9 373:19 402:2

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.584 **
 489

changed 90:19 362:18 185:14 192:20,21 381:7 386:22

202:9 306:11 children 214:7 193:9 214:7,16 400:21 442:19
348:8 377:8 263:18 215:10,19 216:10 463:3
402:13 407:3,14 children's 134:22 217:5 224:13,14 clarifying 63:17
431:18 224:2 440:3 465:6 224:20 231:1 64:16 269:10
changes 11:13 choice 143:11 232:6 235:2 246:7 347:21 367:3
36:18 135:3 176:5 Chris 3:4 21:8 88:8 255:3 259:6,8,10 381:13,14
204:21 357:7 141:4 284:16 262:1 263:10 clarity 131:13
375:3,5 377:11 Chris's 21:12 264:12,18 266:9 137:12 240:16
421:21 437:11 Christ 13:13 268:5,6,14 275:2 269:6
changing 137:3 Christopher 90:5 277:6 278:4,5 classification
178:3 465:18 chronology 196:19 289:1 296:18 338:16
Channing 193:17 chunk 208:16 299:19 301:3,20 classifications
193:18 321:15 church 13:12 318:10 332:9 337:19
character 118:1 203:19 204:1,3,5 340:6 390:12,20 clean 141:17
122:21 125:6 circle 111:2 390:22 392:4,10 365:17
127:15 129:4 circles 217:3 393:20 394:7,8,17 cleancut 332:2
134:18 137:17 circulation 30:22 400:2 404:10,14 clear 24:1 31:8 52:6
140:21 142:6 228:13,20 291:10 404:18 412:4,13 55:4 60:10 73:2,3
149:19 152:15 319:2 354:12 416:12 120:1 123:14
165:20 185:12 circumspect 81:21 city's 27:8 31:9 131:9,20 132:5,19
207:22 296:19 circumstance 130:19 215:4 134:3 161:18
332:16 358:12 274:22 288:7 177:12 253:8
419:19 428:11,19 circumstances city-owned 37:1 325:8 356:8 367:8
443:20 13:6 198:10 166:16,19 380:7 381:16
characteristic 472:13 citywide 289:6 382:2,6 402:21
101:10 150:11,14 cisterns 148:21 301:16 390:20 403:8,9 433:21
characteristics 330:2 393:11 434:1 469:5
60:11 101:8 citation 248:7 civic 124:22 268:1 cleared 5:1 364:20
127:20,22 128:6 citations 285:11 civics 57:18 367:13
128:18 271:11 cite 170:6 173:3 civil 126:3 clearly 23:19
438:2 cited 282:16 283:7 claim 9:14 12:18 154:10 199:7
characterization 302:21 307:7 69:2 78:18 389:2 206:8 231:12
42:13 48:20 49:5 403:6 claimed 24:5 234:17 255:4
61:13,14 62:8 cities 141:15 claiming 70:11 261:2 266:12
74:8 428:6,15 204:21 clarification 17:11 272:17 282:5
characterize citing 283:3 25:8 163:14 213:1 360:13 364:21
245:18 citizen 124:22 281:9 283:6,8,11 400:9 433:11
charcoal 154:1 130:15 470:6 339:14 409:2 client 407:8
chart 116:7 184:22 city 12:6 27:1 30:14 476:14 climate 64:19 65:14
424:4 32:5 34:16 37:15 clarified 361:15 65:17 66:1
charts 424:9 53:7 66:13 68:11 clarifies 122:6 clinical 237:11
Chase 412:19 71:19 72:6,11,13 445:15 395:12
check 17:1 21:8 79:18 100:22 clarify 31:21 62:11 close 197:17
426:10 461:5 124:22 135:12 87:3 119:22 243:12 266:7
checked 471:22 137:4 140:8 123:15 253:11 268:7 292:8,15
Chevy 412:19 141:18 142:17 269:9 276:2 318:5 452:11
chief 266:1 336:9 144:2,9 184:7 283:18 327:2 461:4

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.585 **
 490

closed 160:22 collectively 5:22 237:19 279:7 commission 28:14

closer 112:10 130:4 186:14 304:15 415:21 28:15,16 61:18,19
352:9 college 223:13 combine 172:17 61:20 125:1
closest 130:7 266:14 combined 220:11 190:19 247:7,9,10
clusters 349:10 colloquially 13:21 257:10 293:19 247:15,18 250:6
co-applicant 76:18 color 144:11 344:17 413:22 259:11 265:16
code 6:2 46:15 47:1 153:21,22 154:2 come 14:19 15:8 286:16 334:11
92:9 98:16 121:17 437:13 469:20 19:1 26:2 45:9 372:16,19 373:11
144:11 186:16 colored 107:5 46:3 51:15 59:11 373:17,21 374:4
190:21 191:1 coloring 94:2 73:19 86:4 106:10 378:14 401:11
248:8 250:16,18 colors 157:10 119:7 122:3 471:22
259:16 326:10 194:11 153:15 155:13 commissioners
334:5,8,17 335:1 Columbia 1:1,7,14 172:2 184:14 50:7
335:2,3,6,11,19 7:8 11:1 15:7,20 188:8 190:4 commitment 198:7
335:22 336:4,7 17:5 27:2 37:9 192:12 199:19 396:21 397:7,17
446:9 43:2 46:16 47:2 218:18 251:13 commitments
codes 334:12 53:12 56:18 58:14 252:19 263:22 365:3
470:14,15 58:18 59:7,10,19 264:14 265:4 committed 277:7
coffee 171:21,22 63:22 64:2,21 268:15 270:22 277:12 334:11
coherence 375:2 65:3 75:1,15 76:1 328:7 347:22 337:10 338:8
444:20 89:3,6,12,18 90:7 376:6 384:13 468:22
coherent 136:3 113:6 187:4 189:7 405:10 415:21 Committee 29:12
313:15 190:4 199:16 420:12 433:2 248:22 280:8
cohesion 258:17 230:19,22 231:22 437:11 467:2,4 common 32:5,9
cohesive 30:18 248:3 252:3 469:14,21 470:4 36:3 169:13
157:19 191:7 256:22 257:20 470:18 474:20 379:19
257:5 290:5 297:4 261:10 281:6 476:10 communicates
299:6 437:22 287:9 310:19 comes 9:19 152:3 280:21
439:3 320:4 330:10 195:13,14 332:3 communications
cohesiveness 334:20 354:16 365:21 13:1
192:6 378:8 385:18 comfortable 449:19 communities
cohort 339:6 388:15 389:11 coming 105:17 220:13 226:8
cohorts 172:19 391:5 395:2,19 132:14 143:1 337:1
collaborate 418:21 396:14 397:21 160:16 175:11 community 5:21
collaborated 400:5,10 402:6 176:13 195:10 27:3,6,21,22
418:17 411:20 412:8 239:7 257:7 263:2 28:11,12,18,21
collaboration 189:2 413:3 414:7 265:17 274:8,21 29:3,18,21 30:13
collapse 92:17 415:18 277:2 329:11 30:21 31:3 32:3
94:10 96:5,7 column 98:4 103:8 467:7 54:13 59:22 61:17
105:13,17 227:22 312:19 comment 304:11 61:22 65:4 127:1
collapsed 92:16 columns 91:20 317:16 350:6 127:5 129:5,20
95:14 186:7 98:3,10 102:21 commentary 373:7 130:3 131:17
201:17 207:6 103:11 104:15 373:7 132:7 133:4,6,20
collapses 95:16 105:9,13,15 comments 374:20 135:14 136:1
collapsing 104:16 145:19 201:10 commercial 29:5 137:9,10,18,19
colleague 423:20 202:2 207:14,21 30:3 130:7 214:22 138:7,20 141:8,9
colleagues 159:18 270:17 229:10 230:9 143:19,21 144:3
collection 416:9 combination 231:6 231:20,21 233:2 147:17,21 148:14

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.586 **
 491

151:6,7 152:7,19 243:9 289:21 422:14 430:2 compromise 95:2,7

157:9 158:19 386:10 387:3,10 447:5 160:22
159:12 160:6 387:21 complies 65:2 compromised
162:1,20 163:3 comparably 243:12 comply 365:2 99:22
168:14 171:11 243:15 component 38:21 compromises
180:8 186:13,20 compare 439:21 42:18 43:8 146:2 161:17,19
187:1,4,21 188:1 449:10 208:21 209:8,11 conceivably 162:7
188:5,7,21 190:1 compared 36:15 212:16 213:2,11 concentrating
190:2 191:11,20 134:5 244:3,20 214:4 220:6 224:7 392:3
195:22 196:4 245:9 390:11 230:10 232:16,19 concentration
199:11,16 206:6 comparing 328:14 233:2 234:1,2 225:7 392:7
213:19,21 214:2 compatible 149:14 261:4,6 263:15,20 concentrations
219:6,17 220:9 149:15 153:2,5 265:20 279:5 217:4
221:2,4,19 223:20 185:4 193:14 336:12,15 339:18 concept 135:6
226:21 233:7 194:13 195:8 343:9 399:18 169:22 174:10
236:18 244:19 298:6 443:17,20 401:21 402:17 175:5 194:7
255:3,7 260:14,17 444:2,5,6 404:2 440:20 198:12 207:2,4
260:20 261:1,3,17 compete 232:13 452:2,3 453:10 258:12 372:2
261:17 262:9,9,19 complement 242:6 457:15 392:2
262:20 263:2,4,11 complete 96:14 components 55:5 concepts 376:4
263:13 266:5,10 101:3,11 131:5 112:20,22 113:17 conceptual 125:5
266:16,21 267:3,4 145:22 146:1 117:6 119:15 concern 282:15
267:16,17,21 370:2 371:8 180:17 196:12 283:10 364:18
268:7,10,11,14 375:21 474:3 221:14 228:9 365:18
269:2 273:7 completed 106:16 232:17 262:16 concerned 363:3
274:13 275:7,16 106:17 215:12 263:19 264:2 concerns 58:14
275:19 276:1,4,10 372:12 337:13 338:5,11 266:1 358:19
289:2,19 290:17 completely 103:12 354:9 431:7 440:6 364:15 397:13
292:17 295:8 103:15 145:16 440:9 451:18 473:17
296:8 299:8,19 306:19 358:15 composed 153:14 conclude 13:6
302:9 312:2 365:10 366:7 comprehensive 6:7 241:5 279:16
315:22 316:1 377:4 410:12 65:9 128:4,17 405:8
338:21 339:2,5 415:7 441:4 456:6 130:19 190:18 concluded 241:11
343:18 350:8 468:7 199:14 221:7 242:18 277:9
352:11 455:1,2 completes 446:2 272:16 276:12 478:11
459:12 completing 113:4 278:6 286:8,13,15 concludes 101:18
community's 266:1 229:17 446:22 287:1,4,12,17,19 235:4 313:1
comp 135:20 complex 213:22 288:1,15,20 289:5 conclusion 31:7
295:11 309:12 229:17 238:22 291:20 294:2 64:3 66:22 101:6
323:22 357:12 301:14 302:2,4 122:18 145:10
compact 137:16 complexes 218:8 309:17 310:1,4,6 205:21 273:19
138:5 compliance 190:16 310:7 314:4 316:2 277:13 286:9
companies 270:11 190:21 446:8,21 316:4 317:1,22 309:7,18 377:16
company 212:10 447:19,20 448:10 325:10,12 330:14 conclusions 8:9
212:15 235:11,18 compliant 98:16 compression 93:3 9:13,20 11:3,7
252:1 148:13 93:3 13:10 59:11,16
comparable 36:8 complicated 119:2 comprise 290:13 64:1 66:6 90:17
184:12 200:7 238:22 358:17 comprises 213:12 concrete 91:5,10

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.587 **
 492

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219:5 306:14 conservators 119:6 393:8 419:18 contending 472:2
341:19 352:20 119:10 424:19 432:15 contention 444:4
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466:14 44:12 138:10 consisting 296:4 Contesting 2:8
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346:15,21 347:11 346:17 350:4,21 303:9 126:2,12 141:7
347:18 349:2 350:22 351:22 consolidating 142:15 156:7
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.588 **
 493

continuation 52:7 88:11 356:14 360:22 313:21 314:6

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223:11 Corcoran 200:8 costs 265:13 167:12 168:4
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.589 **
 494

456:7,8,16,17,21 214:11 219:9 cures 214:12 dangerous 96:8

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451:20 52:2 71:1 77:3 106:18,22 120:2 DCRA 121:17
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.590 **
 495

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.591 **
 496

152:9,22 153:3,16 269:1 459:11 310:9 312:1,15 128:1,18 130:8,21

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.592 **
 497

475:15 445:12,13,14 11:9,13,19 13:14 335:16

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.593 **
 498

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Division 22:13 downtown 266:2,3 111:6 112:3,15 470:19 471:11,18

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.594 **
 499

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.595 **
 500

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.596 **
 501

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.597 **
 502

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.598 **
 503

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.599 **
 504

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.602 **
 507

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.603 **
 508

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.604 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.605 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.606 **
 511

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.607 **
 512

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.608 **
 513

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.609 **
 514

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.610 **
 515

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.611 **
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194:10,11,11 344:9,10 346:20 machines 237:14 150:2 183:7

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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mash 305:21 87:21 169:14,18 377:13 378:14 395:4,8 412:12
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master 27:10 31:4 17:8 83:5 403:15 McMillan 1:6 4:9 46:8 53:14,20
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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median 72:17 285:12 308:17 301:14 303:12 413:21
Medicaid 216:12 316:22 317:12 308:13 309:11,18 mid-sized 230:3
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189:10 191:13,14 386:12 387:15 325:14 326:15 306:1
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224:21 30:15 43:9 45:4 402:22 403:10,17 244:16,18,19,20
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.614 **
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misinterpreting Monday 405:7 388:2 394:9 450:3 NCPC 250:11 280:4
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missing 116:21 472:10 478:5 multidisciplinary NCPC's 250:8,11
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.615 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.616 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.617 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.618 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.619 **
 524

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.620 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.621 **
 526

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.622 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.623 **
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presents 216:5 431:21 433:15 470:15 277:6 291:8 320:3
301:19 434:12 436:8,19 previous 22:18 privatization 61:5
preservation 1:2,14 450:9,14,21 458:9 88:18 90:18 91:2 61:11,13
4:13 5:14,15 7:10 459:20 460:7,8 240:12 402:16 privatized 60:5
10:6,17 16:7 472:15 474:1 previously 5:1 privileged 26:12
23:20,21 24:6,10 preservation/adapt 18:17,22 20:9 probability 239:6
24:11 28:15 58:5 130:21 22:22 90:9 93:1 probably 16:12
61:19 86:14,17 preservationists 94:7 98:20 113:7 32:7 35:10 37:12
101:13 106:5 256:16 113:19 140:8 46:7,13 74:14
113:20 114:22 Preservations 152:20 169:10 75:18 112:1 165:2
115:5 116:3 118:6 10:20 239:10 355:19 173:10 177:1
119:4 121:1,7,15 preserve 31:1 364:22 379:14 179:22 197:18
122:5,14 123:18 116:11 119:20,21 448:21 210:7 238:6
125:2,5 127:19 120:21 146:5,14 primarily 36:13 246:10 263:6
128:3 131:4 132:9 175:13 269:7 73:20 237:22 269:20 275:17
133:10 134:20 276:20 278:14 285:22 316:9 352:15
135:11 136:14 313:3 361:16,17 primary 153:21 374:18 422:1
138:12 139:1,2 362:12,13 364:6 311:21 312:3,4 435:7 466:22
142:5 149:17 368:13 369:1 436:1 472:11 473:2,3
157:21 159:9,14 409:7 462:8 primera 113:12 problem 9:9 16:15
159:16,19 160:6 preserved 116:14 principal 124:12 21:3 66:13 98:18
167:13 168:6,20 129:1 131:6,6,7 155:21 212:14 133:5,17,22
174:7,8 175:13,16 131:15 132:3,12 principle 414:22 211:21 394:10
175:18 177:21 132:15,16 133:12 principles 218:6,12 396:10 398:14,16
178:18 182:19 134:3,7,9 161:6 219:1 289:16 398:19,21 471:19
183:19,20 189:13 176:1 203:17 printed 210:16 475:4
196:9 206:18 219:14 228:2 251:10 problems 380:8
219:11,21 229:2 255:18 368:13 prior 7:2 18:7 19:2 procedural 7:17
233:8,16 252:13 430:17 432:10 45:14 52:8,9,14 17:8 211:7
255:11 262:13,17 451:13 457:21 60:9 93:15 247:5 procedure 7:7,9
264:15 265:13 458:15 459:7 247:12 249:17,20 8:18 17:6 78:12
269:6,13 275:6,8 preserves 16:21 258:2 307:8,10,15 121:1,9 122:15

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.624 **
 529

procedures 83:22 17:20 124:9 42:18 43:9 44:6 286:21 287:2,11

121:5 240:10 385:5 44:14 45:3 46:8 287:14,16 288:19
proceed 26:7 89:22 proffer 362:22 47:10 48:14 49:19 289:9 290:4 291:5
118:5 205:14 proffered 259:12 50:9 54:11,21 291:7,15 292:9,12
212:7 251:15 265:2,15 316:21 55:7,17 56:20 293:6,22 294:7,15
281:20 283:22 proffers 226:6 57:7 58:13 59:5,6 294:22 295:12
285:18,19 323:8 profitable 415:22 59:9,17 60:3,6,11 296:2,12,17,19
377:6 469:3 472:9 program 65:10 60:16,19 61:16 297:2 298:18
475:14 117:11 125:13 62:1,1,20 64:4,12 299:17 300:13,21
proceeded 241:16 127:7,8 128:18 65:10 66:18,19 300:22 301:15
380:6 130:1,7 133:20 70:12 74:4 75:5 302:1,7 303:12
proceeding 6:17 135:12 137:2,6,8 76:12 81:5 87:22 308:13 311:15
7:14 8:16 20:4 137:10,11 138:19 88:21 89:11 313:13 314:5,9,12
67:11 248:4,14 139:3 143:15 102:14 103:22 314:19 315:16
258:10 282:19 144:6 148:10 104:3 118:4 139:8 316:10 319:10,22
302:17 314:20 159:17,20 161:9 139:10 141:6,17 320:9,13 322:1
319:16 375:18 161:13,14 162:10 148:13 169:9,14 323:2 324:5,6,11
472:2 164:11,13 168:17 169:18 175:2,4 324:21 325:14
proceedings 33:16 171:4 213:12,15 177:14 180:13 326:2 327:4,10,17
88:18 91:2 257:19 216:4 219:21 183:19 186:5,15 327:20 328:3,10
282:9,10 220:7 229:8,21 186:18 187:2,8,10 328:16 329:2,8,14
process 7:12 8:17 230:1,11 231:10 187:17 189:1 329:19 332:10,14
13:7 16:2 17:3 231:11 233:1 190:3,3,7,9,14 333:4,10,21
61:21 113:10 234:2,5,6,14 199:12 200:6 334:13,16 335:8
203:22 221:2 241:4 252:13 203:6,20 204:10 335:14 336:12
228:8 236:7 258:4 278:1,7,9 205:7,11,14,19,22 337:8,13 339:16
256:19 257:2,12 279:13 296:13 206:1 208:7 339:18 341:5,18
263:3 298:3 343:5 298:15 348:1 212:12 213:3 343:4,10 345:13
366:3 368:3 370:8 350:7,9 413:19 214:1,4 216:16 345:15 346:6
396:4 397:1,3,9 435:10 225:3 232:21 347:13 363:6,6
398:3 400:20,22 programmatic 233:3 236:18 364:19 369:2,8,16
407:10 428:17 145:8 154:7 238:14 240:19 376:20 377:2
474:12 programming 28:6 241:6 242:2,3,5 379:6 383:19
processes 65:6 298:17 242:15 243:5 384:14 385:1,10
447:9,11 470:1 programs 216:12 246:4,9 247:11,17 386:16,17,21
produce 30:6 223:22 224:22 250:9 252:2,11,14 387:6,12 391:9,9
363:19,22 226:19 293:1 253:5 255:4,12 396:2,6 399:3,5,6
product 107:16 295:7 296:5 256:6 259:11,14 399:18 400:15
200:12 progress 133:9 259:17 260:6,19 401:18 402:5
professed 368:10 project 4:11 6:1 261:4,6 262:5,7 403:10,16,17
professional 16:10 12:10 14:19 15:14 262:21 263:5,20 412:12 415:4,22
16:21 78:21 79:1 18:13 24:16,18 264:2,9 266:1,3 418:15 424:19
79:10,13 89:2,5 26:14,20 32:7,10 267:19 268:6,21 434:21 436:3
89:13 171:16 32:11,13 35:21 272:3 273:4 446:10,15 447:5,8
311:5 421:2 431:1 36:6,7 37:1,19 274:19,21 275:2 447:11,21 448:1,2
professionals 38:7,13 39:7,10 275:10 276:8 450:6,22 462:1,5
189:5 39:18,20 40:6,22 277:7,8,10 278:11 463:6,22 467:20
professor 10:19 41:11 42:7,8,10 279:5,15 286:6,13 474:3

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.625 **
 530

project's 45:5 29:10 76:9 115:6 252:7,10 258:13 310:4 335:11

174:7 213:19 212:21 261:22 264:10,14 proximate 242:12
221:6 223:3 234:9 proposals 276:4,17 265:11,14 267:14 344:11
projected 37:19 propose 252:14 275:21 285:10,14 proximity 292:15
projections 198:18 proposed 4:19 5:13 300:5 301:2 313:4 318:5 389:4
projects 5:13 29:2 6:3 8:8 9:12,20 318:3,21 342:14 public 7:20 22:13
32:5,9 36:3,9,15 11:6 30:1 101:6 342:21 345:2 28:8,20,22 31:4
36:19 37:5,6 38:9 115:5 119:1 373:2 396:2 32:2 45:15 60:1,2
45:9,16 46:3,6,9 122:19 125:14 provided 16:3 17:4 60:5,11,16,22
46:11,12,17 47:3 163:8 174:7 29:13 74:21 94:15 61:4,11 68:19,22
58:18 64:20 68:10 177:15 185:2,6 116:9 118:3 143:8 69:1 78:4 80:1,3
75:14,19 87:18 187:18 227:4,19 183:7 185:9 101:16 106:14
144:6 156:21 233:10 287:11 203:20 236:14,21 107:8 109:17,18
158:8 169:13 294:17 303:17 261:19 266:11,13 117:12 125:4
172:16,17 184:13 307:18 311:10 295:16 297:20 129:10 138:15,17
184:14 200:21 347:19 349:8 302:6 304:4 315:5 139:13,19 140:7
229:20 250:17 361:20 432:2 315:6 319:9 320:1 146:10 152:6,13
259:8,15 264:3 proposing 118:21 320:9,13 340:14 152:16 170:11
266:19 268:5 125:13,19 145:22 365:4 373:4,10,11 171:17 172:10,12
272:21 320:3,3 146:4 160:1 407:7,9 412:16 191:10 196:5
328:21 329:4,6 162:14 269:7 465:11 477:10,17 198:16 207:4,4
334:21 335:7,12 270:3 Providence 218:10 218:15 221:3
336:3 341:11 proposition 112:6 provider 392:20 225:4 226:1 256:1
343:10 372:13 protect 293:20 provides 9:21 17:1 256:2 263:5 264:6
386:7,11,15,19 301:1 27:1 30:2 96:4 264:7,8,15 265:1
387:5,10,14 414:9 protected 84:8 121:9 129:19 274:18 275:5
prominent 219:22 304:15 135:21 138:6 278:6 287:20
promising 368:12 protecting 332:17 139:18 140:14 288:3 290:10
promote 161:2 protection 4:17 143:7 157:17 297:19 298:15
289:20 291:21 293:2,3,7 296:18 158:3,9 159:9 324:20 337:2
294:7 300:14 325:3 182:16 213:13,17 402:2 439:11
promoting 332:22 326:19 332:8 216:15 225:14 445:1,2 470:18
promotion 295:10 333:9 226:4 252:15 public- 277:5
prongs 268:16 protections 363:5 288:4,12 289:22 public-private 37:6
proof 403:21 protects 290:1 333:14 339:16,20 38:8 46:2 87:15
proper 411:20 305:16 333:4 341:19 346:6 259:4
properly 22:18 protocol 121:6,22 353:2 publicly 47:2
474:13 protocols 59:10,15 providing 137:18 158:21 207:7,8
properties 13:22 proton 237:13 182:17 200:18 216:11 224:21
14:6 44:14 287:8 proven 224:4 233:3 235:20 289:11 292:3
property 12:3 36:14 provide 5:17 67:22 292:4,6 295:17,20 294:10 299:12
125:16 90:14 140:10 300:15 301:3 PUD 220:15 226:6
proportional 442:1 143:10 144:7 338:20 411:5 372:15
proportionally 185:7 188:6,7 provision 281:8 pull 278:9 386:5
203:2 189:18 196:4,4 283:4,5,14 287:7 pulled 208:17
proportions 441:18 204:8 210:16 336:8 476:14 punching 271:1
445:17 221:6 223:14 provisions 250:18 purification 158:1
proposal 11:11 225:1 231:18 280:11 287:4 purported 317:7

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.626 **
 531

purpose 69:13,16 380:4 394:18 324:14,19 325:1 86:19 87:12,14

69:17 83:5 99:14 462:18 465:1 325:17 327:2,5 101:21 114:5
117:8 380:12 328:17 332:5 163:13 167:10
429:5 Q 333:22 334:3,22 206:8,11 210:1
purposes 28:21 qualifications 340:11 341:21 211:2 235:6,9
67:10 125:17 247:4 248:21 342:4,8,17,17,20 236:11 245:14
168:8 173:10 279:22 346:10,11,13 252:19 279:18,21
174:19 206:13 qualified 88:13 347:6,17,21 309:8 310:3
281:2 302:18 89:9 106:4 124:6 348:11 350:2,17 313:16 316:13
367:10 376:21 124:7 239:10,21 350:20 351:2,9,19 318:15 324:17
379:7,18 380:1 246:19 323:19 351:21 352:5 335:19 345:11
383:10 424:20 334:1 354:10 358:18,20 364:15 365:6,8
429:4 qualifies 388:19 359:21 360:14 369:4,10,14 370:7
pursuant 1:15 7:9 qualify 89:11 314:9 362:4 365:1 367:3 375:17 383:16
pursue 222:16 441:2 367:7 368:18 406:7 407:17
231:4 232:21 qualifying 55:14 371:15,18,22 417:5 418:3
475:2 qualities 24:14 372:10 374:1,2,8 420:22 421:22
pursued 24:3 106:22 376:8,10 377:15 426:5,11 427:18
pursuing 167:5,7 quality 297:18 377:19 382:22 446:3 448:17
219:1 quantified 321:2 384:5 385:3 387:1 466:20 467:14
purview 45:10 46:4 325:19 326:5 392:11,16,18 468:1 475:19,20
push 68:5 188:3 327:16 393:13 394:21 476:6
355:14 quantify 326:21 399:1,1 402:11 quibble 40:17
pushed 219:7,12 340:21 384:10 403:13 406:15 quick 32:1 51:16
put 71:7 76:19 81:3 quantity 297:18 410:11,19,21 87:14 92:1 101:20
81:10 86:22 87:2 query 364:1 420:6,15 421:16 104:21 121:19
92:10 111:1 question 5:16 430:1,13 433:20 122:3 123:12
120:22 123:13 17:11 21:21 31:16 434:20 436:14 167:10 206:7
160:14 162:17,19 32:1 34:2,20 36:1 439:14 440:12,18 quickly 100:8
173:21 192:21 37:13 38:5,7 39:4 458:22 461:9,12 116:15 210:15
194:8,17 205:13 40:9,14,19 42:1,2 461:17,20 463:2,4 252:20 267:6
214:19 253:2 42:4,14 43:21 463:9 465:18 quiet 79:5
254:1 269:3 44:1,11,15,19,20 470:22 474:22 quite 19:1 88:21
270:17 272:15 45:8 46:1 49:16 475:2 476:22 102:17 108:9,11
274:3 278:5 295:9 58:10 59:1,2,14 questionable 109:12 154:19
329:15 331:17 61:8 63:19 66:3 320:11 169:15 188:3
351:16 353:6 67:9 70:2 72:3,11 questioning 76:14 230:20 258:5
369:16 372:15 72:18 74:15 78:10 316:16,18 365:11 287:3 313:14
406:19 463:10 78:11 80:13 85:9 questions 17:22 317:4 437:17,17
466:6 468:19 86:1,12 102:12 22:17 31:14,17,20 440:7 458:14
472:10,13 104:22 111:7 32:16 33:3,6,21 quote 29:14 30:14
puts 74:4 123:13 136:5 34:3,10,13,19 104:1 237:17
putting 98:9 102:15 165:10 169:20 35:5,12 44:7 45:6 243:9,13 287:10
103:10,11 104:9 210:13 211:7 47:10,16,20 48:3 287:16
104:10 112:4 240:18 248:15 48:6 50:16,22 quoted 66:16 308:1
141:22 145:19 259:9 305:2,4 51:8,17 52:3 59:3 quoting 69:22
166:1 245:17,19 319:8,14,18,21 77:11 79:12,15 287:6
322:7 330:2,3 321:21,21 323:9 80:14 81:8 84:3

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.627 **
 532

R reaching 217:19 394:21 395:3 recommend 29:15

race 469:20 reaction 304:22 403:15 416:8,18 469:2
rack 149:3 reactivate 30:12 417:9 424:22 recommendation
railings 154:1 read 167:12 258:16 428:1 429:19,22 115:11 117:15
rain 148:20 280:19 281:18 430:2,10 436:17 118:13,14 331:12
raise 26:2 247:5 284:22 357:2 442:7,9 444:9 357:19 358:14
raised 6:11 22:17 427:16 445:7,16 446:2 recommendations
367:14 428:9,10 reading 39:2 459:15 461:4 115:15,16,17
raises 358:19 365:1 161:18,19 194:1 470:2,10 116:7,15 119:1,8
ramifications 216:8 209:19 251:2 reason 62:2 339:8 357:5,8 432:9
224:18 227:12 reads 153:20 352:10 363:16 recommended
ramp 91:14 ready 21:5 22:22 367:20 449:21 116:4,18,19,21
ran 93:19 448:16 64:19 65:17 66:1 reasonability 265:7 331:2
467:18 212:7,8 262:6 reasonable 6:13 reconcile 425:1
range 176:5 230:1 313:6,10 13:10 21:9 34:8 reconciled 376:6
237:3 242:16 real 15:16 112:15 211:8 227:7 reconciling 403:5
245:20 288:14 216:22 230:17,19 233:13 265:5 reconfiguration
290:13,14 292:4 235:20 271:19 275:1,12 277:5 228:17 229:1
292:21 295:18 380:2 388:8,12 309:19 381:8 reconfigured
302:6 387:7 389:3,5 411:2,7 468:6 475:15 345:16 348:7
414:16 411:12,21 412:3 reasonably 218:2 reconfiguring
ranging 94:5 412:10,17 413:2,8 228:18 471:1 347:13 351:22
rank 68:17 420:20 413:14 414:6,22 reasoning 434:4 reconstructed
423:3 415:15,19 416:5,7 reasons 9:18 11:17 116:22 117:1
ranked 215:22 416:15 187:8 190:22 129:5,6 149:8
394:10 420:10 realistically 274:2 224:6 230:11 356:17
423:8 realize 120:17 466:5 reconstruction
ranking 430:8 344:6 rebuilding 116:6 116:5 117:2 177:4
rankings 430:12 realized 195:7 117:3 178:15 181:16
ranks 430:5 Realizing 141:22 rebuttal 8:4,5 471:6 185:2 296:6
rapidly 215:15,21 really 12:22 17:22 recall 51:4 80:2 record 6:19 7:2,3
rare 264:3 41:21 50:11 67:5 88:16 355:7 13:8 20:22 22:2
rarely 36:22 216:6 67:19 71:17 75:8 recalling 153:11 44:22 49:6 50:13
rate 27:13,14 162:8 78:15 82:2 83:20 recalls 155:8 50:15 52:6,7,8,14
232:3 242:21 102:17 107:16 receipt 48:7 52:15,16 57:9
261:10 266:8 108:9 117:18 received 48:5 50:7 63:13,14 72:9
292:18 411:2 154:3 156:2,16 280:4 74:21 76:10,20
412:15,16 416:21 163:13 172:6,16 receives 43:12 77:1,9,12 87:2,8
rates 232:6 413:13 177:22 181:10,14 recess 281:18 92:8 109:3 212:4
ratings 148:15 182:11 192:8 recipient 13:1 224:5 229:16
ratio 395:1,7 208:20 209:7 reciprocal 177:18 240:12 253:2,11
raze 48:1,3 473:1 211:19 248:16 reciprocally 181:7 254:1 256:18
474:1,13 249:2 257:16 recognize 145:15 260:6 269:4
RCL 239:18 270:12 273:9 157:15 254:21 272:11 273:1
re- 18:5 305:4 315:20 255:1 257:19 281:22 284:7,22
reach 96:1 172:13 333:18,21 345:14 289:13 302:12,16,18
reached 327:10 349:17 358:18 recollection 421:9 303:1,3,10,13
reaches 163:16 366:1,17 379:14 422:3 452:14 304:13 305:22

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.628 **
 533

306:9 309:3 313:3 reevaluate 429:3 411:18 98:18

343:7 349:5,6 refer 77:16 84:17 regional 202:10,10 reinforced 96:15
362:10 406:19 248:22 426:15 Register 63:8 97:7 185:11 270:9
432:22 474:9 reference 92:15 106:19 reinforcement
476:16 332:8 410:10 Register's 114:14 93:12 166:3 408:3
recorded 109:4 431:16 regrading 93:17 409:9 410:5,7
110:11 referenced 388:13 regs 46:21 reinforcing 92:4
records 107:22 references 183:17 regular 110:4 102:7 166:2
recreating 139:20 referred 13:21 91:9 197:22 407:20
recreation 28:3 109:19 235:9 regularity 448:10 reiterate 99:11
106:14 125:17 referring 39:15 regularly 97:15 258:22 260:6
144:8 158:20 62:20 65:14,17,18 regulated 98:9 reject 11:10
191:10 288:16 65:21,22 73:13 303:4 rejected 12:17
290:17 292:17 103:22 312:9 regulation 302:15 13:18
295:12,15,22 330:18,20 343:8 326:10 446:22 rejecting 11:18
297:20 300:16 348:14 378:10,12 regulations 7:8 relate 57:2 140:12
301:6,7 420:1 421:17 65:3 251:3,6 140:13 153:6
recreational 28:22 424:4 436:17,18 254:11 286:17 154:8,14 157:12
30:3 107:9 110:19 454:12 459:15 302:20 308:8 219:13 296:2
158:22 179:14 refers 63:8 281:3 329:12 353:10 372:22
295:19 332:12 420:7 regulator 114:18 related 56:16 70:19
rectangular 177:16 refined 137:3 116:12,17 130:10 71:22 75:3 128:12
red 94:4,9,9 389:20 257:15 131:7 133:2 148:1 222:17
redacting 20:22 reflect 44:22 140:22 150:1 304:18 305:10
redevelopment reflected 425:15 151:5,9,17 152:11 319:8 362:17
244:20 300:17,19 reflecting 137:3 155:18 160:14 389:3 410:16
redirect 51:17 reflects 125:3 167:16 168:1,19 442:5
87:14 135:20 169:7 176:8,11,12 relates 252:7,8
reduce 6:15 149:6 refresh 106:13 192:1 255:19 294:3 299:1
221:10 227:9 421:9 452:13 420:4 348:11 372:22
233:13 265:12 refresher 91:1 regulatory 65:6 461:18
309:20 315:1 refuted 416:20 130:15 136:1 relating 82:14
346:4 348:4 349:3 regard 248:18 190:15 446:7,8,19 89:10 155:21
349:15 462:7 253:10 256:13 447:18,20 288:7 370:8
463:8 258:20 265:19 rehab 133:3 relation 26:19
reduced 44:13 267:1,11 269:11 rehabilitate 116:12 57:20 297:12
72:19 231:11,13 269:12,15 272:10 146:5 311:16 348:14
304:6 345:16 275:11 279:15 rehabilitated relationship 8:15
reduces 279:10 341:4 444:15 115:22 116:3 12:20 58:4 131:10
reducing 272:11 regarded 240:13 129:1 134:8 131:20 132:6,20
345:14 347:11 regarding 250:12 178:10 459:7 177:18 180:15
461:14 462:16 280:5 460:2 182:7 311:15
reduction 227:19 Regardless 95:8 rehabilitation 441:19,20 443:12
229:6 304:3 272:21 116:19 118:22 453:17
326:18,22 346:12 regards 84:7 135:11 176:2,3,4 relationships 437:6
464:2 403:16 178:3,6 299:4 relative 113:18
reductions 308:21 region 225:7 458:13 206:18,21 358:9
reenvision 219:22 230:17 411:13,14 reinforce 96:22 361:2,6,9 420:21

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.629 **
 534

relatively 207:3 removed 120:2 7:20 327:19 334:17

405:17 193:16 201:13,15 represented 108:18 348:19 349:20
released 331:5,14 232:19 248:6 365:2
relevance 45:14 removing 98:17 representing 21:9 requires 4:18 43:1
50:10 53:17 54:4 186:8 234:8 21:13 22:7,15 43:11 69:5 96:22
59:2 240:17 render 230:7 410:8 250:20 369:8 100:15 190:16
399:20 401:8,12 rendered 20:18 represents 94:2 232:20 329:14
relevant 6:12 25:8 24:8 217:5 225:18 375:13
45:16 50:19 54:5 rental 27:15 292:13 369:9 434:11 res 382:9,11
58:21 67:5 77:10 reopen 20:10 repurpose 151:15 research 214:11
81:17 302:21 repair 116:4 176:5 repurposed 151:17 414:17 426:17
360:7 368:8 185:18 repurposing reserved 41:16
467:15 repaired 458:11 152:12 157:2 reservoir 106:13
reliant 214:17 repeat 240:11 160:20 168:1 108:16,16 126:3
relic 99:19 408:9 217:11,21 179:13 181:12
rely 407:12 repeated 118:8 reputation 16:6,10 182:7 196:22
relying 76:4 repeating 100:21 request 17:12 197:5 300:17,19
remain 6:21 11:9 313:16 20:16 31:7 47:20 resident 469:13,17
93:6 98:21 164:3 repetition 99:11 219:17 306:13 470:8
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.633 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.639 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.641 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.642 **
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107:9 108:14,20 301:18 303:14 totals 220:10 transformative

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.643 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.644 **
 549

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.645 **
 550

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.646 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.647 **
 552

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396:8 465:3 125,000 267:8 18 136:14,19 248:8 417:12,16 418:13

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1.183 241:8 384:1 301:16 1893 307:1,19 2009 131:22 238:19
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10 27:18 46:12 69:5 132:12 136:20 2013 137:22 401:5
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C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Application of Vision McMillan

Partners, LLC and the D.C. ODMPED

Before: D.C. Historic Preservation Review Board

Date: 07-14-17

Place: Washington, DC

was duly recorded and accurately transcribed under

my direction; further, that said transcript is a

true and accurate record of the proceedings.

-~-~y5 c
-----------------------
Court Reporter

NEAL R. GROSS
COURT REPORTERS AND TRANSCRIBERS

(202) 234-4433 ** JPA.651 **

1323 RHODE ISLAND AVE., N.W.
WASHINGTON, D.C. 20005-3701 www.nealrgross.com
[BLANK PAGE]

** JPA.652 **
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DISTRICT OF COLUMBIA

HISTORIC PRESERVATION REVIEW BOARD

HEARING

---------------------------------
IN THE MATTER OF: :
:
Applications of Vision McMillan : HPA 14-393
Partners, LLC, and the District : HPA 15-133
of Columbia Office of the :
Deputy Mayor for Planning and :
Economic Development :
---------------------------------

Monday,
September 11, 2017

The meeting of the District of

Columbia Historic Preservation Review Board
convened in Room 220 South of 441 4th Street, NW,
Washington, DC 20001, pursuant to notice, at 9:00
a.m., Peter Byrne, Hearing Officer, presiding.

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APPEARANCES:

On Behalf of the Applicants:

CAROLYN BROWN, ESQ.

Donohue and Stearns, PLC
1750 K Street, NW
Suite 12-34
Washington, DC 20006
(202) 763-7538
carolynbrown@donohuestearns.com

Contesting the Applicants:

ANDREA C. FERSTER, ESQ.

2121 Ward Court, NW
Fifth Floor
Washington, DC 20037
(202) 974-5142
aferster@railstotrails.org

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C-O-N-T-E-N-T-S

WITNESS PAGE
VMP Panel. . . . . . . . . . . . . . . . . . . . .26

Brook Hill . . . . . . . . . . . . . . . . . . . 180

Brett Williams . . . . . . . . . . . . . . . . . 198

Stephen Hansen . . . . . . . . . . . . . . . . . 215

Rebecca Miller . . . . . . . . . . . . . . . . . 246

Jim Schulman . . . . . . . . . . . . . . . . . . 266

Claudia Barragan . . . . . . . . . . . . . . . . 297

Laura Richards . . . . . . . . . . . . . . . . . 328

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1 P-R-O-C-E-E-D-I-N-G-S

2 9:04 a.m.

3 MR. BYRNE: Well, good morning

4 everybody. Welcome back once again. My name is

5 Peter Byrne. I am the designated Mayor's Agent

6 Hearing Officer for this matter, which addresses

7 a remand from the Court of Appeals on

8 applications to demolish underground cells and

9 application to subdivide at the McMillan sand

10 filtration site at 2501 1st Street, NW for

11 construction of a mixed use project.

12 Today, we are continuing the hearing

13 from July 14th. These applications are assigned

14 Historic Preservation Act Nos. 14-393 and 15-135.

15 On January 11th, the Mayor's Agent issued orders

16 setting the issues to be addressed in the remand.

17 There are four issues:

18 (1) Do the proposed project's

19 historic preservation benefits taken as a whole

20 outweigh its historic preservation parts, and in

21 addressing this question, the parties are

22 requested to provide legal analysis as to how

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1 such an inquiry should be conducted consistent

2 with the Act.

3 (2) What are the specific

4 architectural land planning or community benefits

5 that individually or collectively may make this

6 project of special merit within the meaning of

7 D.C. Code 6-1102.

8 (3) Is the proposed demolition or

9 subdivision necessary to obtain the special

10 benefit, special merit benefits identified.

11 (4) Are there reasonable alternatives

12 that would achieve the same special merit

13 benefits, but would avoid or reduce the need for

14 demolition or subdivision.

15 A reminder that everything entered

16 into the record in the prior cases remains in the

17 record, and I ask the parties to please try to

18 avoid duplication. As part -- at the last

19 hearing, I promised to put into the record a copy

20 of a contract that I have as a hearing officer

21 with the District of Columbia, and that has -- I

22 have now done that, and the parties should have

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1 copies of it.

2 On July 14th, we received a

3 presentation of the applicant's case, and we had

4 cross-examination by Ms. Ferster on behalf of

5 Friends of McMillan Park. Today, we're scheduled

6 to begin with cross-examination by Mr. Otten for

7 D.C. for Reasonable Development.

8 After that, we'll have presentation by

9 the parties in opposition to the applications of

10 their case, and after that we have time for brief

11 statements by other persons, either in support of

12 or in opposition to the application within the

13 terms of the remand.

14 Then we'll hear rebuttal by the

15 applicant and surrebuttal by the parties in

16 opposition to the application, and when we're

17 clear when this hearing process will end, we'll

18 give the parties 30 days to submit proposed

19 findings of fact and conclusions of law.

20 So with that, we can begin. Mr.

21 Otten, clear? All right. Mr. Otten, you're on.

22 MS. FERSTER: Good morning.

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1 MR. BYRNE: Good morning.

2 MS. FERSTER: I have a preliminary

3 matter.

4 MR. BYRNE: We do, okay.

5 MS. FERSTER: I think it's the

6 appropriate time to raise it.

7 MR. BYRNE: Sure.

8 MS. FERSTER: For the record, I'm

9 Andrea Ferster, counsel for Friends of McMillan

10 Park. Certainly after this hearing was

11 scheduled, which I believe was sometime in

12 August, I sent a message to the Historic

13 Preservation Office asking that this proceeding

14 be webcast using the technology available in this

15 room so there could be simultaneous webcast of

16 these proceedings.

17 That is something that is very

18 important for opponents such as Friends of

19 McMillan Park, and I imagine others, as well as

20 persons who wish to testify on this matter,

21 because unlike Applicants, most I think everybody

22 has a regular job or responsibilities that keep

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1 them from attending the full hearings for today.

2 And the webcast really allows both our witnesses

3 as well as members of the public to monitor the

4 proceedings, so they know approximately when

5 persons who are appearing, persons who are from

6 the public have an opportunity to appear, when

7 their time will come so that they don't have to

8 spend a day in this proceeding.

9 That's particularly important here,

10 because I think there's certainly a possibility

11 that these proceedings may carry over to another

12 day. So that telecast would really be helpful to

13 the public. On Wednesday, you know, many weeks

14 after I'd sent my request, I received a fairly

15 summary response from the Historic Preservation

16 Office, that these proceedings would not be

17 webcast.

18 So I am asking you, by mention here

19 today, to exercise your discretion to direct that

20 these proceedings be telecast, so that our

21 witnesses who are not present immediately are

22 able to monitor this proceeding as well as

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1 members of the public, and then I have another

2 preliminary matter after you address this one.

3 MS. BROWN: Good morning, Mr. Byrne.

4 MR. BYRNE: Good morning, Ms. Brown.

5 MS. BROWN: Carolyn Brown from the law

6 firm of Donohoe and Stearns on behalf of the

7 Applicant, Vision McMillan Partners. I think we

8 don't care one way or the other, other than if

9 it's going to delay this proceeding in any regard

10 in trying to get that set up, I think that we're

11 perfectly fine proceeding without it.

12 You know, it's just luck that we have

13 this room and in other Mayor's Agent proceedings

14 we don't have that advantage, and there's no

15 requirement for live webcasts, so I'd leave it

16 your discretion.

17 MR. BYRNE: Mr. Callcott, you want to

18 -- I think that on behalf of the office, would

19 you like to make a statement?

20 MR. CALLCOTT: Yes, good morning. The

21 Office of Planning contracts for Historic

22 Preservation Reserve Board meetings to be

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1 livecast and those archived for the public to

2 view. We've never done that for a Mayor's Agent

3 hearing process review process before. Instead,

4 we provide a written transcription as that's

5 often needed in the cases of an appeal. So we

6 provide a public record of the proceedings

7 through the transcript.

8 MR. BYRNE: All right. Well, I think

9 Ms. Ferster, I think there are ample alternative

10 means for you to let your witnesses know when to

11 come. I mean you have cell phones, they have

12 cell phones, and if they're at work they can't be

13 sitting around watching video.

14 MS. FERSTER: If that's a question,

15 the answer is no. Many of them are able to sit

16 at work and other places, watch their children,

17 whatever with the live webcasts on behind them.

18 I've done myself any number of times and no, cell

19 phones are not an alternative for the members of

20 the public, many of whom I do not know, have no

21 way of reaching them.

22 MR. BYRNE: Okay. Well, if you don't

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1 know who they are then I can't be too -- no. So

2 this has never had -- the Mayor's Agent hearings

3 are adjudicative hearings. They have never been

4 webcast live, and I don't think -- I don't think

5 that's a good precedent.

6 They have a -- these are -- we try to

7 decide these cases based upon evidence according

8 to the Act, and while it's valuable to have

9 public input and hear the views of concerned

10 citizens, I don't want to turn this into a quasi-

11 political event. So I'm going to deny that

12 motion.

13 MS. FERSTER: An objection should be

14 noted for the record. And then the second

15 preliminary matter I wanted to raise was at the

16 close of the hearing. There are a number of

17 items that have been identified that would be

18 provided to Friends of McMillan Park and other

19 parties in advance of this hearing, presumably in

20 advance who would appreciate now having received

21 the contract that had been promised by you, we

22 have received that today.

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1 But we have not received anything from

2 the applicant, and that's particularly

3 problematic for us because one of the -- and I'll

4 just identify one of the items is that we had

5 specifically queried the applicant on the number

6 of units of housing that would be available for

7 families, particularly the breakdown between one,

8 two and three bedroom apartments, and the

9 breakdown as between the affordable housing

10 component and the market rate housing component.

11 We have not received any of that

12 information as of yet, and that has impaired my

13 experts' and my witnesses' ability to prepare for

14 this hearing. So I would ask that that

15 information be provided immediately.

16 MR. BYRNE: Ms. Brown.

17 MS. BROWN: Carolyn Brown again for

18 Vision McMillan Partners. We're fully prepared

19 to submit that to the record. We do not have it

20 prepared to submit this moment in advance of the

21 applicant's or the opposition's case, and there

22 was no requirement that we give that to anyone

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1 prior to the start of the opposition's case. It

2 will be supplied for the record. We'll be

3 prepared to testify to it in our rebuttal.

4 MS. FERSTER: Well, that makes it very

5 difficult for us to present our opposition

6 testimony. So I think Mr. Otten is prepared to

7 cross-examine the witnesses on that point, so

8 that we can have it available so our witnesses

9 can hear it, and I hope the witnesses will be

10 prepared to answer those cross-examination

11 questions now, because we really are impaired by

12 not having that information. And then I would

13 simply add that I don't think it's enough to wait

14 for your rebuttal. I think you should provide it

15 immediately.

16 MR. OTTEN: Mr. Byrne, I would happen

17 to agree with Ms. Ferster on this. We also

18 received an email from you last week. At the end

19 of the hearing in July, we were -- it was told to

20 us that we would get the 200 pages that was

21 handed to us the day of July 14th electronically,

22 so that we could analyze it and have it on our

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1 computers and share it with our experts.

2 We've never gotten that. I've

3 inquired with Ms. Brown about that, and it was

4 largely dead air, and it has impaired us. It has

5 impaired us by not having this stuff that should

6 be on the record certainly electronically as the

7 applicant presented it electronically from a

8 laptop. We don't understand why that wasn't --

9 MR. BYRNE: Okay. So Ms. Brown, did

10 you promise to give him material electronically?

11 MS. BROWN: I just want to make sure.

12 Are we finished with Ms. Ferster, before we go

13 into to Mr. Otten's.

14 MR. BYRNE: Oh yes fine. Thank you.

15 MR. OTTEN: It's very similar. It's

16 similar points.

17 MR. BYRNE: Please, please. Proceed

18 as you wish.

19 MS. BROWN: So number one, I think

20 it's your prerogative to conduct the hearing the

21 way you choose to conduct it, and not at the

22 direction of Ms. Ferster and what she wants when

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1 she wants it. Secondly, with respect to the

2 request for the electronic files and the slides,

3 number one, Mr. Otten was presented -- given a

4 copy of the printout of the slides on July 14th.

5 He hasn't prepared for his hearing.

6 Secondly, we have them here today so

7 he can cross-examine our witnesses, so we have

8 them available.

9 MR. BYRNE: Which, the electronic ones

10 or --

11 MS. BROWN: We have the slides today.

12 MR. BYRNE: That's fine.

13 MS. BROWN: -- which you see on the

14 screen here, so that he can properly cross

15 examine as we go through them. There's no

16 requirement that we provide an electronic copy of

17 them. Number four, he was supposed to be doing

18 his cross examination on July 14th, so he still

19 would not have had a copy of the electronic

20 version.

21 So we've completely fulfilled our

22 legal requirement to give him the required copy.

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1 MR. BYRNE: Just to recall, thank you.

2 Just to recall, you did not represent to Mr.

3 Otten that you would give him the electronic

4 copy?

5 MS. BROWN: Absolutely not. They're

6 proprietary information of the architects, and we

7 gave him a hard copy. But we want to make sure

8 that they do not get altered in any manner.

9 MS. FERSTER: Just for the record, she

10 did specifically promise that she would provide

11 this information that we requested, and you now,

12 I'm sorry that I took her at face value, that

13 that would be provided in a timely manner.

14 (Simultaneous speaking.)

15 MS. BROWN: That's a complete

16 mischaracterization. We clearly said that we

17 would provide the information. We did not say

18 that it would be provided for her benefit at the

19 beginning of this hearing or prior to it. So I'm

20 quite aghast that she believes that, but it will

21 provided to the record as required.

22 MR. BYRNE: Okay. So Ms. Ferster, the

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1 information that you're interested -- the

2 information that you wish to have for cross

3 examination has to do with the why. It has to --

4 you mentioned the number of units that were

5 available for families?

6 MS. FERSTER: That's correct. That

7 was a cross examination question that we are that

8 -- information that our witnesses need in order

9 for them to testify in our opposition case, and

10 it's just not sufficient to -- for them to

11 provide that as rebuttal. It's not rebuttal.

12 We're not rebutting. We can't provide

13 information that there are insufficient units for

14 families, for example, when we don't know that

15 information.

16 So it's not appropriate as rebuttal.

17 It is -- the time frame is now, so that our

18 witnesses can have that information to prepare

19 our case, not later.

20 MS. BROWN: If I may, Ms. Ferster has

21 copies of the drawings and her witnesses could go

22 through and do a unit count themselves. So

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1 they're not impaired in any regard about what is

2 in the record.

3 MR. BYRNE: Do the drawings indicate

4 the size of the units?

5 MS. BROWN: I believe they do.

6 There's a -- I believe there's a chart that shows

7 the number of units.

8 MR. BYRNE: Not a chart that shows the

9 number of units; the number of units of different

10 sizes?

11 MS. BROWN: But not the number of

12 bedrooms in a unit.

13 MR. BYRNE: Not the number of

14 bedrooms? So it's the number of rooms, but not

15 the number of bedrooms? Is that what you're

16 saying?

17 MS. BROWN: I don't even know that it

18 shows the number of rooms. It just shows the

19 number of units. We have the printouts that

20 we're going to be supplying today for the record

21 of the number of units, and I'm sorry if that

22 impairs their ability to present their case, but

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1 we are providing the information that was

2 requested, and frankly we don't have to provide

3 it.

4 MS. FERSTER: And if you are providing

5 it, we would appreciate that if you would provide

6 it now, and if you're not willing to provide it

7 now, we would ask the Mayor's Agent to direct the

8 applicant to provide the information that they

9 have apparently have and are holding up until

10 some subsequent month, to provide it to us now.

11 That information is necessary for our case and

12 for our experts to see.

13 MR. BYRNE: So I think in general, it

14 is good to share the data and information so that

15 people can talk about real things. So this is

16 not -- there's not a discovery process here in

17 the Mayor's Agent hearings. I understand that

18 you want to allege, Ms. Ferster, that there are

19 inadequate provisions for families as a way to

20 criticize the project and I think you can do

21 that.

22 But I don't see -- it doesn't strike

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1 me as that crucial to your case I must say. I

2 can see where it adds something to it, but I take

3 it you want to allege that there are inadequate

4 units for families, and you can do that. But it

5 would be better to know.

6 So I would ask that Ms. Brown, if you

7 can produce the information about the -- about

8 the size of the units, the bedrooms for the

9 units, that that would take away an issue that we

10 don't really need to argue about I think, and we

11 can proceed with the hearing.

12 MS. BROWN: I'll see if we can get it

13 printed out. It's in electronic form right.

14 MR. BYRNE: Okay.

15 MS. BROWN: But I'd note for the

16 record that it's not typical for an applicant to

17 produce evidence for the opponent.

18 MR. BYRNE: I understand. I

19 appreciate that.

20 MS. FERSTER: Except when they say

21 they will.

22 MR. BYRNE: Well, okay. I'd really

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1 like to turn down the snarkiness. Here, it's

2 going to be a long day in any event and Mr.

3 Otten, your motion is denied. The electronic

4 -- I don't have the electronic version. I think

5 what you have is adequate for what you need to

6 do.

7 MR. OTTEN: Mr. Byrne, I just want to

8 put on the record, there's nothing in the printed

9 version that's proprietary. This is a public

10 site about a public disposition of public land.

11 MR. BYRNE: I understand, but that's

12 not the basis for --

13 MR. OTTEN: That's what I just heard

14 she argued.

15 MR. BYRNE: That's what she argued,

16 but it's not the basis of my ruling. So let's

17 proceed.

18 MR. OTTEN: Okay.

19 MR. BYRNE: All right. So when we

20 have -- so Ms. Brown, you'll let us know when you

21 have the information. I appreciate your

22 cooperation.

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1 MS. BROWN: Yes.

2 MR. BYRNE: Okay. All right, Mr.

3 Otten. It's time for you to have -- to do some

4 cross-examination, and I hope you can remain the

5 terms of the remand.

6 (Pause.)

7 MS. BROWN: Mr. Byrne, would it be

8 appropriate for the record for the witnesses to

9 introduce themselves now for the record? Okay.

10 MR. THAKKAR: My name is Aakash

11 Thakkar. I'm with EYA, part of the development

12 team.

13 MS. EIG: Emily Hotaling Eig with the

14 EHT Traceries, Historic Preservation Consultant.

15 MR. DETTMAN: Shane Dettman with

16 Holland and Knight, Director of Planning

17 Services.

18 MR. WEERS: Adam Weers with Trammell

19 Crow Company.

20 MR. BELL: Matthew Bell with Perkins

21 Eastman D.C.

22 MR. BOGORAD: Leonard Bogorad, Real

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1 Estate Research Corporation.

2 MR. RUIZ: Chris Ruiz with DMPED.

3 MR. OTTEN: Mr. Byrne, I didn't hear

4 anybody from DMPED, the co-applicant.

5 MS. BROWN: Mr. Byrne, they have --

6 they testified last time. Mr. Kenner testified,

7 and he was cross-examined. He has not returned

8 for any cross-examination.

9 MR. OTTEN: Wait. Mr. Kenner said he

10 would be sending somebody to this hearing for

11 cross-examination, for the details that he

12 couldn't answer because he was the director.

13 MS. BROWN: Actually, if you go to the

14 transcript, it does not say that he would be

15 sending anyone. It said if there was a question

16 that was appropriate for the deputy mayor, that

17 we would figure out a way to get it answered.

18 But reminding everyone that cross-

19 examination can only go to the four corners of

20 what he testified to, and Mr. Otten and Ms.

21 Ferster both had an opportunity to cross-examine

22 him on that. I don't believe that there is going

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1 to be any information that will be required from

2 him. But again if there is, we'll figure it out.

3 MR. BYRNE: Thank you. What is it

4 that you want to ask about that's within the

5 scope of Mr. Kenner's testimony that these

6 witnesses can't answer?

7 MR. OTTEN: Well DMPED is the co-

8 applicant. DMPED is representing the public side

9 of this project, and I asked several questions to

10 Mr. Kenner that he couldn't answer, and that my

11 understanding was as DMPED is the co-applicant,

12 they would be here for cross-examination, for

13 further detail of the public aspects of the

14 southern part of the project, which is the public

15 side, which has the park and it's part of the

16 special benefits that they're claiming.

17 So I wanted to inquire about that and

18 the public D.C. WASA tunnel and parts of that is

19 part of the park, and you know, I thought I would

20 be granted due process for that.

21 MR. BYRNE: So I think probably there

22 are people here who can respond about the nature

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1 of the park, and so let's see. So I think that

2 is right, that what -- what was said was that we

3 would -- that the questions you had, we would

4 find people who had the expertise to provide an

5 answer, and you know, it may be unfortunate that

6 there's not somebody here from DMPED because of

7 -- But I don't think -- I think let's see what

8 the questions are and whether we can answer them

9 adequately.

10 MS. BROWN: If I may interrupt just

11 for one moment, we do have a printout of the

12 number of family units that was requested.

13 MR. BYRNE: Oh, thank you.

14 MS. BROWN: It's not identified as the

15 applicant's exhibit, but I think we can recognize

16 it for the record. It says "Summary of McMillan

17 Redevelopment Residential Program," and it is

18 submitted by the applicant, and I will hand them

19 out to the parties.

20 MR. BYRNE: Okay. So should we begin

21 again with -- and number the exhibits starting

22 with one for today. I think we should. So we'll

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1 -- that will be Exhibit 1 for today. Thank you.

2 Okay Mr. Otten, go ahead.

3 (Whereupon, the above-referred to

4 document was marked as Exhibit No. 1 for

5 identification.)

6 MR. OTTEN: Okay. Good morning

7 everybody. My name is Chris Otten, for the

8 record, D.C. for Reasonable Development. Glad

9 everybody could be here except for DMPED.

10 Looking through the July 14th book that was

11 presented by the applicant, I noticed -- I just

12 want to make sure if we look at page 140, I just

13 want to make sure that -- yeah, I just want to

14 make sure the multi-disciplinary team, basically

15 everybody up on the dais is represented here on

16 this page.

17 MS. BROWN: I have an objection to the

18 question. I think that we just introduced all

19 the witnesses, so he knows who's at the table.

20 MR. BYRNE: Yeah. I don't -- I mean

21 that's not questions being directed to any of the

22 witnesses, and I don't -- you're here to cross-

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1 examine the witnesses.

2 MR. OTTEN: Right.

3 MR. BYRNE: About their testimony. So

4 why don't you do that?

5 MR. OTTEN: Okay. I guess what I'm

6 going to do, since there's such a large group of

7 folks here, I'd like to ask kind of reflexive

8 questions, where if anybody disagrees, please

9 speak up, because anybody can disagree with what

10 I'm asking.

11 MR. BYRNE: I don't understand.

12 Explain what you're going to do?

13 MR. OTTEN: Since there's a large

14 panel here --

15 MR. BYRNE: Right.

16 MR. OTTEN: I would like to start off

17 with more general questions. I don't know who

18 exactly could answer it, and if there's a

19 disagreement with the posit, then I would like

20 for them to speak up.

21 MR. BYRNE: So you're going to make a

22 statement and then if they object, you're going

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1 to ask them to explain why? Is that what it is?

2 MR. OTTEN: Correct.

3 MR. BYRNE: No, no, no. That's not

4 appropriate. You have to ask them questions

5 about their testimony.

6 MR. OTTEN: Right. Their testimony is

7 both from July 14th. So that's what I wanted to

8 ask about. No, I know, I know. Okay. Well,

9 like I said, anybody can pipe up if they disagree

10 or have any comments on these questions. It

11 looks like on page 82 of the testimony, it looks

12 like this project is going to include a

13 restoration of the classic Olmstead Walk and

14 retain some of the open green space of the

15 existing site; correct?

16 MR. BYRNE: Mr. Bell, would you answer

17 that please?

18 MR. BELL: The Olmstead Walk is part

19 of the design to put it back, yes.

20 MR. OTTEN: And retain some of the

21 open green space of the existing site?

22 MR. BELL: The project will be

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1 creating usable park space, as we noted in our

2 presentation.

3 MR. OTTEN: And there seems to be

4 extensive adaptive reuse of the historic assets

5 at the site, right here on pages 39, 91 and 93?

6 MR. BELL: As we have testified, we

7 are proposing extensive adaptive reuse of certain

8 parts of the landmark.

9 MR. OTTEN: So like on page 91, I see

10 reuse of the sand bins it looks like, and on 93

11 it looks like the regulator houses are going to

12 become a coffee shop or a taco shop?

13 MR. BELL: These are drawings to show

14 the feasibility of such program elements.

15 MR. OTTEN: And so it's fair to say

16 for everybody here that what is underway right

17 now is planning for an important rehabilitation

18 project at this historic site?

19 MR. BELL: Every project I do is

20 important, Mr. Otten. This is perhaps one of the

21 most important.

22 MR. OTTEN: Right on, and it looks

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1 like on page 142 we're at a stage right now in

2 the work on this rehabilitation project, that is

3 figuring out the final plans and getting

4 administrative approvals.

5 MR. BELL: I didn't hear a question.

6 MR. OTTEN: I said it's fair to say

7 we're at a stage right now in this rehabilitation

8 project that the team's getting -- figuring out

9 final plans and getting administrative approvals

10 before moving forward.

11 MR. BELL: That's sort of obvious,

12 beyond response, right? I mean that's why we're

13 here.

14 MR. OTTEN: Well I'm just verifying

15 what's in this book that we didn't receive

16 electronically. I just want to make sure. It

17 looks like that's what they're doing right now.

18 MR. BELL: It's plain what they're

19 doing right now. They're here to try to get a

20 permit to build the project.

21 MR. OTTEN: Like the subdivision,

22 parceling it up and seeking approval for new

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1 uses?

2 MS. BROWN: Mr. Byrne, we're happy to

3 answer questions that relate directly to the

4 testimony. But for us to repeat everything that

5 we said on July 14th probably is not a wise use

6 of time. So I'm hoping that the --

7 MR. BYRNE: I appreciate that. I

8 appreciate that, and I'm hoping that we can get

9 to something that's a little bit more

10 substantive.

11 MR. OTTEN: So if I had an electronic

12 copy and I could share it with people, to help me

13 to get to these questions, it would have been

14 better. So let me go down identifying parts of

15 the project. It seems like there's going to be a

16 grocery store. So who on here -- who on the

17 panel will be handling that?

18 MR. BELL: You want to ask questions

19 about the grocery store?

20 MR. OTTEN: Yeah. That's one of the

21 special benefits I think of the project being

22 claimed.

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1 MR. BYRNE: So who would be a good

2 person to respond to that?

3 (Off-microphone comments.)

4 MR. BYRNE: Okay. Go ahead, Mr.

5 Otten.

6 MR. OTTEN: Okay, and I guess since

7 everybody -- the rec center is DMPED, I guess,

8 the multi-family housing. Who's handling that?

9 (No audible response.)

10 MR. OTTEN: Okay. So that's Mr.

11 Takash for the record?

12 MR. THAKKAR: My name is Aakash

13 Thakkar, which I said at the beginning of the

14 hearing.

15 MR. OTTEN: And you're with EYA?

16 MR. THAKKAR: I am.

17 MR. OTTEN: Okay, and so are you also

18 doing the senior housing?

19 MR. THAKKAR: I'm speaking on a number

20 of components on behalf of the team. Jerry Lynch

21 Real Estate is actually developing the grocery

22 store and the multi-family housing.

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1 MR. OTTEN: Okay, and that includes

2 the senior housing?

3 MR. THAKKAR: It does.

4 MR. OTTEN: Okay, and Mr. Weers,

5 you're working on the hospital complex?

6 MR. WEERS: I am working on the health

7 care component, yes sir.

8 MR. OTTEN: Okay, and I guess I wanted

9 to figure out who's handling the -- on page 101

10 and 102, who's handling the invisible building?

11 What is that?

12 MR. BELL: You may be referring to

13 Phase 3 of the health care component. It is in

14 the renderings represented as a future phase. So

15 it doesn't have architecture. Of course, it

16 would have to come to the Historic Preservation

17 Review Board for approval, but it was not part of

18 the consolidated PUD application at this time.

19 That's why we drew it in the way we did, because

20 we didn't have a design for it as yet.

21 MR. OTTEN: So that will have to go

22 back to HPRB?

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1 MR. BELL: Yes sir.

2 MR. OTTEN: And that's a medical,

3 another addition?

4 MR. BELL: That will be a building

5 with retail on the ground floor and health care

6 uses above.

7 MR. OTTEN: And that's planned at a

8 future date, I guess. Is there any sense of when

9 that might proceed?

10 MR. RUIZ: No sir.

11 MR. OTTEN: Okay. In the applicant's

12 June 23rd testimony, the prehearing brief on page

13 30, it says that "The Council disposed of

14 McMillan in conformance with the current

15 development plan"; correct? Does that say that

16 on page 30?

17 MR. BELL: I don't think -- so we

18 would prefer you to ask the question.

19 MR. OTTEN: I guess the question is --

20 okay. Presuming that's correct --

21 MS. BROWN: Well, if I could just

22 interject, that no one testified to this. It is

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1 part of the record, but we don't have any direct

2 testimony on it.

3 MR. OTTEN: Ms. Brown, you know as

4 well as I do that anything submitted to the

5 record is part of your testimony that I can cross

6 examine on.

7 MR. BYRNE: That's not true actually.

8 It's legal argument. It's not -- legal argument.

9 I mean it's not evidence. It's not necessarily

10 evidence, but I don't -- tell me again what it is

11 you want to ask about?

12 MR. OTTEN: I guess I wanted to

13 clarify if the Council disposed -- if the

14 applicant is claiming the Council disposed of the

15 McMillan site according to the current

16 development plan, are they saying that the

17 Council is okay with this invisible building when

18 disposing of the land?

19 MR. THAKKAR: To be clear, there was

20 a unit count included in the Council package for

21 the building that Mr. Otten's referring to. So

22 the Council was fully aware of the general nature

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1 of the size of the project, the number of units,

2 the number of affordable housing units, the park

3 space, etcetera, and that is what the Council

4 approved.

5 MR. OTTEN: So the unit size of the

6 invisible building, the medical building for the

7 future has already been determined? Is that what

8 you're saying?

9 MR. BELL: That's not a residential

10 building.

11 MR. OTTEN: Okay, okay. This same

12 submitted evidence dated June 23rd, on page 24 it

13 says "The site will be a transit hub via all

14 modes of transit." Did the Council adopt

15 legislation that says -- didn't the Council adopt

16 legislation that says in disposing of public land

17 along major transit routes, at least 30 percent

18 of the project shall be considered affordable

19 housing, shall require affordable housing?

20 MS. BROWN: Objection. No one

21 testified to that on direct. So it's beyond the

22 scope of the witnesses' testimony.

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1 MR. BYRNE: It's a question. It's a

2 legal question that you could ascertain. It's

3 not a question of evidence.

4 MR. OTTEN: So okay. Going back to

5 the July 14th evidence submitted and testified

6 to, we're just getting the bedroom sizes now.

7 How many -- I don't see any four bedrooms or five

8 bedrooms, is that right, in this matrix?

9 MR. WEERS: I'll answer that, since I

10 prepared the spreadsheet. No, the spreadsheet

11 doesn't show any four and five bedroom units.

12 MR. OTTEN: Okay, and the family units

13 that are three bedrooms, it lists Parcel 5 at

14 124, right? Am I reading that right?

15 MR. WEERS: They're 124 market rate

16 townhomes on Parcel 5. There are 22 affordable

17 townhomes on Parcel 5, of which 9 are devoted to

18 households earning no more than 50 percent AMI,

19 and the remaining 13 of the 22 will be devoted to

20 households earning no more than 80 percent AMI.

21 MR. OTTEN: So if I'm doing the math

22 right, out of 655 total units, 35 of them will be

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1 -- I'm sorry, 22 of them will be three bedrooms

2 for affordable families, for families that -- are

3 considered affordable for families?

4 MR. WEERS: Of the 655 units yes, 22

5 of them. Twenty-two of them will be devoted as

6 affordable units consisting of three bedrooms.

7 MR. OTTEN: And are any of these

8 bedrooms committed to 30 percent AMI levels?

9 MR. WEERS: I'm sorry. Repeat your

10 question.

11 MR. OTTEN: Are any of the 22

12 affordable family units dedicated or committed to

13 families making 30 percent or less?

14 MR. WEERS: No. Per the spreadsheet,

15 you can see that there are 22 three bedroom units

16 that will be affordable on Parcel 5, split

17 between 80 percent and 50 percent AMI.

18 MR. OTTEN: Okay, and how many -- how

19 many of the overall units will be condos versus

20 rentals. Do you have that ratio?

21 MS. BROWN: Relevance.

22 MR. BYRNE: Yeah. Why is it relevant?

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1 MR. OTTEN: It has to do with

2 affordability, whether or not families will be

3 able to purchase a condo is a much different bar

4 than whether they can rent affordably.

5 MR. BYRNE: Sustained.

6 MR. OTTEN: Isn't it the case that the

7 affordability covenants on some or all of the

8 affordable units, including the senior units,

9 expire in 30 to 40 years?

10 MS. BROWN: Objection. There's no

11 testimony as to the term of the affordability.

12 MR. OTTEN: That's why I'm asking.

13 MR. BYRNE: But you have to do that on

14 your own case. This is not just grilling them

15 about the project. This is cross-examination

16 based upon the testimony that they gave on July

17 14th.

18 MR. OTTEN: Right, and the testimony

19 is that they have affordable units. I'm asking

20 if those affordable units expire. That speaks to

21 this area for the life of the project.

22 MR. BYRNE: Well, I understand that.

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1 Isn't that in the record somewhere already. I

2 mean --

3 MS. BROWN: I believe it is.

4 MR. BYRNE: I believe it's in the

5 record. I think the termination is in the

6 record. Ma'am, be quiet please.

7 MS. BROWN: I'm happy to answer.

8 MR. BYRNE: Why don't you just answer

9 the question?

10 MR. THAKKAR: So Mr. Otten was

11 incorrect, I just want to state for the record.

12 The Zoning Commission, per the Zoning Commission

13 order it is the life of the project. The

14 affordability runs the life of the project, which

15 will likely be longer than three or four years.

16 MR. OTTEN: Thank you, and that's for

17 all the units?

18 MR. THAKKAR: All of the affordable

19 units.

20 MR. OTTEN: Okay, and that includes

21 the senior housing as well? Is that -- I just

22 want to be clear for the record.

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1 MR. THAKKAR: I said all of the

2 affordable units, which does include the senior

3 housing.

4 MR. OTTEN: Okay. So for a typical

5 senior, what would they be -- what is the

6 affordable rent for a typical senior unit?

7 MR. BYRNE: Sustained. This is not a

8 political meeting, Mr. Otten.

9 MR. OTTEN: This has nothing to do

10 with politics. It has to do with whether or not

11 this project is special or not.

12 MR. BYRNE: Well, they've testified

13 about the affordability units. There's evidence

14 in the record, and if you want to argue it's not

15 affordable you can do that in your case-in-chief.

16 But I really would like to focus on your

17 opportunity to cross-examine them about their

18 testimony.

19 MR. OTTEN: I thought that's what I'm

20 doing.

21 MR. BYRNE: Well okay.

22 MR. OTTEN: I'll try better. So Mr.

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1 Thakkar, on page 141 of the testimony submitted

2 on July 14th, it discusses community support or

3 community involvement; correct, in this project?

4 MS. BROWN: I'm not sure that Mr.

5 Thakkar is the correct person to answer that

6 question. I'm not sure if you have -- did you

7 testify? Yes.

8 MR. OTTEN: Isn't it the case that

9 throughout your submissions you claim to have a

10 lot of community support for this project?

11 MS. EIG: I believe that was my

12 testimony and yes, we had many community meetings

13 over the course of many years.

14 MR. OTTEN: Okay, and I see the -- one

15 of the photos you included includes a tabling by

16 the Creed-McMillan Park are part of the

17 community?

18 MS. EIG: Yes. I attempted to show

19 not just there was support, but there was

20 opposition, as I stated in my testimony.

21 MR. OTTEN: And that group, isn't that

22 the group that was funded by Fontaine and

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1 Company?

2 MS. EIG: I didn't testify to that,

3 and I do not know the answer to that.

4 MR. OTTEN: Okay. Mr. Bell, did you

5 render the image on pages 48 and 70? I'll start

6 with 48. I guess it's -- I think it's the same.

7 48 and 70 are the same image of the site, from

8 basically viewing it from North Cap, looking from

9 --

10 MR. BELL: Yes, that's our drawing.

11 MR. OTTEN: Looking from the south,

12 okay. How about on page 145, 144?

13 MR. BELL: Is this the drawing you're

14 referring to?

15 MR. OTTEN: Yes.

16 MR. BELL: That's our drawing.

17 MR. OTTEN: Okay. So on this drawing,

18 it says "D.C. Water Access" with an arrow

19 pointing to this gray walkway kind of coming into

20 the park, does it not?

21 MR. BELL: Yep.

22 MR. OTTEN: What does that mean? What

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1 is that access point into the park?

2 MR. BELL: It's part of the D.C. WASA

3 project for 1st Street. They need an access to

4 get equipment. There's just a little left of

5 that ramp is the lightly shaded area, a green

6 box. That's an access into their tunnel, which

7 they required in order to do the flood mitigation

8 project down 1st Street, and that ramp is there

9 so that they can get equipment in and out of the

10 site.

11 MR. OTTEN: Okay, and so this is the

12 tunnel, the 1st Street tunnel project. Are you

13 familiar with that project, or is it just --

14 MR. BELL: I know of it, sure.

15 MR. OTTEN: Okay, and so that's the

16 same tunnel that's depicted on page 73?

17 (Pause.)

18 MR. BELL: Could you clarify? I don't

19 --

20 MR. OTTEN: So it looks like there's

21 a large hole in --

22 MR. BELL: Yeah. That aerial photo

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 45

1 shows the D.C. Water project construction staging

2 area.

3 MR. OTTEN: And that round hole there,

4 that's the start of the tunnel?

5 MR. BELL: As far as I know.

6 MR. OTTEN: Okay, and have you been in

7 touch with D.C. Water to understand the -- what

8 are not -- there will be large venting grates

9 around that tunnel entrance?

10 MR. BELL: I didn't testify to that

11 sir.

12 MR. OTTEN: You just said you

13 mentioned something about an access point? What

14 is it? Is it the access to that tunnel?

15 MS. BROWN: Objection. I think that

16 he's testified to just about everything he knows

17 about the D.C. Water and it wasn't on his --

18 MR. BYRNE: So I heard him, Mr. Bell

19 say that it was an access point for them to

20 service the tunnel that was shown on the other --

21 MR. BELL: When we were designing the

22 plan, we were asked to provide for access for

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1 them. So in explaining the plan, that's what we

2 did, provide an access.

3 MR. BYRNE: Right.

4 MR. OTTEN: And how come the -- I

5 guess the cap on this tunnel isn't depicted in

6 the renderings that are on the prior pages, like

7 on page 145?

8 MR. BELL: At the time we made the

9 rendering, the tunnel project wasn't completed.

10 We showed a place where there would be the access

11 point.

12 MR. OTTEN: And won't D.C. Water want

13 to protect the area around the sewer cap from

14 public intrusion? Or will kids be running over

15 the sewer cap and grates?

16 MS. BROWN: Objection. He's not going

17 to be able to testify to what D.C. Water's

18 intention on that --

19 MR. BELL: So well I think, if I can

20 try. The question, as I understand it, was

21 whether the grassy area that's shown on I guess

22 page 144 is going to be a smooth and safe surface

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1 for children to play on. That was what we agreed

2 to with D.C. Water, that it would be continuous

3 as it was before they started construction,

4 usable by the public.

5 MR. OTTEN: Do you recall the 2015

6 hearings before Mr. Byrne, where Ms. Corbett

7 testified to grates around the access, the tunnel

8 access?

9 MS. BROWN: Objection.

10 MR. OTTEN: It's on the record.

11 MR. BYRNE: Yeah, but he doesn't -- he

12 doesn't --

13 MR. OTTEN: I'm asking if he recalls

14 that.

15 MR. BYRNE: But he doesn't need to.

16 I mean that's not part -- he has not testified on

17 that question, and if you want to say that

18 there's a conflict in the record, you can make

19 that part of your case.

20 MR. OTTEN: Okay. Let's look at the

21 alternatives that were presented. It looks like

22 on pages 57 and 64, page 64 is showing all the

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1 alternatives it looks like, or its claim to be

2 alternatives, is that right?

3 (Pause.)

4 MR. BELL: What's the question?

5 MR. OTTEN: Do you know when and where

6 these alternatives were shown to the public?

7 MR. BELL: These are the ones that

8 were -- I didn't testify as to exactly when I

9 gave the general date of what the dates were when

10 those plans were presented. So for example 2009

11 there was plan; 2006 there was a plan; 2008. So

12 we did show in general the approximate times the

13 plans were shown to the public.

14 MR. OTTEN: And so these were all --

15 you're saying though that these were all shown to

16 the public at some point?

17 MR. BELL: Yes sir.

18 MR. OTTEN: None of them were internal

19 documents?

20 MR. BELL: No.

21 MR. OTTEN: And looking at them, there

22 doesn't seem to be much change in the density of

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1 the project, is that right?

2 MS. BROWN: I think he testified

3 already what the change in the density was for

4 the project.

5 MR. BYRNE: Yes. I don't recall that.

6 If you recall Mr. Bell, what you had to say about

7 the density, how the density changed.

8 MR. BELL: I talked about how the

9 program changed.

10 MR. BYRNE: Yes. That I recall.

11 MR. OTTEN: Okay. Are you at all

12 aware of how the 2006 plan, the initial plan in

13 this list came from the 2002 planning process?

14 MS. BROWN: Relevance.

15 MR. BYRNE: Relevance.

16 MR. OTTEN: Well the 2002 planning

17 process shows a much lower dense project that was

18 accepted by the community at that time. I just

19 don't -- I'm trying to figure out how it jumped

20 to 2006.

21 MR. BYRNE: I don't believe he

22 testified about 2002 at all. So you can make a

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1 case that there was a plan in 2002 that had less

2 density. That would be up to you.

3 MR. OTTEN: Okay. Looking at the

4 exemplary architecture as claimed. On pages 102

5 to 105, I guess these are some renditions of the

6 exemplary architecture; correct?

7 MR. BELL: They're renderings of the

8 project as proposed.

9 MR. OTTEN: Okay, and what are these

10 buildings made out of? What materials?

11 MR. BELL: These buildings will be

12 made out of brick, they'll be made out of pre-

13 cast concrete, they'll be made out of stone.

14 There will be metal, there will be wood. I think

15 we've shown the pallet of these buildings. The

16 material's designed to last a long time.

17 MR. OTTEN: That's what I wanted to

18 ask. What's the projected life of let's say the

19 townhouses on 105?

20 MR. BELL: Yeah. I don't think I

21 testified to what the projected life is.

22 MR. OTTEN: Right. But you just said

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1 that -- you just testified that they're for a

2 long time. Is there --

3 MR. BELL: For a long time, that's

4 projected life.

5 MR. OTTEN: I'm not an expert in

6 architecture. What is a long time in the expert

7 --

8 MR. BELL: Past our lifetimes, well

9 past it.

10 MR. OTTEN: So 80 years? 50 years?

11 MR. BYRNE: You made your point.

12 MR. OTTEN: Has the building types and

13 materials been measured against climate change

14 modeling, for example, to withstand increasing

15 hurricane gusts?

16 MR. BELL: I don't believe I testified

17 to that.

18 MR. OTTEN: How about for flooding?

19 MR. BELL: I don't believe I testified

20 to that.

21 MR. OTTEN: Are you aware that the

22 site is smack dab in the center of an internal

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1 D.C. flood plain?

2 MR. BELL: I don't think I testified

3 to that.

4 MR. OTTEN: Do you know how many

5 vehicle trips your project will generate on a

6 daily basis to and from the site?

7 MR. BELL: That was not in my

8 testimony.

9 MR. OTTEN: Okay. Let me ask, can

10 anybody on the panel tell me what this proposed

11 project will generate in terms of daily vehicular

12 trips and from the rehabilitated McMillan Park

13 site project?

14 MS. BROWN: Objection. There was no

15 direct testimony on the number of trips that

16 would be generated.

17 MR. BYRNE: Right. There was

18 testimony about the transportation part of the

19 package.

20 MS. BROWN: Correct.

21 MR. BYRNE: And what was included,

22 what was included in that, and was that you sir?

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1 Yeah. So if you know the answer to that, I'm

2 going to let him ask that question. Do you know

3 about the number of trips?

4 MR. WEERS: I don't know the number of

5 trips that are going to be generated.

6 MR. BYRNE: Okay.

7 MR. OTTEN: But you believe it's on

8 the record?

9 MR. WEERS: I believe at the last

10 hearing, Ms. Ferster asked me if I would agree or

11 could I confirm that the project was going to

12 generate additional trips, and I confirmed that.

13 But as to the exact number of trips in and out

14 AM/PM, I don't know those exact numbers.

15 MS. BROWN: And if I may, I believe it

16 might be in the 2014-2013 Mayor's Agent record,

17 but it's not in the -- what we testified to

18 today.

19 MR. BYRNE: It's probably in the

20 Zoning Commission record. The Zoning Commission

21 should actually have it.

22 MR. OTTEN: Okay. EHT Traceries,

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1 that's Ms. Eig? You've written several reports

2 now for the record, right?

3 MS. EIG: Yes, two.

4 MR. OTTEN: And the latest being the

5 EHT Traceries report dated May 2016?

6 MS. EIG: The Historic Preservation

7 Plan? Yes.

8 MR. OTTEN: And that's -- that was

9 submitted as part of the applicant's testimony

10 dated June 23rd, 2017?

11 MS. EIG: Yes.

12 MR. OTTEN: And so per your testimony,

13 your report talks about the McMillan

14 Rehabilitation Project, for example, of the

15 regulated houses, right?

16 MS. EIG: Yes.

17 MR. OTTEN: And on page 66, you state

18 "Further assessment should be conducted to select

19 which regulator houses would be most appropriate

20 for adaptive reuse," right?

21 (Pause.)

22 MS. EIG: I'm sorry, I don't know

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1 where -- oh here. Further assessment to select

2 which would be most appropriate for type of

3 adaptive reuse. Yes, it is here.

4 MR. OTTEN: Thank you. Do you -- has

5 that assessment been made? Are you aware of that

6 assessment being made, and for which regulator

7 houses maybe were chosen for adaptive reuse?

8 MS. EIG: It is my understanding that

9 it has been selected, and it was assessment of

10 condition as well as location to ensure that the

11 regulator house would have the most accessibility

12 to the public.

13 MR. OTTEN: Could you -- do you know

14 which ones those are?

15 MS. EIG: Yes. It's on those -- well,

16 I should say the restoration of one house is

17 being proposed, and that is on the south court on

18 the west side, so it is closest to the park. The

19 others would be used as adaptive reuse. Their

20 actual uses have not been determined yet.

21 MR. OTTEN: And that assessment was

22 made. Is that anywhere on the record, or is that

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1 something -- you're just reporting it. But you

2 said assessment, an assessment should be made to

3 that decision. Is that on the record? Who did

4 that assessment?

5 MS. EIG: I believe that it was

6 completed Perkins Eastman as part of the drawings

7 set that went from the project to the next stage

8 of development.

9 MR. OTTEN: Okay, and for the

10 building, for the regulator houses that are being

11 rehabilitated to accommodate new uses, are you

12 aware of the uses that have been determined? Do

13 you know --

14 MS. EIG: No uses have been determined

15 to my understanding.

16 MR. OTTEN: Okay. In your report on

17 page six, you stated that -- you acknowledge that

18 the McMillan site is listed in the D.C. Inventory

19 of Historic Sites and listed in the National

20 Register of Historic Places, right?

21 MS. EIG: Correct.

22 MR. OTTEN: And in referencing this,

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1 you call upon David Maloney's, who's the State

2 Historic Preservation Officer, you call upon his

3 application for the National Register of Historic

4 Places dated January 4, 2013, right?

5 MS. BROWN: Could you clarify the

6 question? I'm not sure it's clear what is being

7 asked.

8 MR. OTTEN: I'm asking, do you

9 reference David Maloney's application for this

10 site to be put on the National Register of

11 Historic Places?

12 MS. EIG: I stated that it was listed

13 in the National Register of Historic Places a

14 historic district in 2013.

15 MR. OTTEN: Okay, and but you are

16 aware that Mr. Maloney submitted the application

17 for that registration?

18 MS. BROWN: She's testified to that.

19 If we could move on to the next question.

20 MR. BYRNE: She said -- yeah. I think

21 she said yes.

22 MS. EIG: Mr. Maloney is the State

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1 Historic Preservation Officer and he must --

2 MR. BYRNE: He submits these.

3 MS. EIG: --sign and submit the

4 documents to the National Register, yes.

5 MR. OTTEN: Okay, and his application

6 highlights some of the key defining

7 characteristics of the site, right, that you're

8 aware of?

9 MS. EIG: Yes.

10 MR. OTTEN: And some, two of those are

11 the open space and the vistas, right? He

12 mentions how a defining characteristic is the

13 open space and the vistas?

14 MS. EIG: I don't think I testified to

15 the National Register nominations content.

16 MR. BYRNE: I don't think she did.

17 MR. OTTEN: You were here during the

18 2015 Mayor Agent hearings; correct?

19 MS. EIG: Yes.

20 MR. OTTEN: And do you recall at that

21 time --

22 MS. EIG: Was that 2015 Mayor's Agent

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1 or was it --

2 MR. BYRNE: I'm afraid so, yeah.

3 MS. EIG: Was that 2015?

4 MR. OTTEN: And at that time, the open

5 space and the contiguous nature of this --

6 MS. EIG: I was here for the 2014

7 hearing, not the 2015, which was the -- I did not

8 attend that hearing.

9 MR. OTTEN: Ah, okay, thank you.

10 Okay. But at both of the hearings, there was the

11 discussion around the open space and contiguous

12 nature of the site as defining characteristics of

13 the site?

14 MS. BROWN: Objection. I think there

15 were --

16 MR. BYRNE: That's a statement.

17 That's a statement, so why don't you ask the

18 question?

19 MR. OTTEN: Okay. Isn't it true that

20 during these hearings, whether 2014 or 2015 --

21 I'll just right to the question. Isn't it true

22 to that open space and contiguous nature of the

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1 site has been determined to be a defining

2 characteristic of the site?

3 MS. EIG: Yes.

4 MR. OTTEN: And your prior reports

5 highlight this as well. But I noticed that the

6 May 2016 report in this hearing doesn't really

7 evaluate or acknowledge those key defining

8 aspects, the open and contiguous nature. Why is

9 that?

10 MS. EIG: The 2016 report is the

11 historic preservation plan that is directed to

12 the actual physical objects or structures that

13 are on the site, and how they will be approached

14 in terms of treatment, and it is based on the

15 drawings that were submitted to the Historic

16 Preservation Review Board.

17 So the locations of things are outside

18 of the jurisdiction or the parameters of this

19 report.

20 MR. OTTEN: So you evaluated the above

21 ground historic assets. You mentioned -- you

22 even mentioned things like the shrubbery, that

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1 original Olmstead shrubbery. But you don't

2 mention the other, the contiguous aspects of the

3 site?

4 MS. EIG: No, I don't think that's

5 correct. The historic preservation plan

6 addresses the physical treatment that will take

7 place of the resources that are above ground, and

8 some below ground. It's the built resources,

9 yes, not the site --.

10 MR. OTTEN: And the subdivision of the

11 site, if I'm not mistaken, is what's inducing or

12 allowing the project to move forward?

13 MR. BYRNE: That's a statement.

14 That's not a question.

15 MR. OTTEN: As you understand it, the

16 subdivision --

17 MS. BROWN: Objection. Calls for a

18 legal conclusion.

19 MR. BYRNE: Yeah, yeah. Agreed.

20 MR. OTTEN: Well, okay. So your fifth

21 recommendation in your May 2016 reports says that

22 "The redevelopment of the McMillan site should be

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1 based on planning and design principles that are

2 specific to this historic site, by reflecting the

3 landmark's unique aesthetic character." When you

4 say "aesthetic character," what are you

5 referencing there?

6 MS. EIG: The retention of sufficient

7 identity of the site.

8 MR. OTTEN: Do you consider the

9 placing of a 115-foot tall office complex on the

10 north end of the site as an exacerbation of the

11 intrusion of medical complexes on the McMillan

12 site?

13 MS. BROWN: Objection to

14 characterization of the question.

15 MR. BYRNE: I'll allow it.

16 MS. EIG: The location of that

17 building in that far corner to me is the exact

18 place where it's to be located because it is

19 removed from the residential. It is removed

20 from the park that surrounds -- the residential

21 that surrounds it, the park that's on the site,

22 the reservoir and is closer to the tall building

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1 where Children's Hospital and Washington Hospital

2 Center are located.

3 MR. OTTEN: Okay. Can we -- let's

4 look at that map, if we could. So on page 143 of

5 the July 14th testimony, that's the bird's eye

6 rendition of the placing of the new buildings on

7 this historic site, right?

8 MS. EIG: Yes.

9 MR. BYRNE: Is this right, 142? Is

10 that the rendition?

11 MR. OTTEN: 143.

12 MS. EIG: It's 142 on the slide show

13 actually.

14 MR. BYRNE: Okay.

15 MR. OTTEN: In my booklet, it's

16 numbered 142.

17 MS. EIG: Yeah. You're off by one

18 page because of the printing, I assume.

19 MR. OTTEN: Okay. So that I'm looking

20 at -- okay. So we're all looking at the same

21 thing on the screen, and the title of this page

22 is "Approach Creating a Cohesive Plan Celebrating

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1 the Landmark," right?

2 MS. EIG: Uh-huh.

3 MR. OTTEN: And so looking at the

4 location of the medical office complexes, you

5 said that it's the appropriate place to put it in

6 there because it's immediate to the medical

7 buildings to the north.

8 MS. EIG: And the northwest.

9 MR. OTTEN: And I'm sorry, the

10 northwest? Okay. Isn't there -- it looks like

11 there's Michigan Avenue that separates the

12 northern buildings from the other properties

13 across from Michigan Avenue?

14 MS. EIG: Yes.

15 MR. OTTEN: And then in the properties

16 across Michigan Avenue, the Veterans Hospital and

17 the Children's Hospital, there are large setbacks

18 there. Basically, it looks like the parking lots

19 between the building -- the Veterans Hospital

20 frontage and Michigan Avenue, is that right?

21 MS. EIG: Yes.

22 MR. OTTEN: And would you say -- would

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1 it be fair to say that the medical complex that's

2 being proposed on McMillan Park is actually

3 closer to the eastern rowhouses, the rowhouses to

4 the east across North Capitol and actually to the

5 frontage of any of the medical complexes to the

6 north or the northwest?

7 MS. EIG: I didn't testify to that.

8 I think the answer is looking at the image.

9 MR. BYRNE: Yes. It's quite apparent

10 that that's the case on the chart.

11 MR. OTTEN: Okay. Just to be clear

12 for the record, are you -- Ms. Eig, are you

13 claiming that the area you've called the McMillan

14 site in your report, which is above, you know,

15 the land above the waterworks, was never a park

16 accessible by the public?

17 MS. EIG: The area that is this site

18 had a perimeter path that was for pedestrians

19 that was accessible. The rest of the site, the

20 entire site was an industrial site and was in

21 continuous operation as an industrial site.

22 MR. OTTEN: So turning to page 71 in

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1 the printed version of the July 14th plan, the

2 page titled "McMillan Sand Filtration Site," the

3 rectangular property here before is -- that's

4 what you're identifying as the industrial site?

5 MS. EIG: The entire landmark was an

6 industrial site, with the exception of the public

7 park that was to the southwest and is no longer

8 occupied as such.

9 MR. OTTEN: And so this site on page

10 71, as bounded by the Olmstead Walk here, you're

11 claiming that was never accessible by the public,

12 was not used by the public?

13 MS. EIG: It was not to be used by the

14 public. It was an industrial site, yes.

15 MR. OTTEN: What are the -- do you

16 know what these little white paths are crisis-

17 crossing the so-called industrial site?

18 MS. EIG: I assumed that they may have

19 been paths of people walking on it, of the

20 employees and such.

21 MR. OTTEN: And significant enough to

22 leave a path, a trail?

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1 MS. EIG: It was -- it's a grassy

2 surface of very shallow proportions, so yes.

3 MR. OTTEN: And you claim that the

4 space on page 16 on your report, May 2016 report,

5 that the space was considered by Olmstead as too

6 dangerous because of hundreds of open manhole

7 covers, yes? That's why it was not a part.

8 You're saying that there was hundreds of open

9 manhole covers.

10 MS. EIG: According to our research,

11 the manhole covers, approximately one-third of

12 them were open at any time during operations.

13 MR. OTTEN: You reference records

14 indicating that. Are those records on the agency

15 record?

16 MS. EIG: I can't remember

17 specifically where that information is from, but

18 I think on page 16 it does discuss Olmstead's

19 desire to avoid using a fence around the site,

20 and chose instead to use the landscape to

21 discourage people from going on this industrial

22 site.

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1 MR. OTTEN: And you said they opened

2 the manhole covers to kind of air out the

3 underground waterworks, give it light? Isn't

4 that what you say on page six?

5 MS. EIG: I did not say why they

6 opened the manhole covers.

7 MR. OTTEN: Isn't it true, as was

8 determined at the last Mayor's Agent hearing,

9 that the McMillan site is publicly controlled

10 right now, and that it has been since its

11 origins?

12 MR. BYRNE: That's an obvious legal

13 point that is on the record. You don't have to

14 ask her a question about that.

15 MR. OTTEN: And well I guess I'm

16 asking, would you consider that as the historian

17 as -- would that be a key historic characteristic

18 of the site?

19 MS. EIG: The ownership? You're

20 asking if it's a key historic part of it?

21 MR. OTTEN: Yes.

22 MS. EIG: It's a fact of it.

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1 MR. OTTEN: And the vast majority of

2 the site would be privatized under the

3 rehabilitation plan, right?

4 MS. EIG: I didn't testify to the

5 significance of that.

6 MR. OTTEN: Okay. You do testify to

7 the fantastic vistas in all directions, did you

8 not?

9 MS. EIG: I did not testify to the

10 fantastic vistas in all directions, no.

11 MR. OTTEN: But isn't that part of the

12 -- what got the site onto the National Register

13 of Historic Sites, part of --

14 MS. EIG: I did not testify to the

15 National Register.

16 MR. OTTEN: Okay. Well, but you -- I

17 guess I'm confused. Your reports, your prior

18 report talks about vistas.

19 MS. EIG: My initial report does

20 identify vistas, both internal and external

21 vistas.

22 MR. OTTEN: Okay, and that's due to

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1 let's say looking at the July 14th testimony

2 again, looking at page 81 in the printed version,

3 Master Plan Berms.

4 MS. EIG: I have it.

5 MR. OTTEN: That shows the berms and

6 the plant; correct, page 81?

7 MS. EIG: Yes.

8 MR. OTTEN: And would it be fair to

9 say that if you have decent eyesight, you can

10 stand at any corner or any side of this park and

11 look through to the other side for the vistas?

12 MS. EIG: That you -- is it -- could

13 you repeat the question?

14 MR. OTTEN: That standing at --

15 standing pretty much at any corner of the site,

16 you can look through the site to the other side?

17 MR. BYRNE: You mean currently.

18 MR. OTTEN: Yes, currently.

19 MS. EIG: This is not --

20 MR. BYRNE: It has nothing to do with

21 her testimony.

22 MS. EIG: Right.

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1 MR. OTTEN: Well, she was talking

2 about the placing of the new structures.

3 MR. BYRNE: Yes.

4 MR. OTTEN: And so I'm just trying to

5 set a baseline here. Right now, we can see

6 through the site.

7 MR. BYRNE: Well, we know that.

8 MS. EIG: Yes, and if I might state,

9 my original report, as I said, was a

10 recommendation of findings. The Historic

11 Preservation Review Board's approval is what made

12 the determination of what and where things would

13 go on the site, while retaining its identity.

14 MR. OTTEN: And would you say that

15 their approval, by placing these structures on

16 the site the way they have, eliminates north-

17 south views on the site?

18 MS. EIG: No, it does not.

19 MR. OTTEN: Where would you have to

20 stand to be able to see north to south with the

21 proposed plan?

22 MS. EIG: The streets provide north to

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1 south visibility, and the pedestrian walk around

2 the entire site provides north to south

3 visibility.

4 MR. OTTEN: So it's fair to say that

5 the north-south view is significantly shrunk from

6 where it is now?

7 MS. EIG: They are reduced from what

8 it is now, yes.

9 MR. OTTEN: And right now you can see,

10 if you were standing on Michigan Ave, you could

11 see downtown to the downtown mall, the Washington

12 Monument and the Capitol?

13 MR. BYRNE: I don't think she

14 testified to that.

15 MS. EIG: I did not testify to that.

16 MR. OTTEN: You just testified to the

17 vistas.

18 MS. EIG: I testified the internal

19 vistas.

20 MR. OTTEN: Isn't it true though that

21 you can see the downtown monuments from McMillan

22 Park now?

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1 MR. BYRNE: So I think you put on a

2 witness to say that if you want to have that. I

3 mean you don't have badger her.

4 MR. OTTEN: I didn't realize I was

5 badgering her. I'm just asking questions. And

6 McMillan Park is part of what is called Emerald

7 Necklace of the City Beautiful Movement that

8 you're aware of?

9 MS. BROWN: She didn't testify to

10 that.

11 MR. OTTEN: I believe it's in your --

12 I believe it's in your May 26th testimony, page

13 -- oh, I apologize. On page 16, your report

14 highlights how Olmstead purposely designed the

15 site using smaller plantings to avoid blocking

16 views into the site, right?

17 MS. EIG: Yes.

18 MR. OTTEN: And can you help me find

19 anywhere on the record how the views into

20 McMillan Park will be affected by the proposed

21 rehabilitation project, like how the new

22 buildings may block the viewsheds?

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1 MR. BYRNE: You know, that's just not

2 -- I mean it's in the record. She doesn't need

3 to help you find stuff in the record. You can --

4 MR. OTTEN: I can't find it. That's

5 why I'm asking her.

6 MR. BYRNE: Well, okay. Then you can

7 argue that it's not in the record.

8 MR. OTTEN: So on page six your report

9 demonstrates that the 1987 quit claim deed

10 between the U.S. federal government and D.C.

11 "requires" any work on the site be completed in

12 accordance with the Secretary of Interior's

13 standards, right?

14 MS. EIG: Yes.

15 MR. OTTEN: And you go on to explain

16 that plans were made to quote-unquote "ensure

17 compliance with these standards" on page 13?

18 MS. EIG: Yes.

19 MR. OTTEN: And you are familiar with

20 Steve -- who Steve Callcott is, right?

21 MS. EIG: Yes.

22 MR. OTTEN: Okay. So he's the Office

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1 of Planning staff for this. Have you read his

2 2013 report on the record that notes that the

3 rehabilitation project will compromise the open

4 quality of the site and does not meet these

5 standards?

6 MS. BROWN: Objection. She didn't

7 testify to that.

8 MR. OTTEN: Okay. So then why do you

9 disagree with this report?

10 MS. EIG: Subsequent to his report,

11 Mr. Maloney provided a document that he found

12 that the proposed project did meet the Secretary

13 of Interior's standards.

14 MR. OTTEN: Did he -- in that

15 explanation, did he explain -- did he tell how it

16 met that standard suddenly?

17 MS. EIG: No.

18 MR. OTTEN: The testimony submitted to

19 the record, including the day of July 14th under

20 exemplary architecture, references the Tregaron

21 Estate case, which I believe Ms. Eig you're

22 familiar with?

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1 MS. EIG: I'm sorry. I couldn't

2 understand what you said.

3 MR. OTTEN: On July 14th, the

4 applicant submitted information regarding the

5 Tregaron Estate?

6 MS. EIG: Oh, I'm sorry.

7 MR. OTTEN: I think you're familiar

8 with that case.

9 MR. BYRNE: So I don't -- did you

10 testify about the Tregaron case in this

11 proceeding?

12 MS. BROWN: I actually don't believe

13 she did.

14 MR. BYRNE: I don't think so.

15 MR. OTTEN: But somebody did, because

16 it's in writing and it was handed to me the day

17 of the hearing.

18 MR. BYRNE: Well that's just -- that's

19 just the summary sheet organizing what they have

20 to say. So what does it say about the Tregaron

21 Estate?

22 MR. OTTEN: I guess what I'm

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1 wondering, being the historian on this, the

2 Tregaron Estate seems to be referenced here as a

3 comparable project with McMillan Park. Is that

4 fair to say?

5 MS. EIG: No, that's not what that

6 statement says. It just quotes from a Mayor's

7 Agent decision as to what could be defined as

8 special.

9 MR. BYRNE: Oh yes, I remember that

10 quote.

11 MS. EIG: Especially the architecture,

12 sorry.

13 MR. OTTEN: And it talks about placing

14 housing on the Tregaron Estate, that case, does

15 it not?

16 MS. EIG: That statement reference,

17 yes.

18 MR. OTTEN: And it says that part of

19 the benefit here is ensuring that the houses or

20 the structures being placed on the site will be

21 invisible from the vistas and vantage points

22 within the Estate, right?

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1 MR. BYRNE: So it's a different case.

2 I recognize that. I think I discussed Tregaron

3 in my first decision here. You know, if you want

4 to argue that Tregaron doesn't -- is not a good

5 precedent for this, that's open to you.

6 MR. OTTEN: I was just asking the

7 expert historian.

8 MS. EIG: It's a different case and

9 it's based on different findings, different

10 facts.

11 MR. OTTEN: Would you say the McMillan

12 Park buildings and structures being placed on the

13 site are invisible from the most important vistas

14 and vantage points?

15 MS. EIG: There are no invisible

16 buildings on this site. The placement calls for

17 real buildings to be built on the site. Vistas

18 are not protected under the law, and in fact

19 there's been consideration of them far beyond

20 what the documentation might ask for.

21 MR. OTTEN: Okay. Finally, at least

22 I have for now, you stated -- on page 33, you say

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1 the McMillan site is not an identified

2 archaeological site, right?

3 MS. EIG: That is correct.

4 MR. OTTEN: But in the July 14th

5 testimony on page 14, it shows that Tiber Creek

6 flows under this site. Are you -- you're aware

7 of that?

8 MS. EIG: Yes.

9 MR. OTTEN: Are you aware that Tiber

10 Creek dates back to the Cretaceous Period?

11 MS. EIG: Yes.

12 MR. OTTEN: And are you aware they

13 found dinosaur bones during the construction of

14 McMillan Waterworks?

15 MS. EIG: Originally in 1900?

16 MR. OTTEN: Yes, yes.

17 MS. EIG: No, I'm not aware of that.

18 MR. OTTEN: Now that you know, will

19 you be willing to check in with the

20 archaeological society to determine how likely

21 they might find any sort of archaeologically

22 important --

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1 MS. EIG: This project would have

2 already been vetted, if I might use that word, by

3 the D.C. Archaeologist, and also there is an

4 understanding that if anything would be found

5 during an unexpected, just discovery would be

6 made during the course of construction, that the

7 archaeologist would be brought into the site.

8 MR. OTTEN: As of now, there's nothing

9 on the report from the archaeological -- D.C.

10 government archaeological department?

11 MS. EIG: That's it my understanding,

12 yes.

13 MR. BYRNE: There's an archaeologist

14 on the HPRB.

15 MR. OTTEN: Okay, but they said

16 nothing to --

17 MR. BYRNE: Well, they approved the

18 project.

19 MR. OTTEN: Okay, okay. Let me move

20 to Mr. Dettman again. Mr. Dettman, you produced

21 a review and a report that was submitted for this

22 hearing as regards the special benefits of the

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1 project, vis-a-vis the complaint, right?

2 MR. DETTMAN: I provided a

3 Comprehensive Plan analysis, and as I said in my

4 testimony, and I think it's a very important

5 point worth reiterating, is that my role in this

6 proceeding is not to identify features of the

7 project that should warrant special merit,

8 collectively or individually. Those were the

9 responsibility --

10 MR. OTTEN: So on page one of your

11 report --

12 MR. DETTMAN: Let me answer your

13 question. That's the responsibility of my team

14 mates here.

15 MR. OTTEN: Okay.

16 MR. DETTMAN: And what I was doing

17 specifically, as I stated, is taking those

18 special merit features of the project that were

19 identified by others, and tying them to

20 Comprehensive Plan policies because per the

21 court's order, the greater the extent you could

22 do that, the more likely it is for the project to

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1 be found have special merit.

2 MR. OTTEN: Connecting it to Mr.

3 Byrne's decision, okay. Did you do that as a

4 Holland and Knight employee or as an NCPC

5 employee?

6 MR. DETTMAN: Did I do what?

7 MR. OTTEN: This review. Was this

8 NCPC work or was this Holland and Knight work?

9 MR. DETTMAN: My -- the full blown

10 Comprehensive Plan analysis that's attached in

11 our prehearing statement I prepared as a Holland

12 and Knight employee.

13 MR. OTTEN: Okay, and on page one of

14 the report, so that's Exhibit C in the June 23rd,

15 you say that the project removes quote-unquote

16 "physical barriers" which have "closed off the

17 site for decades." I presume you mean taking

18 down the fence?

19 MR. DETTMAN: Taking down the fence

20 and also opening up additional access through the

21 internal street network that will be provided.

22 MR. OTTEN: Okay. Are you aware there

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1 were city-sponsored and ANC and community-hosted

2 tours of this site up until a couple of years

3 ago?

4 MS. BROWN: Objection. He didn't

5 testify to that.

6 MR. OTTEN: Well, he testified that

7 the site was closed.

8 MR. BYRNE: I'll allow that question.

9 MR. OTTEN: Okay.

10 MR. BYRNE: Please answer the

11 question, sir.

12 MR. DETTMAN: I've heard that the City

13 provided tours of the site in the past.

14 MR. OTTEN: On page two of your

15 report, you say "The applicant has placed the

16 taller health care facility at the north end,

17 immediately across the street from the taller

18 Washington Hospital and Children's Medical

19 Center."

20 So like the exercise of Ms. Eig, it

21 would seem that you're claiming that they're

22 closer to the hospital centers, but isn't it true

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1 that it's closer to the row houses to the east of

2 the site?

3 MR. DETTMAN: If what you just read is

4 exactly what I wrote, I'm not claiming that. I'm

5 claiming that they're immediately across the

6 street from the taller health care facility

7 buildings, which they are.

8 MR. OTTEN: And isn't there a pretty

9 significant setback from Michigan Avenue to the

10 frontage of those medical complexes?

11 MR. DETTMAN: I wouldn't necessarily

12 call it a setback, almost like, as if it was a

13 purposeful setback. There are surface parking

14 lots that are there currently, yes.

15 MR. OTTEN: And on page three, you say

16 the applicant has maintained visual north-south

17 views. Can you point to those on the record?

18 MR. DETTMAN: Those north-south views,

19 as Ms. Eig testified to, are provided on Half

20 Street, on Quarter Street and Three Quarter

21 Street that would be provided, as well as the

22 north-south connections along the east and west

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1 sides of the Olmstead Walk.

2 MR. OTTEN: Will you be able to see

3 the Capitol from Michigan Avenue as you do now if

4 this project's built?

5 MS. BROWN: Objection. Assumes that

6 it can be seen now, and there's nothing in the

7 record to establish that.

8 MR. BYRNE: I think you can put on

9 what -- you can ask him about whether you can --

10 I suppose you can ask him a question as to

11 whether he knows what you'll be able to see from

12 Michigan Avenue after the project is built so --

13 MR. DETTMAN: Okay. I don't know what

14 you'll be able to see from Michigan Avenue and

15 how the current view will be changed.

16 MR. OTTEN: Are you aware of on the

17 record the Lincoln -- the staff leadership of

18 Lincoln's Cottage contesting how the project

19 destroys the view of the Capitol and other

20 downtown landmarks?

21 MS. BROWN: Objection.

22 MR. BYRNE: Sustained.

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1 MR. OTTEN: Didn't you conduct some

2 kind of view analysis at some point? Isn't there

3 something that you can point to that shows your

4 analysis in saying that the views are maintained?

5 MS. BROWN: Objection. He didn't

6 testify to that.

7 MR. BYRNE: So I think he just

8 testified about the ability to see down the

9 streets and along the Olmstead Walk on both

10 sides. Is that what you're asking?

11 MR. OTTEN: I am -- but specifically

12 to the Capitol and the Monument, which is a

13 historic viewshed and something that our members

14 certainly enjoy now. With your role in this

15 project on NCPC, did you not conduct a wire

16 diagram, an analysis of this viewshed?

17 MS. BROWN: Objection. His role at

18 NCPC is separate and distinct from his role here

19 today, in the testimony that he presented.

20 MR. BYRNE: Sustained.

21 MR. OTTEN: Just for clarification,

22 the gentleman next to me, Mr. Thakkar is eating

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1 and drinking. I wasn't sure we could do that in

2 this room.

3 MR. BYRNE: I would ask people

4 generally not to do that while they're at the

5 table.

6 MR. OTTEN: Okay. Thank you.

7 Otherwise, I'd go have a drink too but --

8 MR. BYRNE: If you want water or

9 something, you can have that.

10 MR. OTTEN: Okay. There is an NCPC

11 report though on the record, is there not, about

12 this project?

13 MR. DETTMAN: It is or it isn't,

14 right? There is an NCPC report in the record,

15 yes.

16 MR. OTTEN: And wasn't that report

17 penned by you, Mr. Dettman?

18 MR. BYRNE: Sustained.

19 MR. OTTEN: I just want to understand.

20 Were you working at Holland and Knight at the

21 same time as NCPC?

22 MS. BROWN: Objection. We clarified

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1 this last time when Ms. Ferster objected to his

2 testimony in general. It's been resolved, and I

3 don't know why we're revisiting it again.

4 MR. BYRNE: We went through that in

5 some detail last time, and the answer is no, he

6 was not.

7 MR. OTTEN: But we can't find any

8 viewsheds on the record, okay. Looking at page

9 four of your report, you claim that the buildings

10 across the street, the new buildings being placed

11 on the site along North Capitol, across the

12 street from the existing rowhouses, step down

13 from moderate and medium height buildings, is

14 that right?

15 MR. DETTMAN: Can you point me to the

16 direct -- can you point where that exact language

17 is?

18 MR. OTTEN: Yeah, on page four. And

19 then it looks to be including the red ink as a

20 paragraph, one, two, three, the four paragraph

21 about halfway down.

22 MR. DETTMAN: Does that sentence start

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1 "Aside from"?

2 MR. OTTEN: Yes.

3 MR. DETTMAN: "Aside from the frontage

4 along Parcel 1, the remainder of the North

5 Capitol Street frontage will be improved with

6 moderate to medium height buildings that step

7 down in height moving towards the proposed

8 recreation center and residential development

9 itself." Is that what you're referring to?

10 MR. OTTEN: Correct.

11 MR. DETTMAN: Okay.

12 MR. OTTEN: Do you recall how tall the

13 rowhouses are across the street on North Capitol,

14 in feet or floors?

15 MR. DETTMAN: My recollection is that

16 those are two and three story rowhomes.

17 MR. OTTEN: Okay, and when you define

18 or say "medium density improvements," what is

19 that height, feet or floors?

20 MR. DETTMAN: You know, I would put

21 those moderate to medium height says to me around

22 40 feet, consistent with 40 to 46 feet, 45 feet.

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1 That's consistent with a rowhouse height, say

2 like in a RF1 zone. I don't want to be too

3 technical. Medium density goes up maybe 70 to 80

4 feet, which is consistent with what's the

5 building height on Parcel 4, and consistent with

6 the moderate density consistent with the rowhomes

7 on Parcel 5.

8 MR. OTTEN: Okay, and also on that

9 same page, it's the paragraph above that, you say

10 that loading noise will be mitigated through the

11 curbside management plan? Can you point to --

12 can you help us find any noise studies on the

13 record?

14 MR. DETTMAN: I'm not aware of any

15 noise studies that are on the record in this

16 proceeding. It might be. I'm just -- I'm not

17 aware of it.

18 MR. OTTEN: Okay. You specifically

19 focus the noise to the loading trucks. Isn't

20 there noise generated by this project besides

21 that of loading trucks?

22 MR. DETTMAN: Like any project and

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1 vehicle traffic, people walking on the sidewalk

2 being loud, loading. Like any project, there

3 will be noise that will be generated that's not

4 currently on this vacant site now.

5 MR. OTTEN: Okay, right. So it's fair

6 to say there's no noise there now?

7 MR. DETTMAN: (No audible response)

8 MR. OTTEN: Okay. I take that as yes.

9 Okay, and but what about like the ambulances

10 coming to and leaving from the site? Is that --

11 MR. DETTMAN: Ambulances coming to the

12 site?

13 MR. OTTEN: Yes.

14 MR. DETTMAN: For people who are sick?

15 MR. OTTEN: For the medical offices

16 and complex.

17 MR. DETTMAN: I don't know that that's

18 knowable. It's a medical office building.

19 There's a hospital there. There are ambulances

20 going all the time. I don't understand the

21 question.

22 MR. OTTEN: I'll move on. In your

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1 analysis of the comp plan Mr. Dettman, and the

2 benefits of the project, whenever you mention

3 mitigation conditions, do you log that as a

4 benefit of the project?

5 MR. DETTMAN: Not in every instance,

6 no. There may be features of the project that

7 have been proffered as contributing to the

8 project's special merit by the others on this

9 team at the last proceeding. There may be some

10 that may serve as mitigation features, but that

11 in and of itself I don't believe automatically

12 excludes that feature as a special merit feature

13 under this proceeding.

14 MR. OTTEN: Well, let's take an

15 example. On page five, you claim that the

16 project will generate "a large number of new

17 vehicle trips, but the environmental impacts will

18 be mitigated, such as the air quality, carbon

19 dioxide." How is that possible?

20 MR. DETTMAN: There's just --

21 MS. BROWN: If I could just object.

22 I think he already answered the question

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1 generally, so getting a specific example I'm not

2 sure that we're going to get any more information

3 than the same one.

4 MR. BYRNE: But let's have this

5 example and let's see. So go ahead, sir.

6 MR. DETTMAN: Repeat your question.

7 MR. OTTEN: Okay. So on page five, if

8 I'm not mistaken it says that you claim the

9 project will generate "a large number of new

10 vehicle trips," but claim that "the environmental

11 impacts will be mitigated, such as the air

12 quality carbon dioxide." How do you figure that

13 to be?

14 MR. DETTMAN: When are you reading

15 from?

16 MR. OTTEN: So basically the last

17 paragraph, "With respect to environmental."

18 MR. DETTMAN: Okay, I see. There are

19 whole host of ways where you can mitigate impacts

20 to air quality and what-not, and as you know, the

21 District Department of Transportation did a full

22 blown analysis on this project and found that the

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1 transportation impacts of the project are

2 mitigated through it TDM plan and loading

3 management plan.

4 The Department of Energy and the

5 Environment testified extensively at the zoning

6 remand proceeding about how the project this

7 going to mitigate impacts on air quality

8 specifically through adherence to the modeling

9 that it in adherence to the air quality standards

10 that they applied.

11 In addition, I think in several areas

12 of the Comprehensive Plan analysis I prepared,

13 and it's well known that the more that you can

14 increase tree canopy on a site throughout the

15 City, tree canopy has scientifically been shown

16 to have improvements on air quality.

17 This site currently has very few

18 trees, very few healthy trees on the site, and as

19 part of the project there's going to be over 700

20 new trees transplanted on the site. That in and

21 of itself will contribute to improvements in air

22 quality, or help mitigate the impacts on air

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1 quality.

2 MR. OTTEN: You mentioned that one of

3 those mitigation techniques is traffic

4 management, and I think you're referring to the

5 lights, the new installation of stop signs and

6 lights.

7 MR. BYRNE: You know, I probably don't

8 want to hear more about the transportation plan.

9 I think that's a Zoning Commission issue by and

10 large, and I think -- I don't think it's a

11 fruitful line for you.

12 MR. OTTEN: Well, can I ask did the

13 Zoning Commission get into that?

14 MR. BYRNE: No, you can't. What the

15 Zoning Commission did, the Zoning Commission did.

16 That's their job. They haven't ruled yet so --

17 but they look at traffic impact. I was asked by

18 the Court of Appeals to stay away from things

19 like that.

20 MR. OTTEN: How do you determine the

21 special benefits then, based on their ruling?

22 MR. BYRNE: I'm not a witness here so

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1 go ahead.

2 MR. OTTEN: Okay. I'm not sure if I

3 asked you this yet, but the new volume of vehicle

4 trips. Did I ask you that?

5 MR. DETTMAN: (No audible response)

6 MR. OTTEN: Okay.

7 (Pause.)

8 MR. OTTEN: Would it be fair to say

9 that the bike and pedestrian safety is directly

10 connected to the number of vehicle trips or the

11 generated vehicle trips to this site?

12 MR. BYRNE: Really Mr. Otten, this

13 doesn't have anything to do with the case in

14 front of me. I don't -- the issue of managing

15 bicycle safety and traffic is really not part of

16 the Historic Preservation proceeding.

17 MR. OTTEN: I hear you. I guess what

18 I'm confused by, this was presented to you as why

19 this project elevates to one of special merit.

20 MR. BYRNE: No. Well, I think he said

21 why the project is consistent with the

22 Comprehensive Plan, and you know, you can make an

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1 argument, a legal argument that it has nothing to

2 do with it, that's fine. But sort of asking him

3 these kind of questions really isn't getting you

4 anywhere.

5 MR. OTTEN: I'm just going off the

6 testimony he's presented to you. One of the

7 special benefits that we've heard, you've

8 testified to, is the affordable housing component

9 of the project, right?

10 MR. DETTMAN: (No audible response)

11 MR. OTTEN: On page nine of your

12 report, Mr. Dettman, you say that 20 percent of

13 the gross floor area is dedicated as affordable

14 units for the life of the project. Do you see

15 that?

16 MR. DETTMAN: I see that.

17 MR. OTTEN: Okay. But isn't it true

18 it's not 20 percent of the gross floor area;

19 it's 20 percent of the units are affordable?

20 MR. DETTMAN: I believe that's the

21 requirement under the LDA. Mr. Thakkar maybe can

22 speak more intelligently about what the actual

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1 requirement in the LDA is. But I do believe it's

2 20 percent of the units.

3 MR. OTTEN: Twenty percent of the

4 units?

5 MR. BYRNE: Mr. Thakkar.

6 MR. THAKKAR: Yes. Just to be clear,

7 the LDA does not state 20 percent of the units.

8 We have agreed upon the number of units in the

9 LDA, and we have to provide a minimum number and

10 this project I believe exceeds that minimum

11 number.

12 MR. OTTEN: Is that number based on

13 gross floor area or is it a metric of units and

14 not gross floor area?

15 MR. THAKKAR: I don't think anyone

16 testified to this, but it is based on the number

17 of units.

18 MR. OTTEN: Thank you. Transportation

19 aspects of this project, not the impacts but the

20 benefits of it is being touted as something

21 special here, as I see on page seven and six.

22 For example, Mr. Dettman you say that "Its many

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1 improvements to access to public transportation."

2 Can you describe that? What do you mean by

3 access to public transportation and what are the

4 improvements?

5 MR. DETTMAN: Sure, sure, and it sort

6 of gets back to your questioning about mitigation

7 versus special merit benefits. Perhaps to answer

8 your question, let me give you an example about

9 the shuttle, because the shuttle was discussed a

10 little bit at the last proceeding as well.

11 While the shuttle may be a

12 transportation mitigation feature or an aspect of

13 transportation mitigation, in the Zoning

14 proceeding, as I mentioned at the last hearing,

15 it also has special merit benefits as well. This

16 is going to be a shuttle that's going to be

17 available to the public, not only just to people

18 who are residing on site but also in the

19 surrounding neighborhood.

20 The shuttle exists for purposes of

21 providing increased and improvements to access to

22 transportation to the Brookland Metro Station.

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1 Seniors who are looking to get to areas that are,

2 you know, their doctor's appointments, their

3 shopping, you know, to satisfy their shopping

4 needs. It's going to be available to seniors

5 that are in the affordable senior housing

6 dwelling units.

7 They can jump on the shuttle. They

8 can take care of their needs. They can increase

9 access to transportation.

10 MR. OTTEN: Okay, I appreciate that

11 answer. Has there been an attempt to quantify or

12 project how many persons from the general public,

13 not necessarily going -- not either coming or

14 going from the McMillan site will be using the

15 shuttle? So the general public as you say.

16 MR. DETTMAN: I know that it will be

17 available to the general public. The number of

18 trips that are accommodated, I guess that's up to

19 how many people from the general public want to

20 use the shuttle. I'm not aware of any study.

21 MR. BYRNE: So not aware of a study.

22 MR. OTTEN: Okay, and you say that the

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1 project on page seven, the last sentence there.

2 You say the project will provide opportunities in

3 close proximity to several Metro bus routes. Are

4 you aware about -- are you aware that they're

5 actually considering cutting Metro bus routes

6 around this park?

7 MR. DETTMAN: I'm not aware of that.

8 MR. OTTEN: Okay. I guess to Mr.

9 Dettman and Mr. Thakkar, are you familiar with

10 the Comprehensive Plan policies that speak to

11 building an inclusive city with 30 percent as

12 kind of the benchmark for affordable housing?

13 MR. DETTMAN: I am aware of the vision

14 framework that the District has out there, which

15 serves as the basis of the 2006 Comprehensive

16 Plan. I believe it's called Planning for an

17 Inclusive City. That calls for the 30 percent of

18 all new affordable housing -- new, 30 percent of

19 all new housing being devoted to affordable

20 housing. Not on a project by project basis.

21 Just a general statement that 30 percent of all

22 new housing should be devoted as affordable

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1 housing.

2 MR. OTTEN: So is it an impact that

3 it's below that and not above that number? Why

4 is it a benefit that it's only 20 percent?

5 MR. BYRNE: I think he just testified

6 that that was an aspiration for all the housing

7 to be constructed and not project by project.

8 MR. OTTEN: The sales price of the

9 affordable multi-family units, do you know what

10 that will be for the project?

11 MS. BROWN: I don't believe anybody

12 testified to sale prices.

13 MR. BYRNE: Right, right. But that's

14 established based upon AMI, where the AMI is at

15 the time they come on the market.

16 MR. OTTEN: And are you aware of any

17 analysis done by the fact that the -- I guess

18 that's Mr. Bogorad. You did the study on the

19 affordability, gentrification displacement.

20 MS. BROWN: Objection. He did not

21 testify to displacement or gentrification.

22 MR. OTTEN: No? What did you testify

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1 to?

2 MR. BYRNE: No, I don't --

3 MS. BROWN: It's on the record for you

4 to decide what he testified to.

5 MR. BYRNE: I don't think you get to

6 ask him what he testified to.

7 MR. OTTEN: Well, it's not on the

8 record because I never got it. Just a print

9 copy.

10 MR. BYRNE: So Mr. Otten, can you

11 estimate how much longer you need?

12 MR. OTTEN: I have to ask Mr. Silman

13 (phonetic) questions and Mr. Weers and --

14 MR. BYRNE: Okay. So --

15 MR. OTTEN: I don't know. Maybe

16 another hour.

17 MR. BYRNE: Another hour. So why

18 don't we take a break here for five minutes and

19 let people stretch, and if they have to go to the

20 restroom, do so.

21 (Whereupon, the above-entitled matter

22 went off the record at 10:48 a.m. and resumed at

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1 10:54 a.m.)

2 MR. BYRNE: Okay folks, we're

3 beginning. Quiet in the back please.

4 MR. OTTEN: Okay. Chris Otten for the

5 record, coming back from the break for D.C. for

6 Reasonable Development. Mr. Dettman, on page ten

7 you mention 9.3 acres of new parks and open space

8 as part of this plan. It's true that when you

9 say that, you're not talking about contiguous

10 open space, right? It's broken up.

11 MR. DETTMAN: That's correct. There

12 are other areas of the component analysis that,

13 especially in the policy that talks about

14 substantial portion of contiguous space,

15 continuous open space. I think that policy is in

16 the mid-city element, where I specify that it's

17 the six acre park on the south that's the large,

18 contiguous open space.

19 But collectively, it's, you know, well

20 above that in terms of the amount of the site

21 that will be devoted to parks, recreation and

22 open space.

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1 MR. OTTEN: And basically I'm just

2 working through your report here. I just want to

3 clarify, page 12 you say the project will include

4 three and four-bedroom unit types. But I don't

5 see four bedrooms in the matrix.

6 MR. DETTMAN: That's a typo. I

7 believe all the townhomes will be three bedroom.

8 Sometimes there's an option.

9 MR. THAKKAR: Mr. Dettman likely

10 included that because townhomes can include a

11 fourth bedroom, but we haven't gotten to the

12 stage of planning where we could confirm. There

13 are a minimum of three bedrooms is the right way

14 to say it.

15 MR. OTTEN: Okay. So there could be

16 larger family units possibly?

17 MR. THAKKAR: There could be.

18 MR. OTTEN: When does that get

19 committed to?

20 MR. THAKKAR: Well, there's no -- how

21 should I say this? There's no commitment

22 process. It's the discretion of the development

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1 team. So once we get through this entitlement

2 process, which correctly stated that we're going

3 through now again, after that prior to getting

4 your building permits, you have to confirm the

5 exact layouts of every unit in the project.

6 MR. OTTEN: To that discretion, if I

7 could ask, what determines the need -- what

8 shapes that discretion? Is there a need analysis

9 done of the numbers of families requiring four

10 bedroom units?

11 MR. THAKKAR: So just to be clear,

12 this isn't a project where -- you might be

13 referring to certain projects where there are

14 units that are demolished and then we have to

15 come back and replace those units. This is new

16 affordable housing, and so we must meet our

17 commitments outlined in the LDA as I spoke to

18 prior to with regard to the number of units

19 provided in the different categories, whether it

20 be senior housing or multi-family housing or

21 townhouses, and that's what we're doing.

22 MR. OTTEN: Is the LDA on the record

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1 by chance? I don't recall seeing it. That's

2 what I'm asking.

3 MS. BROWN: Just for the record, we

4 have links to the final Council approval on page

5 30 of our prehearing submission.

6 MR. OTTEN: Okay. Mr. Dettman, this

7 kind of goes back to the question about renter

8 and owner. You say the project will include both

9 renter occupied and owner occupied. I just --

10 you don't know the ratio at this point?

11 MR. DETTMAN: I don't know the ratio.

12 I'm also not the best person to answer that

13 question.

14 MR. OTTEN: Okay, and I think you

15 mentioned it, right?

16 MR. THAKKAR: Again to be clear, the

17 townhouses are ownership.

18 MR. OTTEN: The townhouses are

19 ownership?

20 MR. THAKKAR: Right. So the 146 total

21 townhouses are ownership and the senior housing

22 and multi-family housing is planned as rental

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1 housing.

2 MR. OTTEN: Okay, thank you. The

3 senior housing on page 13, the last paragraph,

4 you say that the project will include 85 senior

5 affordable dwelling units that will be integrated

6 into the project. When you say "integrated," how

7 does that square with the fact that the senior

8 building has its own lobby and its own door as

9 part of the same building?

10 MR. DETTMAN: Well, what it says is

11 integrated into the project. Then it goes on to

12 say "such that residents of the senior affordable

13 units will be in close walking distance to key

14 health care services, recreation and retail

15 uses." So it's integrated as part of the overall

16 project, and those residents will have close

17 proximity access to all those things that listed.

18 MR. OTTEN: Do you have any idea why

19 the senior building is separated out with own

20 lobby and --

21 MR. DETTMAN: I don't.

22 MR. OTTEN: You speak to the

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1 environmental elements, and on pages 14, 15, 16,

2 17, you talk about runoff and stuff. It seems

3 like the site is significantly more paved than

4 currently now. Is that a fair statement?

5 MR. DETTMAN: The percentage of

6 impervious surface on this site will go up as a

7 result of this project. It does not mean that

8 the degree of storm water runoff will go up.

9 MR. OTTEN: Okay. What about the

10 carbon ink index of the site? Are you aware of

11 anything like that, any study in the record?

12 MR. DETTMAN: I'm not aware of any

13 study, no. But what I did say in my analysis, I

14 spoke to urban heat island on effects and that

15 the benefits that this project will provide in

16 helping to mitigate urban heat island through the

17 700 new trees that we've placed on the site.

18 MR. OTTEN: Do you have a baseline

19 level of the heat island effect now?

20 MR. DETTMAN: Ms. Eig is reminding me

21 that the entire site is impervious to that.

22 MR. OTTEN: It's impervious?

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1 MR. DETTMAN: It's impervious.

2 MR. OTTEN: So let me understand that

3 because -- well define impervious for me?

4 MS. EIG: The site is essentially a

5 green roof. There's the -- the filter beds have

6 concrete roofs, ceilings, and it's continuous,

7 and there is grass on top of that dirt and grass

8 on top of it. So the water does not actually get

9 into the earth beyond that.

10 MR. OTTEN: So by that logic, part of

11 the impervious surfaces of the new structures is

12 their green roofs. Isn't that the same --

13 MS. EIG: I don't know the answer to

14 that one. I'm just talking about the historic

15 condition here.

16 MR. OTTEN: Okay. Do you have anything

17 on that, Mr. Dettman?

18 MR. DETTMAN: Ask the question again?

19 MR. OTTEN: Just the comparison of --

20 we just heard from Ms. Eig that the current

21 existing is essentially a green roof on the

22 waterworks. But aren't some of the impervious

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1 surfaces you're speaking of green roofs on the

2 buildings?

3 MR. DETTMAN: Probably, yeah.

4 MR. OTTEN: On page 22, you talk about

5 -- you reference the commercial displacement.

6 MR. BELL: Can I just weigh in on

7 that, just for a second on that last issue?

8 MR. OTTEN: Sure.

9 MR. BELL: The LEED Silver, there are

10 different ways to get to the LEED Silver, that

11 the buildings are going to be listed as. So that

12 might be one technique that a builder would use

13 to get to LEED Silver as the commitment is in the

14 master plan, with the green roofs.

15 MR. DETTMAN: And I would only add

16 that we not proffering the green roofs as a

17 special merit feature of the project. What we've

18 proffered is that the entire project has been

19 looked at holistically, and will be certified as

20 LEED Neighborhood Development, LEED ND Gold.

21 That is the special merit feature of this

22 project.

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1 MR. BYRNE: Okay. You know, it might

2 be helpful for me, I don't think it's in the

3 record, of some explanation about what that --

4 what's provided for in LEED Neighborhood Gold.

5 Just some so it's a reference point.

6 MR. OTTEN: That would be helpful, and

7 I guess following on, has this certification been

8 received yet by I guess -- I don't know who gives

9 that certification. Is it the Green Building

10 Council?

11 MR. BELL: It has to be independently

12 certified. So no, it hasn't been certified yet.

13 It's a commitment.

14 MR. OTTEN: It's a commitment, okay.

15 MR. BELL: And you hire someone to do

16 the certification.

17 MR. OTTEN: When does that happen in

18 the process?

19 MR. BELL: It happens as -- in the

20 beginning of the project, as drawings are being

21 developed, and then periodically through

22 constructions there are measures and things like

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1 that and also at the end, as the total

2 certification is measured. So what you want to

3 do is start it fairly early on, so all the

4 different things that go into planning and go in

5 construction are accounted for.

6 MR. OTTEN: But the final

7 certification doesn't occur until the project's

8 built?

9 MR. BELL: That is correct.

10 MR. OTTEN: Okay. I guess just to

11 proceed that, could you seek certification now

12 with what you have, the plans that you have? Is

13 that possible?

14 MR. BELL: No, because you have to

15 build the project.

16 MR. OTTEN: Okay.

17 MR. BELL: It's a commitment now.

18 MR. OTTEN: And if you don't meet that

19 commitment, what happens then?

20 MR. BELL: You track it along the way,

21 so that you do meet it.

22 MR. OTTEN: Okay. Mr. Dettman, on

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1 page 22, you reference commercial displacement,

2 and you say that it will not result in any direct

3 displacement of existing small and local

4 businesses. Have you talked to any of the

5 existing local and small businesses in the area?

6 MR. DETTMAN: There are none on this

7 site, and I think what you just read is that it's

8 not going to result in any direct displacement of

9 existing small and local businesses, as the site

10 is currently vacant.

11 MR. OTTEN: I'm sorry. I got

12 distracted, Mr. Dettman. Can you answer that

13 again?

14 MR. DETTMAN: Sure. I said that there

15 are no existing small and local businesses on the

16 site, and as you just read, the language that's

17 in the comp plan analysis provided says the

18 project will not result in any direct

19 displacement of existing small and local

20 businesses as the site is currently vacant.

21 MR. OTTEN: Okay, and so but there

22 could be displacement of surrounding small

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1 businesses in competition with let's say the

2 grocery store? Or maybe just by the sheer

3 construction of this massive project.

4 MS. BROWN: Objection.

5 MR. BYRNE: That's just an assertion.

6 He didn't testify about that.

7 MS. BROWN: And it calls for

8 speculation.

9 MR. OTTEN: Well, but the question is

10 has anybody spoken to any of the surrounding

11 small businesses to make this determination?

12 MR. BYRNE: He testified that there

13 would be no direct displacement on a site that's

14 vacant.

15 MR. OTTEN: Correct, but did --

16 there's displacement that happens other than --

17 MR. BYRNE: I understand that, and

18 that can be part of your case if you want to put

19 it on.

20 MR. OTTEN: So Mr. Dettman, I believe

21 throughout your testimony you speak about Cell 14

22 as being retained and the surface area being one

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1 of the open green spaces as part of the acreage

2 of open green space, right?

3 MR. DETTMAN: That's correct, a one

4 acre park.

5 MR. OTTEN: And so that park will have

6 folks that can walk on it, picnic on it?

7 MR. DETTMAN: That's my understanding.

8 MR. OTTEN: Okay, and is it also your

9 understanding that that cell right now is being

10 repurposed right now by D.C. Water and will be

11 through 2022?

12 MR. DETTMAN: That's my understanding,

13 yes.

14 MR. OTTEN: Okay. So on page 27, you

15 talk about city gateways and you talk about how

16 the site is located along the North Capitol

17 Street corridor, finding it as an important

18 gateway in the Capitol, right? Page 27.

19 MR. DETTMAN: I see it.

20 MR. OTTEN: Are you aware that that

21 North Capitol Street as being an important

22 gateway is also an evacuation route?

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1 MS. BROWN: Relevance.

2 MR. BYRNE: Relevance, yes please.

3 MR. OTTEN: It has to do with the --

4 he testified to the fact that the project will

5 generate a large volume of traffic and how that

6 may impact this evacuation route.

7 MR. BYRNE: I don't want -- that's not

8 going to help you here. That's for the Zoning, I

9 mean that's maybe for the Zoning Commission but

10 it's not for here.

11 MR. OTTEN: It's in his testimony to

12 you.

13 MR. BYRNE: No, it's not.

14 MR. OTTEN: It's what he said. Okay.

15 So on page 28, you write in the second paragraph,

16 towards the end of the second paragraph, "In

17 response to the extensive input gained throughout

18 this process, that it is involved substantially."

19 How long have you personally been involved in

20 this process?

21 MR. DETTMAN: As an employee of

22 Holland and Knight since February of 2015. As an

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1 employee of NCPC I was learning the project prior

2 to that I'd say -- I don't even know. Sometime

3 in 2014.

4 MR. OTTEN: Okay. Turning to page 35

5 of your testimony, you talk about community

6 facility and long-term impacts. When you relate

7 your conclusions to the comprehensive plan

8 policies here, do you have any baseline levels of

9 the facilities now? For example of access to

10 schools or emergency response time or anything to

11 make your conclusions? How do you come to those

12 conclusions without baseline levels?

13 MR. DETTMAN: You'll have to point

14 where in this document on page 35 that you're

15 tying your question to.

16 MR. OTTEN: Okay, okay. So let's say

17 Policy CSF-111, Adequate Facilities. You

18 reference that policy, right?

19 MR. DETTMAN: I see it.

20 MR. OTTEN: And then you say that it

21 will not affect the facilities for delivery of

22 public services, and you reference some agencies

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1 that have put information on the record.

2 MR. DETTMAN: Right. So the DCRA

3 environmental impact screening process is when

4 DPW and D.C. Water reviewed the project. I make

5 reference to Washington Gas, Verizon and Comcast.

6 The language of this response in terms of the

7 project's consistency with this policy relies

8 upon reports from the agencies. There's nothing

9 in here that talks about access to schools.

10 MR. OTTEN: So for those agencies, are

11 you aware if they did any baseline analysis of

12 the current existing levels of service?

13 MR. DETTMAN: No.

14 MR. OTTEN: Okay, and if you turn to

15 page 37, it's very similar. It goes into the

16 educational facilities and it talks about a

17 contribution from the applicant to the Education

18 Fund. Do you see that?

19 MR. DETTMAN: I see that.

20 MR. OTTEN: Is there any analysis of

21 about bringing on all, basically a small village

22 of new homes, how that will -- how those people

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1 that will be moving there will affect or will

2 need higher levels of educational service or

3 community facility service?

4 MR. DETTMAN: Can you restate the

5 question?

6 MR. OTTEN: Has there been any

7 analysis done to show that the people moving into

8 the project that you're supporting will have

9 equal access at what exists now? Is there any

10 baseline analysis of what exists now?

11 MS. BROWN: And I'd object because --

12 MR. DETTMAN: I'm not aware of any.

13 MS. BROWN: That's not what it says.

14 MR. DETTMAN: The report talks about

15 the contribution that the applicant will make to

16 the education fund. I'm not aware of any

17 analysis based on an analysis about access or

18 capacity of, you know, public schools, and I

19 don't believe that base -- even if baseline

20 analyses existed, I'm not sure what relevance it

21 would have to the special merit inquiry or the

22 argument about consistency with the Act.

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1 MR. BYRNE: Now let's not -- let's not

2 get into an argument about. I mean he's answered

3 the question. Let's move on.

4 MR. OTTEN: Okay. I think we talked

5 a little bit about storm water. You go into that

6 in 38. Do you have any baseline levels now of

7 the storm water runoff from the site right now?

8 MR. DETTMAN: I don't have them.

9 MR. OTTEN: Okay. You are -- Mr.

10 Dettman, you are familiar though with the

11 Comprehensive Plan discussing in good land use

12 planning a whole neighborhood approach, right?

13 MR. DETTMAN: Yes.

14 MR. OTTEN: And how does play into

15 your analysis vis-a-vis the special benefits of

16 this project?

17 MR. DETTMAN: I don't understand the

18 question.

19 MR. OTTEN: In your review of the

20 record and the case, in terms of that policy

21 about a whole neighborhood approach, do you

22 believe that was done in this case, in any

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1 hearing, to give rise to a level of special

2 benefit?

3 MR. DETTMAN: Absolutely, 100 percent.

4 I think the policy of the Comprehensive Plan

5 you're referring to is in the housing element.

6 It's Policy H-1.4.6 and it's entitled "Whole

7 Neighborhood Approach." "Ensure that the

8 construction of housing is accompanied by

9 concurrent programs to improve neighborhood

10 services, schools, job training, childcare,

11 parks, health care facilities, police and fire

12 facilities, transportation and emergency response

13 capacity."

14 There are elements -- there are

15 substantial elements of this project, that relate

16 -- that are accompanied, that accompany the

17 housing that will improve neighborhood services

18 by job training, lots of parks, health care

19 facilities, all that stuff.

20 So I think that a whole neighborhood

21 approach, not only with respect to looking at

22 this project holistically for LEED ND, but from a

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1 land planning perspective it has been looked at

2 holistically with a neighborhood in mind.

3 MR. OTTEN: Okay. Are you aware that

4 the -- and Mr. Bell, please answer this as well

5 if you're aware of this, but that the Zoning

6 Order 1314 states that "The applicant shall put

7 forth its best efforts to achieve a LEED Silver

8 rating, but the applicant shall not be required

9 to obtain the certification from the U.S. Green

10 Building Council."

11 How does -- I mean how does the zoning

12 order square with what you were just testifying

13 about getting certification?

14 MR. BELL: We will track LEED Silver

15 and demonstrate that it meets the criteria.

16 That's the commitment.

17 MR. BYRNE: Does that mean you don't

18 need certification from the Green Building

19 Council? You can just make, show the Zoning

20 Commission?

21 MR. DETTMAN: I can speak to that,

22 because what the portion of the order that Mr.

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1 Otten's reading, what comes just before that is

2 the condition of the order, where the applicant

3 is required to be certified as LEED ND Gold.

4 MR. BYRNE: Okay.

5 MR. DETTMAN: So overall, the

6 applicant is required, which as Mr. Bell

7 discussed, the actual certification cannot happen

8 until after the project is built and actually

9 occupied and operating. But the condition is to

10 be certified as LEED ND Gold, and as in terms of

11 the individual buildings throughout the project,

12 it's what Mr. Otten just read.

13 MR. BYRNE: Good. Thank you.

14 MR. OTTEN: Okay, and Mr. Bell, I mean

15 yeah Mr. Bell, back to the -- just the

16 alternatives real quick. Looking at again for me

17 the master plan alternatives on page 64, isn't it

18 the case that one of these plans did not have a

19 medical complex as part of it, or was the health

20 care facilities always a part of all these plans?

21 MR. BELL: I think I testified that

22 the health care facilities came at a certain

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1 point in time. They were not part of the

2 original conceptualization of the plan.

3 MR. OTTEN: And did any of the

4 alternatives have less demolition of the

5 underground vaults?

6 MR. BELL: I think I testified that

7 the final master plan that we arrived at was the

8 one that had the least amount of demolition of

9 the underground vaults. Previous plans proposed

10 more.

11 MR. OTTEN: And just looking at the

12 filters or the vaults underneath, I guess that's

13 on page 14 of the printed ones, the structural

14 analysis, that's the -- I'm sorry, page 14, which

15 is the -- it should show the bird's eye view of

16 the filter beds.

17 MR. BELL: Okay. What page?

18 MR. OTTEN: That's 15 in the printed

19 version. So it's 13 in the electronic and 14

20 printed, and the title of this "Structural

21 Analysis, Underground Vaults," right? So this

22 is the existing conditions, as it states here,

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1 and if I'm not mistaken, that's Tiber Creek

2 flowing in the bottom, the southern, southeastern

3 portion of the site? Everybody's aware of that.

4 MR. BYRNE: So is this for Mr. Ruiz?

5 MR. OTTEN: Not yet, no. I was going

6 to ask Mr. Bell about the -- following it from

7 the alternatives, any alternatives that have less

8 demolition.

9 MR. BYRNE: Okay.

10 MR. OTTEN: So how come -- are you

11 aware of any rationale as to why the green

12 representing this most solid cells, why no

13 alternatives considered those to be --

14 MR. BELL: What you're doing when

15 you're doing a master plan, Mr. Otten, is you're

16 looking at a whole variety of conditions and

17 possibilities. So you don't look at any one

18 thing. Our planning revealed that any of the

19 cells, and our understanding from Silman, any of

20 the cells that would be retained would require

21 significant intervention for them to be included

22 in the master plan to stabilized them, which

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1 would go for any of the cells in the complex.

2 So what you're trying to do is you're

3 trying to measure the open space plan, the

4 development plan and the preservation plan

5 together, and decide on strategy that maximizes

6 the potential of all three of those. So it was

7 not simply a condition for us of one factor

8 determining the master plan, but it was simply a

9 sophisticated sort of study of how different

10 things come together to make the plan.

11 MR. OTTEN: Okay, and so that study

12 led to the decision to give up the most

13 salvageable cells?

14 MR. BYRNE: Excuse me a second. Sir,

15 what's going on with the camera?

16 (Off-microphone comments.)

17 MR. BYRNE: We don't have to have

18 that, do we? I don't think -- I don't think that

19 the --

20 (Off-microphone comments.)

21 MR. BYRNE: It is. Oh, okay. What

22 about the camera?

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1 (Off-microphone comment.)

2 MR. BYRNE: Okay, sir. What do you --

3 I'm sorry, you said you wanted to take pictures

4 of who?

5 (Off-microphone comments.)

6 MR. BYRNE: You may not do that,

7 sorry. Now, here's something surprising. It

8 turns out, Ms. Ferster, that this is being live-

9 streamed. We didn't request it, but Mr. Callcott

10 just found out that it's happening nonetheless.

11 So --

12 MR. OTTEN: Just for the record, I

13 believe any public hearing can be taped by

14 anybody from the public, including the press, and

15 usually they stand right over here behind the --

16 behind the recorder of the transcript.

17 MS. FERSTER: Could Mr. Callcott

18 clarify how members of the public can access this

19 webstream?

20 MR. BYRNE: Yes. That would be --

21 that makes sense.

22 (Off-microphone comment.)

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1 MR. BYRNE: No, it's not. Sorry.

2 MR. CALLCOTT: It can be accessed

3 through the HPO website?

4 MR. BYRNE: The HPO website?

5 MR. CALLCOTT: Yeah,

6 www.planning.dc.gov, and if you click on -- I

7 suppose if you click on Historic Preservation

8 Review Board, which is what's normally being

9 webcast from this room, it would be there.

10 MR. BYRNE: Okay. So got that, Ms.

11 Ferster?

12 MS. FERSTER: I need to adjourn so I

13 can get this information to our expert, who can

14 monitor --

15 MR. BYRNE: That seems -- that does

16 seem fair. So let's --

17 MS. FERSTER: Let me -- can you just

18 -- I didn't get the entire website. Can you say

19 that again? www.planning --

20 MR. CALLCOTT: Dot dc dot gov.

21 MS. FERSTER: Dot dc dot gov, forward

22 slash? Something.

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1 MR. CALLCOTT: No forward slash.

2 MS. FERSTER: And then go to HPRB, and

3 access the HPRB live webcast?

4 (Off-microphone comments.)

5 (Pause.)

6 MR. BYRNE: Do you need to take a

7 minute, Ms. Ferster?

8 MS. FERSTER: Yes. I need to get this

9 to Kirby, who's calling in to me because she's

10 following it, because she's going to be

11 conferenced in.

12 MR. BYRNE: Okay, okay. Wait. Just

13 wait one minute, I'm sorry.

14 MR. OTTEN: Mr. Byrne, do you mind if

15 I use the restroom?

16 MR. BYRNE: Yes.

17 MR. OTTEN: Thank you.

18 MR. BYRNE: All right. So we're

19 taking -- it looks like we're taking a short

20 break for human needs.

21 (Whereupon, the above-entitled matter

22 went off the record at 11:24 a.m. and resumed at

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1 11:30 a.m.)

2 MR. BYRNE: Okay, looks like we're

3 ready to go again. Okay, let's go.

4 MR. OTTEN: I just want to have some

5 clarification of understanding about public

6 meetings and videotaping of public meetings,

7 because as a member of the public, I generally

8 tape meetings or portions of meetings when I'm

9 here, and I've never heard that that's not

10 allowed. So I'm confused by that.

11 MR. BYRNE: Well, I've never had --

12 I've never had people tape videotapes of any

13 Mayor's Agent hearing I've ever presided in, and

14 unless you show me a legal requirement that I

15 must do so, I'm not going to do it.

16 MR. OTTEN: Okay.

17 MR. BYRNE: Regulations requiring --

18 MR. OTTEN: It was sunshine laws.

19 MR. BYRNE: Well --

20 MR. OTTEN: All right.

21 MS. FERSTER: Just for the record,

22 this webcast is available not on the Historic

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1 Preservation Review Board's site; it's accessible

2 on the Office of Zoning website. It is a Zoning

3 webcast.

4 MR. BYRNE: Okay, thank you.

5 (Pause.)

6 MR. OTTEN: Yeah. I just told the

7 gentleman that you're not going to allow the

8 videotaping. I don't know the person, but as a

9 courtesy I informed him of what you just said.

10 MR. BYRNE: Okay. Well, I told him

11 too so --

12 MR. OTTEN: Okay. So I think we were

13 on yeah, page 13 electronically, page 14 printed

14 of the filter beds, the underground vaults, the

15 historic underground vaults, and I guess I was

16 asking about the -- why don't any of the

17 alternatives -- why didn't you consider

18 preserving the cells that are most structurally

19 sound at this point?

20 MR. BELL: I think I just answered

21 that.

22 MR. BYRNE: Can you say again in like

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1 one sentence so we can go on?

2 MR. BELL: So when you're do a master

3 plan, you're taking into consideration not just

4 one factor but many factors. In consultation

5 with our structural engineer, it was felt that

6 significant intervention would be necessary for

7 any of the cells, no matter what condition

8 they're in, to stabilize them, and we felt that

9 the ones that we chose were both in very good

10 positions to be experienced by the public and the

11 park in the north service court, and that they

12 would also require like any cell on the site

13 significant intervention to stabilize them.

14 We felt that when we looked at the

15 factors of the master plan and the location and

16 the experience, that these were the best ones to

17 use.

18 MR. OTTEN: Okay. So if I'm not

19 mistaken, the latest plan, the 2016 plan, has

20 Cell 28 partially preserved, right?

21 MR. BELL: That's correct.

22 MR. OTTEN: And isn't it fair to say

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1 that when you say "significant intervention,"

2 you're talking cost and materials and labor?

3 MR. BELL: And life safety.

4 MR. OTTEN: And life safety. And so

5 wouldn't it be much -- how much more significant

6 is the intervention to save half of 28 then let's

7 say 16, which is green on the map? Is it

8 significantly more intervention?

9 MR. BELL: I think it's fair to say

10 that any saving, any cell would require very

11 significant stabilization, structural

12 stabilization. I can't quantify that for you at

13 this point in time.

14 MS. BROWN: And it may be more

15 appropriately directed to --

16 MR. BELL: Mr. Ruiz.

17 MS. BROWN: Mr. Ruiz.

18 MR. BELL: Yes.

19 MR. OTTEN: Okay. Same question.

20 MR. RUIZ: Well, as I previously

21 testified --

22 MR. BYRNE: Mr. Ruiz, I'm sorry. This

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1 is the first time you've spoken.

2 MR. RUIZ: Oh, I'm sorry.

3 MR. BYRNE: So just please identify

4 yourself for the reporter.

5 MR. RUIZ: My name's Christopher Ruiz

6 with Silman.

7 MR. BYRNE: Thank you.

8 MR. RUIZ: As I testified previously,

9 regardless of the condition, any cells would

10 require significant stabilization.

11 MR. OTTEN: But is it fair to say that

12 one that you've colored orange versus one that

13 you've colored green would -- it would -- is

14 there a ratio of how much more intervention? Is

15 there --

16 MR. RUIZ: It would require the same.

17 MR. OTTEN: The same, okay. Now so

18 you testified, Mr. Ruiz, at the last hearing on

19 July 14th that this is unreinforced concrete

20 construction, right?

21 MR. RUIZ: Correct.

22 MR. OTTEN: On the vaults, and that

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1 this type of construction can collapse suddenly?

2 MR. RUIZ: Correct.

3 MR. OTTEN: Are you aware of other

4 unreinforced concrete structures in the District?

5 For example, the Taft Bridge?

6 MR. RUIZ: I do not know of any such

7 structures, not to say there isn't any.

8 MR. OTTEN: Okay, and I think last

9 time on the July 14th, you said you can

10 practically save any of these cells, that there's

11 some kind of costs associated with that. Did you

12 do the cost analysis on that?

13 MR. RUIZ: No, I did not.

14 MR. OTTEN: Did you happen to see the

15 cost analysis in the OP report in 2000 or 2002?

16 MR. RUIZ: I did.

17 MR. OTTEN: Okay.

18 MR. RUIZ: You mean the CCJM report?

19 MR. OTTEN: I think that's one of

20 them. There's also the 2002 report.

21 MR. RUIZ: Well, I've only seen the

22 CCJM report.

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1 MR. OTTEN: Okay, and there are dollar

2 figures associated with intervention in the

3 different types of cells?

4 MR. RUIZ: That's correct.

5 MR. OTTEN: Okay, and do you recall

6 that they cost different prices for the different

7 quality of the cell?

8 MR. RUIZ: No.

9 MR. OTTEN: You don't recall that or

10 --

11 MR. RUIZ: I don't know the exact

12 figure, no.

13 MR. OTTEN: So and you mentioned at

14 the July 14th hearing -- well let me ask you

15 this. In your analysis, did you actually go down

16 into the site?

17 MR. RUIZ: Yes.

18 MR. OTTEN: You've been down below

19 into the vaults?

20 MR. RUIZ: Yes, every single vault, or

21 cells I'd say.

22 MR. OTTEN: Okay, and the report

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1 you're mentioning, the 2000 report --

2 MS. BROWN: Clarification please.

3 MR. OTTEN: Yeah, the report you just

4 referenced from 2000, the CCGM report, CCJM

5 report. Doesn't that have a map that's

6 essentially describing the same levels of

7 structural integrity as the one you put in on the

8 record?

9 MR. RUIZ: Yes.

10 MR. OTTEN: Okay. So between now --

11 between 2000 and when did you do this report?

12 MR. RUIZ: As listed on the slide,

13 2012 and 2014.

14 MR. OTTEN: Okay. So in 14 years,

15 nothing has significantly changed?

16 MR. RUIZ: I can't verify that for

17 exact, as significant. What do you mean by

18 significant?

19 MR. OTTEN: I mean I just -- in terms

20 of the map and the descriptions of these

21 structural integrity of the cells.

22 MR. RUIZ: I believe the descriptions

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1 are similar.

2 MR. OTTEN: Okay, and the last time on

3 July 14th, you mentioned that at any point, the

4 green could shift to yellow, the yellow could

5 shift to orange, the orange could shift to red in

6 terms of structural integrity?

7 MR. RUIZ: Correct.

8 MR. OTTEN: And so in Cell 14, that's

9 being repurposed right now by D.C. Water, right?

10 MR. RUIZ: It's currently under D.C.

11 Water use.

12 MR. OTTEN: And you said it's

13 retaining a volume of water I think at the last

14 hearing?

15 MR. RUIZ: I didn't testify to that.

16 MR. OTTEN: Okay. When you visited

17 the site and you looked at Cell 14, what kind of

18 intervention did you see D.C. Water do to that

19 cell to prevent it from shifting from yellow to

20 orange or collapsing?

21 MR. RUIZ: D.C. Water has not provided

22 any stabilization to Cell 14. It's in its

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1 current state as when it was constructed.

2 MR. OTTEN: And do you know how

3 they've repurposed it? Have they cut into it?

4 Have they brought pipes into it? How are they

5 repurposing it?

6 MR. RUIZ: It's my understanding

7 they're using it as a temporary storm water

8 retention structure.

9 MR. OTTEN: Okay. Did you actually

10 see, go into the cell?

11 MR. RUIZ: Yes.

12 MR. OTTEN: And you saw water being

13 retained there at the time?

14 MR. RUIZ: At the time I've been here,

15 I have not seen water in it, but it's my

16 understanding that water has been in there.

17 MR. OTTEN: Okay, presumably after a

18 rain event?

19 MR. RUIZ: A large rain event.

20 MR. OTTEN: And so they had to -- they

21 had to bring pipes or something into the cell to

22 capture that?

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1 MR. RUIZ: Correct.

2 MR. OTTEN: Okay. So if your

3 testimony is that the yellow suddenly collapsed

4 or shifted to orange or really loses its

5 structural integrity at any time because it's a

6 reinforced concrete, why do you think D.C. Water

7 didn't reinforce it and is using it actively?

8 MR. RUIZ: Because they're using it as

9 it always was intended to be used, as a retention

10 of water. It's an industrial structure that's

11 being used as an industrial structure.

12 MR. OTTEN: But nonetheless, it is

13 reinforced concrete that can collapse suddenly?

14 MR. RUIZ: No, unreinforced concrete.

15 MR. OTTEN: I'm sorry, unreinforced

16 concrete. So they are knowingly using this

17 potentially that at any time it could collapse?

18 MR. RUIZ: Yes.

19 MR. OTTEN: And but some kind of

20 construction had to be done if water into the

21 cell? Like some cutting of the -- did you see

22 any cuts in the side of the cell or the

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1 integrity?

2 MS. BROWN: Objection. I think this

3 is going far beyond what his direct testimony

4 was, and he doesn't have knowledge as to what

5 D.C. Water has done.

6 MR. BYRNE: Yeah. I think you can

7 just answer the question as to whether you saw

8 pipes cut into the cell or anything.

9 MR. RUIZ: I would say yes, I saw what

10 appeared to be a new pipe cut into the floor.

11 MR. OTTEN: Into the floor? Okay.

12 And you understand they're using that through

13 2022?

14 MR. RUIZ: That's what's been stated.

15 MR. OTTEN: Do you know when it went

16 online?

17 MR. RUIZ: Under D.C. Water use? No,

18 I do not.

19 MR. OTTEN: Okay. So if things are so

20 unsteady with the reinforced concrete as you --

21 unreinforced concrete as you testified, why would

22 preserving Cell 28 make more sense than let's say

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1 Cell 17? So Cell 28 being the cell that has

2 Tiber Creek running under it and it's already

3 compromised, versus Cell 17, which is

4 structurally sound?

5 MR. RUIZ: Yeah. So what I testified

6 to was that the conditions can change and what I

7 specifically stated in relation to the green

8 cells that you're referencing is that while the

9 green cells are uncompromised today, it's a

10 sensitive structure that anything we can do can

11 compromise those to some degree later.

12 The conditions that you see in the

13 worst off cells would be created if you were to

14 remove the gates themselves.

15 MR. OTTEN: If you were to remove,

16 okay. So let me follow up on that. But Cell 28,

17 you're only saving half of it, so you're

18 basically cutting it in half. You're not just

19 cutting off the adjacent cell. You're cutting

20 it in half. Doesn't that -- won't that

21 destabilize it?

22 MR. RUIZ: Well as we said, there are

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1 measures you can do to stabilize it, and that's

2 what we would be doing.

3 MR. OTTEN: But wouldn't those

4 measures be more expensive, more intervention

5 than one of the more structurally sound cells?

6 MR. RUIZ: I'm not a cost estimator,

7 so I don't know the exact cost.

8 MR. OTTEN: But intervention, in terms

9 of physical intervention?

10 MR. RUIZ: We would have to intervene

11 in both. We'd have to stabilize both.

12 MR. OTTEN: But it's a different

13 level, right?

14 MR. RUIZ: No, it's the same.

15 MR. THAKKAR: I'd like to provide some

16 clarification. So Mr. Ruiz's role is to advise

17 and share his professional opinion with regard to

18 these cells. I want to make something very clear

19 about all of these cells, and that is that when

20 you're dealing with public safety, that is why

21 you keep hearing him say that intervention for

22 various cells would all be the same, because

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1 these cells, none of the cells were made to be

2 inhabited by humans.

3 So when you repurpose them to be part

4 of a site that will be inhabited by humans and be

5 used for various different functions, it has to

6 be a very significant level of intervention, just

7 to make them safe.

8 So I want to be clear that regardless

9 of the colors that Mr. Otten is looking at, the

10 cost, the methods and everything we do to

11 rehabilitate and preserve these cells would

12 largely be the same, because all of them are

13 unfit to be used now.

14 So it really doesn't make a big

15 difference with regard to Cell 28 or 14 or

16 whatever it is. You'd have to take extraordinary

17 measures to ensure that the public is safe.

18 MR. OTTEN: Mr. Thakkar, but isn't it

19 the case that some of these cells you could build

20 three story buildings? Currently, the green

21 ones?

22 MR. BYRNE: I don't think -- so I

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1 don't think that Mr. Thakkar testified about

2 anything about that.

3 MR. OTTEN: He just testified that

4 every cell has to go under some kind of

5 intervention.

6 MR. BYRNE: He did.

7 MR. OTTEN: And so and some -- there

8 are levels of intervention that are going to be

9 different, based on the structural integrity of

10 the cell.

11 MR. BYRNE: Well, I think he just

12 testified that that was not the case.

13 MR. RUIZ: I did, and I'll say that

14 again.

15 MR. OTTEN: Where is the evidence to

16 that? Do you have --

17 MR. BYRNE: He just testified to it.

18 MR. OTTEN: Right. But your expert is

19 not saying that.

20 MR. BYRNE: He did say that, he did

21 say that.

22 MR. THAKKAR: My expert actually said

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1 exactly that.

2 MR. RUIZ: The page you're looking at,

3 Mr. Otten, doesn't talk about different colors --

4 MR. OTTEN: I appreciate that. Then

5 why would D.C. Water not do the exact same safety

6 precautions you're describing right now? Could

7 not the cell collapse under the water projects

8 right now, with people walking by it and be

9 injured by it?

10 MR. RUIZ: That's correct. As I said,

11 it's an industrial site used for industrial use,

12 and is not meant for human occupancy. There's an

13 understanding that you're taking no risk.

14 MR. BYRNE: The public is not allowed

15 to go anywhere near --

16 MR. RUIZ: Correct. It's not publicly

17 accessible.

18 MR. OTTEN: But as I understand it,

19 isn't it true that this project will not have any

20 human habitancy in the underground cells?

21 MR. BYRNE: Which project?

22 MR. OTTEN: The project being proposed

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1 right now.

2 MR. BYRNE: Right, right.

3 MR. OTTEN: So what is the -- why the

4 difference in the level of intervention between

5 D.C. Water's project as an industrial site?

6 MR. RUIZ: So as I said, it's not

7 meant for public assembly, public occupancy.

8 This project proposes allowing people to walk on

9 top of Filter 28 and as I testified, Filter 14 is

10 possible. We don't know because we have not

11 taken over Filter 14.

12 But in order to occupy the top side,

13 we need to reinforce the top side as well as

14 stabilize the structure to allow that kind of

15 use.

16 MR. OTTEN: And you testify on page 18

17 of the printed document that the overbuild is

18 structurally feasible; correct?

19 MR. RUIZ: Correct.

20 MR. OTTEN: And you're saying it

21 requires significant intervention. But you just

22 testified that that significant intervention

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1 would be the same as some of the other uses or

2 no?

3 MR. RUIZ: I said that for, depending

4 on the scenario, yes there would be the same

5 intervention and I note that the overbuild in

6 that slide would require additional intervention

7 in that you need to put something through the

8 structure to support the overbuild.

9 MR. OTTEN: And then you say that when

10 you're piercing the structure, you further

11 destabilize the integrity of it?

12 MR. RUIZ: That's correct.

13 MR. OTTEN: And so by your testimony

14 that D.C. Water has pierced it with a pipe,

15 wouldn't that seem logical?

16 MR. RUIZ: Again, I don't know exactly

17 what they did, so I don't want to proffer as to

18 what could have happened or what could happen.

19 MR. OTTEN: Okay. Just looking at the

20 overbuild again, you're saying that the -- if I'm

21 not mistaken, that the historic integrity of the

22 site of those vaults are significantly reduced if

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1 you want to do an overbuild, because you're

2 piercing through it and you have to build up some

3 kind of structure that would kind of clutter the

4 vaults and what-not, right?

5 MR. RUIZ: Well that's correct. What

6 I said is you already have columns base of 14

7 feet on center, and putting additional columns in

8 it would create a sea of columns and thus you

9 would ruin the historic value of the structure.

10 MR. OTTEN: But it's fair to say just

11 tearing out the vaults and throwing it in the

12 trash is also ruining the historic value of the

13 structure, is it not?

14 MR. BYRNE: That's not really a

15 question. Obviously it is, right? I mean they

16 admit that it is.

17 MR. OTTEN: Okay.

18 MR. BYRNE: So Mr. Otten, I'm going to

19 give you 15 more minutes.

20 MR. OTTEN: Okay. That's all I need.

21 MR. BYRNE: Good.

22 (Pause.)

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1 MR. OTTEN: Mr. Weers, thank you for

2 being here. So just to refresh going back, you

3 are managing the medical complex or medical

4 facilities of this project?

5 MR. WEERS: My name is Adam Weers. I

6 work for Trammell Crow Company. We're the

7 developers of the health care facilities.

8 MR. OTTEN: And where in the slide of

9 the alternate plans did you get involved? What

10 year?

11 MR. WEERS: 2008.

12 MR. OTTEN: Okay, and you testified at

13 the July 14th meeting about older buildings not

14 being able to adequately serve a medical purpose.

15 Can you explain that for me again? What is it

16 about older buildings?

17 MR. WEERS: So that's not what I

18 testified. What I testified to was the age of

19 the health care infrastructure of the District,

20 and I testified to the District's health care

21 infrastructure per capita, and the fact that it

22 is lower than any other major metropolitan area

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1 in the country.

2 MR. OTTEN: In terms of the equity of

3 the distribution of the medical facilities in the

4 City, have you seen the medical facilities map

5 from DMPED or anybody from the City, the

6 distribution of medical facilities around the

7 City?

8 MR. WEERS: I don't know what map

9 you're talking about.

10 MR. OTTEN: Okay. But nobody from the

11 City has ever shown you a map of the medical

12 facilities around the City?

13 MR. WEERS: I've seen many maps of the

14 medical facilities around the City.

15 MR. OTTEN: And would you say that --

16 did you look at Ward 7 at all in terms of the

17 equity in distribution of medical facilities?

18 MS. BROWN: I'm going to object. It

19 goes beyond his testimony.

20 MR. BYRNE: Sustained.

21 MR. OTTEN: Excuse me, but Mr. Weers

22 testified to the benefit of concentrating the

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1 medical facilities, and there is a comprehensive

2 plan that talks about equitable distribution of

3 these facilities. So that's where my line of

4 questioning is going.

5 MR. BYRNE: Right. But I mean I

6 understand where it's a line of argument against

7 the benefits of the project. But I don't really

8 understand what you expect to get from the

9 witness.

10 MR. OTTEN: To see how Trammel Crow

11 has understood where they can -- how they can

12 both best benefit the City, in terms of placing a

13 medical site.

14 MR. WEERS: So this is what I would

15 say. I reject the notion that somehow the

16 development of health care facilities at McMillan

17 runs counter to the idea of dispersion of health

18 care facilities throughout the City, and I think

19 that two of the potential users of these health

20 care facilities, MedStar and Children's, operate

21 throughout the City.

22 So just because they're developing new

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1 facilities at McMillan does not somehow preclude

2 them from developing or opening other facilities

3 throughout the facility, and in fact MedStar and

4 Children's operate in several wards throughout

5 the City.

6 MR. OTTEN: Do you -- but don't you

7 find it that Ward 5 and the residents around the

8 park already have access to robust medical

9 facilities, that this is kind of piling on?

10 MR. WEERS: I'm sorry. What's your

11 question?

12 MR. OTTEN: Are you -- did you do any

13 analysis of the access of Ward 5 residents and

14 Ward 1 residents living around the park to the

15 already robust medical facilities there?

16 MR. WEERS: No sir.

17 MR. OTTEN: And did you do any

18 citywide analysis of access to medical facilities

19 generally?

20 MR. WEERS: No sir.

21 MR. OTTEN: Has anybody from the City

22 talked with you about the climate change maps in

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1 the city or any of the flooding maps in the city?

2 MR. WEERS: No sir.

3 MR. OTTEN: And as a manager of a

4 hospital, a medical facilities complex, would it

5 be a surprise to you that one of the city

6 policies would suggest not to put the medical

7 facilities in the middle of a flood plain?

8 MR. WEERS: I don't understand your

9 question. Please clarify.

10 MR. OTTEN: I guess it goes to -- so

11 the benefit of placing the medical facilities in

12 this site, were you made aware that this site is

13 in the middle of an internal flood plain in the

14 District?

15 MR. WEERS: No sir.

16 MR. OTTEN: Okay. Did anybody from

17 the City or other members of the applicant team

18 explain the volume of traffic that this project

19 will generate?

20 MS. BROWN: Objection.

21 MR. BYRNE: Sustained.

22 MR. OTTEN: It has to do with

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1 emergency response time, Mr. Byrne. I don't know

2 if you considered that or not, and it could be an

3 adverse impact to that hospital. If the site is

4 generating, as Mr. Dettman testified, significant

5 volumes of traffic, wouldn't that impact

6 emergency response time or response time to the

7 facilities that Mr. Weers is --

8 MR. BYRNE: I just think it's too far

9 afield from the Mayor's Agent's inquiry.

10 MR. OTTEN: Okay. I don't know who

11 this is best for either Mr. Bogorad or you, Mr.

12 Weers, but there was a statement, I think it was

13 made either in writing or at the last hearing,

14 that there's a certain amount of space that if

15 you didn't have an extra floor of the medical

16 facilities, that it would prevent the building

17 from being built. Do I recall that right? Like

18 100 and some-odd thousand square feet?

19 MR. WEERS: What I testified to last

20 time was the potential for saving additional

21 cells on Parcel 1, the effect it would have on

22 the Parcel 1 facilities and the reduction that

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1 was a lot larger than what you're suggesting,

2 that would cause the project to not go forward.

3 MR. OTTEN: So in other words, if one

4 of the extra filtered beds is saved on the

5 northern parcel, your property would not be --

6 your medical facility wouldn't be able to make

7 money or be profitable?

8 MR. WEERS: Our plan would not go

9 forward.

10 MR. OTTEN: And given how close that

11 is, I mean it seems like it's not a significant

12 amount of volume. Maybe I'm wrong.

13 MR. WEERS: It was one full tower.

14 It's about half the density.

15 MR. OTTEN: One full tower would be

16 taken away? How does that square with the math,

17 just looking at -- if you can go to page --

18 MR. WEERS: So I had a slide. It's

19 probably in the printout. So I think it's number

20 100 for you, maybe 102. Oh, I'm sorry. It's 181

21 in the electronic, so maybe 182 in yours.

22 MR. OTTEN: 182? So I see now. So

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1 this is the additional cell preservation on

2 Parcel 1?

3 MR. WEERS: Yes sir.

4 MR. OTTEN: And so this is

5 contemplating the potential alternative of saving

6 an additional cell. It has to be Cell 13?

7 MR. WEERS: Yes sir.

8 MR. OTTEN: Was there any analysis

9 done of let's say a smaller portion of that

10 building, like the Cell 11, where it would take a

11 smaller portion of the building away?

12 MR. WEERS: So there's a five level

13 underground parking garage underneath that.

14 Taking or preserving Cell 11 would be just as

15 catastrophic.

16 MR. OTTEN: But I mean if you're just

17 showing the cells anyway to build a parking

18 garage, right? That's what's happening. You're

19 removing the cell and then putting a parking

20 garage in, couldn't that be done under 13 or 12?

21 MR. WEERS: You said again, the

22 parking garage goes from what you see as Cell 10

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1 all the way over to the end of Cell 13. It's

2 under the entire footprint of the Parcel 1

3 facility is the garage, the whole thing.

4 MR. OTTEN: How many parking spaces is

5 that?

6 MR. WEERS: 1,800. I don't have the

7 number off the top of my head.

8 MR. OTTEN: So do you have -- did you

9 do any alternative study of reconfiguring the

10 parking lot maybe with two entrances or anything

11 like that? You just did this one alternative

12 Cell 13?

13 MR. WEERS: We did just do this one,

14 alternative Cell 13. However, the number of

15 entrances to the parking garage is not going to

16 affect this analysis. The size of the parking

17 garage and the fact that it spans the entire

18 facility. I mean it's going from 1st Street all

19 the way to the edge of Cell 14. So no.

20 MR. OTTEN: And are -- do you

21 anticipate ambulances coming to this site?

22 MR. WEERS: It's possible.

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1 MR. OTTEN: Are you at all worried as

2 a medical facilities manager about the emergency

3 response time or the access of ambulances given

4 the traffic that's there now?

5 MR. WEERS: So for clarification

6 purposes, I'm not a medical facilities manager,

7 and no.

8 MR. OTTEN: Okay. What are you again?

9 I'm sorry.

10 MR. WEERS: The developer of the

11 health care facilities.

12 MR. OTTEN: Okay, as a developer. So

13 you would want -- you're seeking somebody to fill

14 that as a tenant, right?

15 MR. WEERS: Yes sir.

16 MR. OTTEN: And did you -- in your

17 discussions with potential tenants, are you

18 talking about the existing traffic load?

19 MS. BROWN: Objection. We've covered

20 whether or not traffic is an issue here and I

21 think you ruled that we're not supposed to be

22 dealing with it.

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1 MR. BYRNE: I appreciate that, but I

2 will ask -- I will have him answer that question.

3 MR. WEERS: As the design process goes

4 along, absolutely.

5 MR. OTTEN: And what happens if the

6 tenant says there's too much traffic here; we

7 can't really readily operate this project?

8 MR. WEERS: I can't speculate on

9 things that haven't happened.

10 MR. OTTEN: But you've speculated here

11 in doing analysis of taking a cell away?

12 MR. WEERS: We spent a good amount of

13 time thinking about design alternatives. That's

14 different than just pulling some random what if

15 out of the sky.

16 MR. OTTEN: I see one alternative

17 here. Do you have any others?

18 MR. WEERS: No sir.

19 MR. OTTEN: Okay. Last couple of

20 questions, Mr. Weers.

21 MR. BYRNE: Two minutes.

22 MR. OTTEN: Okay. This is for Mr.

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1 Bogorad from RCLC, is that it?

2 MR. BOGORAD: RCLCo.

3 MS. BROWN: And his name is Mr.

4 Bogorad.

5 MR. OTTEN: Bogorad, excuse me. Thank

6 you. You talked about in your testimony the

7 fiscal, the positive fiscal benefits from the

8 project; correct?

9 MR. BOGORAD: Yes.

10 MR. OTTEN: Did you look at any of the

11 negative impacts from the project? Like negative

12 fiscal. For example --

13 MR. BOGORAD: We looked at the costs

14 and the revenues, and the net impact was very

15 positive.

16 MR. OTTEN: So did you look at the

17 fact that basically a small village is being

18 built, how the oversaturation of schools or the

19 air quality impacts or emergency response time,

20 that could actually reduce property values in the

21 surrounding area, the economic values of the

22 area?

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1 MS. BROWN: Objection. He didn't

2 testify to that.

3 MR. OTTEN: You testified to the

4 positive benefits. I'm asking if you testified

5 to the negative or looked at --

6 (Simultaneous speaking.)

7 MR. BYRNE: What negatives did you

8 look at?

9 MR. BOGORAD: We looked -- this was a

10 cost and revenues analysis. So we looked at the

11 revenues, all of the taxes that would be

12 generated by the project, and we looked at the

13 costs including school costs and other operating

14 costs.

15 As I talked, as I discussed in some

16 length in my testimony and especially in the

17 cross-examination last time, the costs are based

18 on allocation, which are probably very, you know,

19 the analysis is very loaded towards making those

20 higher than they actually are. It's a very

21 conservative approach from the perspective of the

22 net impact.

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1 And so the net impact is still very

2 substantial, even after taking account very

3 generously of what those costs might be. We did

4 not look at non-economic costs or anything of the

5 sort that you just mentioned.

6 MR. OTTEN: How about like health

7 costs to people who live in the area?

8 MR. BOGORAD: That was not part of an

9 economic analysis, no.

10 MR. OTTEN: All right. That's all I

11 have, thank you.

12 MR. BYRNE: All right, thank you.

13 Well that concludes the cross-examination. Oh,

14 yes.

15 MS. FERSTER: I have one question

16 based on this new document, because there are

17 some clarification that I would like to make for

18 the record.

19 MR. BYRNE: Okay.

20 MS. FERSTER: So for whoever prepared

21 this document, this is simply a clarification.

22 It notes that there are 655 total units of

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1 housing that are being provided on the site, and

2 you give some different numbers in the slides

3 that are provided. I'm looking at on the paper

4 copy of the slides, page 75 shows 677 total units

5 and then also on page 52 of the slides, it uses a

6 number that adds up to 660 units. So can you

7 clarify how many units of housing are going to be

8 provided, because now we have three numbers,

9 three different numbers?

10 MR. RUIZ: Give us an opportunity to

11 look into that, but I would gather it is because

12 as we were going through this process, the exact

13 number of units. The townhouses are set at 146

14 units.

15 The exact number of units in the

16 second multi-family building on the west side,

17 the western of the two multi-family buildings,

18 that was going through the beauty process, and

19 the exact number of units in that project was not

20 set and maybe isn't even set. We'll talk amongst

21 us and get back to you.

22 MS. FERSTER: Okay. I would

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1 appreciate, given the colloquy that went by

2 earlier, if you could provide an exact time when

3 you would get back to us?

4 MR. RUIZ: We will talk amongst

5 ourselves and provide it by the end of day today.

6 MS. FERSTER: If you could provide it

7 before our surrebuttal, that would be important.

8 MR. THAKKAR: We can try. We're not

9 sure what difference it makes in terms of the

10 case. But we will try our best.

11 MS. FERSTER: Okay, and then one more

12 follow-up question. Given that at this point the

13 housing numbers are in flux due to the fact that

14 I guess Parcel 2 is as yet been approved as a

15 final PUD, how much fluctuation do you

16 anticipate in these housing numbers?

17 MR. THAKKAR: We anticipate them to be

18 very -- the three numbers you read off are

19 within, I guess, 20 units of each other. So

20 that's probably the range. But we, I couldn't

21 give you a certain answer beyond that we are in

22 the general range of the overall number of units

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1 that will be developed in the site.

2 MS. FERSTER: Okay, thank you.

3 MR. BYRNE: We could say, for purposes

4 of the proceeding, that we're talking about at

5 least 655 units?

6 MR. THAKKAR: That would be fine.

7 MR. BYRNE: You're comfortable with

8 that?

9 MR. THAKKAR: That would be fine.

10 Thank you.

11 MR. BYRNE: Okay, very good. So we

12 could talk about how to proceed. I would be

13 inclined -- so the next step would be for them to

14 put on their case. I'd be inclined to do an hour

15 of that before lunch, if that doesn't drive

16 people crazy, and then take a break for lunch and

17 carry on.

18 I've been informed that the Zoning

19 Commission is meeting in this room tonight, so we

20 need to end at around five o'clock. So that's

21 the terrain of what we're doing.

22 MS. BROWN: And just a clarification.

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1 For cross-examination, will we be doing that

2 individually after each party opponent makes

3 their case or will it be done collectively at one

4 point.

5 MR. BYRNE: Good question, good

6 question. So Ms. Ferster, could we discuss that

7 question so they can plan? How many witnesses do

8 you have?

9 MS. FERSTER: It would be nine

10 witnesses, and I believe D.C. for Reasonable

11 Development has several.

12 MR. BYRNE: You have how many?

13 MS. FERSTER: Nine witnesses.

14 MR. BYRNE: So what do you think?

15 Should they, can they -- so I would guess given

16 your concern about your witnesses who are

17 volunteers and what-not not wanting to be here

18 indefinitely, that the cross-examination would

19 occur after each witness?

20 MS. FERSTER: That's fine with me.

21 Whatever they prefer.

22 MS. BROWN: I think our more general

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1 question, I think we would save our questions for

2 all of their witnesses at the end, and then Mr.

3 Otten's, I guess, would be cross-examined

4 independently. I guess that was part of the

5 question. We have Friends of McMillan Park, then

6 Mr. Otten's case, then cross-examination.

7 MR. BYRNE: No. I think what we're

8 saying is examination --

9 MS. BROWN: Okay. Do it individually?

10 MR. BYRNE: --of each witness so they

11 can go, if that's agreeable. I think that's --

12 MS. FERSTER: Our witnesses need to

13 stay, so our witnesses have to stay for the

14 whole, for the whole hearing because they need to

15 hear rebuttal. Unless we're not going to do

16 rebuttal today.

17 MR. BYRNE: Well, good heavens. What

18 are we going to do today? I mean we'll see how

19 long it takes for you to do your nine witnesses,

20 and for Mr. Otten to do however many witnesses he

21 has. But so but personally, I found this

22 procedure to be awkward, and I would prefer to

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1 hear cross-examination witness by witness myself,

2 unless there's some objection to doing that.

3 Okay. That's what we'll do. That's

4 what we'll do. So Ms. Ferster, if you're ready

5 you can put on your witnesses.

6 MS. FERSTER: Sure.

7 (Pause.)

8 MS. FERSTER: While we're waiting, you

9 know, we have a request for a telephone link for

10 Ann Saleem (phonetic), who's going to be

11 testifying telephonically.

12 MS. BROWN: And I object.

13 MR. BYRNE: Okay.

14 MS. FERSTER: We were told at the last

15 proceeding that she could be hooked up

16 telephonically by Mr. Callcott.

17 MR. BYRNE: If you're talking about

18 physically, it could be done, yeah.

19 MS. BROWN: I object. Witnesses are

20 supposed to be in person and it's partly to make

21 sure that it's not so we just see their words on

22 a piece of paper but we hear their demeanor.

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1 While that's possible through the telephone, we

2 have to see the witness' reaction, the physical

3 demeanor and that's part of the process of having

4 a live witness.

5 The regulations only allow for

6 telephonic witnesses under unusual circumstances.

7 One of those is they have to reside in a

8 different state. Ms. Saleem is a resident of the

9 District of Columbia, so that exception would not

10 apply to her.

11 MR. BYRNE: Okay. Can you cite the

12 regulation for me?

13 MS. BROWN: It is not obviously a

14 Mayor's Agent regulation. It is from the Office

15 of Administrative Hearings, and it is Title 1,

16 Section 2821.8, and I can hand you a copy if you

17 would like.

18 MS. FERSTER: Could you actually read

19 that again?

20 MS. BROWN: I'll hand you a copy.

21 MS. FERSTER: Okay. Ann Saleem, as

22 you know, because we requested a delay.

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1 MR. BYRNE: She's on vacation or

2 something.

3 MS. FERSTER: She spends the summer in

4 New Hampshire. She's due back in October.

5 That's why we requested a delay through the

6 beginning of October, because she does not spend

7 the summer in the District of Columbia, lucky

8 her.

9 MR. BYRNE: Lucky her.

10 MS. FERSTER: So I don't see that an

11 OAH regulation is pertinent here, A. But if you

12 wanted to follow it, it seems like you would have

13 discretion to allow Ms. Saleem to testify

14 earlier. We've been on record consistently as

15 wanting Ms. Saleem to testify, and make sure that

16 the telephone hookup could be available so that

17 she could testify.

18 In terms of her demeanor, well you

19 know, she's available for cross-examination, and

20 her written testimony has been in the record for

21 a long time actually. We submitted it earlier.

22 So she has some verbal testimony that she would

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1 like to provide. She has been a witness here

2 before. She's been qualified as an expert. I

3 think everybody's pretty familiar with her

4 demeanor at this point.

5 MR. BYRNE: Yes.

6 MS. FERSTER: I don't think that her

7 physical presence is necessary.

8 MR. BYRNE: Okay. So I'm going to

9 allow it. I'm going to allow it under the

10 circumstances, and yeah. So we'll proceed with

11 that. I don't know whether you have to talk to

12 Mr. Callcott about anything that needs to happen,

13 and maybe set a time.

14 I recognize that there could be

15 issues. I think it's less true with an expert

16 witness than with a fact witness, and plainly the

17 question of her credibility, if you will, is

18 affected by the fact that I can't see her face,

19 and I recognize that.

20 It cuts both ways. It's undesirable,

21 but I think given -- given the amount of concern

22 that Ms. Ferster has had all along in having this

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1 witness testify, we'll let her go forward.

2 And I don't see -- I don't see it

3 being -- I don't -- in this particular it doesn't

4 seem -- it seems to me to be okay, so we'll do

5 it. Okay.

6 (Pause.)

7 MS. FERSTER: -- as my expert, so I to

8 wait for Ms. Brown to come.

9 MR. BYRNE: Okay. You gave me two

10 copies of Mr. Hansen's CV, in case somebody

11 doesn't have one.

12 MS. FERSTER: Okay. I'm going to

13 start on my far right. Brett Williams. She is

14 -- her CV is actually attached to her testimony.

15 She is going to be testifying on the issue of

16 gentrification and displacement, and the impacts

17 of that on affordable housing, and she has

18 previously been qualified by the Zoning

19 Commission as an expert on gentrification and

20 displacement. So I offer her as an expert.

21 MS. BROWN: I don't have an objection

22 to Carolyn Brown for Vision McMillan Partners. I

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1 don't have an objection to her qualifications as

2 an expert. I do have an objection to the scope

3 of the testimony with regard to gentrification

4 issues, because it goes beyond the scope of the

5 hearing purposes.

6 MS. FERSTER: Just to be clear, her

7 testimony goes exactly to the issue of whether

8 affordable housing in this case is a benefit of

9 special merit, or whether it is simply mitigation

10 for the impacts of displacement and

11 gentrification resulting from this project.

12 MR. BYRNE: Okay, that's fine.

13 MS. FERSTER: Okay. So I think we'll

14 deal with all our qualifications at this point.

15 So our next witness would be Stephen Hansen, and

16 his resume is here. I don't --

17 MR. BYRNE: Yes, I have them.

18 MS. FERSTER: I don't believe he has

19 been previously qualified as an expert before the

20 Mayor's Agent. But we are seeking to qualify him

21 based on his 30 years of experience in historic

22 preservation, cultural resource management,

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1 etcetera, and a professional career in historic

2 preservation beginning from 1985, working for the

3 National Park Service as an expert in historic

4 preservation, as Ms. Ann Saleem is.

5 MR. BYRNE: So he's an expert in

6 historic preservation?

7 MS. FERSTER: That's correct.

8 MR. BYRNE: Okay.

9 MS. BROWN: I'm sorry, where are his

10 qualifications?

11 MS. FERSTER: His CV is in one of the

12 piles over there.

13 MS. BROWN: Thank you.

14 (Pause.)

15 MS. BROWN: I'd like clarification if

16 I could. If Mr. Hansen, you have ever worked on a

17 large scale redevelopment project in the District

18 of Columbia, where new development was also going

19 to be incorporated into the project?

20 MR. HANSEN: Yes, I have.

21 MS. BROWN: Could you -- I don't see

22 any on your resume?

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1 MR. HANSEN: It would be the --

2 probably the Wright Development Project, Spring

3 Valley Shopping Center.

4 MS. BROWN: So you were on the

5 development team?

6 MR. HANSEN: Oh on the team, no. I

7 was working with the ANC in the community.

8 MS. BROWN: Have you worked on

9 anything else in the District of Columbia with

10 large-scale redevelopment incorporating historic

11 structures?

12 MR. HANSEN: For or against?

13 MS. BROWN: Either.

14 MR. HANSEN: Yes.

15 MS. BROWN: Name -- could you name

16 something other than the Spring Valley?

17 MR. HANSEN: Gosh. There's the Church

18 Street, St. Thomas Church project.

19 MS. BROWN: So two projects in the

20 District?

21 MR. HANSEN: You're going to have to

22 define "large."

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1 MS. BROWN: Well, from what you've

2 listed on your resume, most of the restoration

3 projects have dealt with windows, storefronts --

4 MR. HANSEN: Oh, physical restoration.

5 MS. BROWN: Lobby restoration and

6 rehabilitation, and have you done any projects

7 that have involved the retention of whole

8 buildings incorporated into new development?

9 MR. HANSEN: No. The hands-on

10 preservation work has been more small scale. The

11 larger work has been on consulting on or against

12 development projects.

13 MS. BROWN: Okay. So I'm fine with

14 his qualifications as an expert, but I think the

15 scope of his expertise is limited. So I think it

16 just goes to the quality of the testimony he's

17 going to provide.

18 MS. FERSTER: Can we redirect on that

19 point? You did -- you said that you have some

20 experience in large-scale projects as a

21 consultant, and in the opposition. Can you

22 describe that experience?

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1 MR. HANSEN: Well, that would be the

2 Wright Development and the Spring Valley Shopping

3 Center. Those were large scale.

4 MS. FERSTER: Uh-huh, okay.

5 MR. BYRNE: So I understand you

6 testified in opposition to it before the HPRB, is

7 that right?

8 MR. HANSEN: Well, I consulted with

9 the ANC and the community organizations --

10 (Simultaneous speaking.)

11 MR. HANSEN: -- of the project and its

12 compatibility with the historic buildings around

13 it.

14 MR. BYRNE: Okay.

15 MS. FERSTER: Okay. Our third expert

16 at the table here today is Brook Hill, who's a

17 lawyer with the Washington Lawyers Committee for

18 Civil Rights and Urban Affairs, and I'm going to

19 ask him, since he does not have his CV here, I'm

20 going to ask him to briefly describe his

21 expertise in the area of fair housing and

22 gentrification, which is where we want to qualify

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1 him.

2 MR. BYRNE: Mr. Hill?

3 MS. HILL: Hi. So I've worked on a

4 variety of housing-related issues for the past

5 nearly 20 years, including real estate finance,

6 some policy work, community organizing and now as

7 a lawyer at the Washington Lawyers Committee for

8 Civil Rights, I am an equal justice works fellow

9 there, and my project specifically focuses on

10 working with tenant groups living in properties

11 that are timing out of subsidy, where in

12 gentrifying neighborhoods, to ensure compliance

13 with fair housing laws.

14 I've also worked with my colleagues at

15 the Lawyers Committee to challenge the District's

16 certification of its Consolidated Plan. That

17 resulted in a letter sent by HUD to the Mayor,

18 questioning why the various items that were

19 listed in the analysis of impediments in 2012

20 were not raised in the Consolidated Plan.

21 At the Lawyers Committee, we work on

22 a wide variety of fair housing issues and a part

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1 of the fair housing project and have been for

2 nearly four years, one year as a lawyer and three

3 years as a non-lawyer.

4 MR. BYRNE: The proffer is expertise

5 in fair housing?

6 MS. FERSTER: Fair housing and

7 gentrification.

8 MS. BROWN: I don't have any objection

9 to the qualifications. But again, the scope of

10 it is beyond what is required for this project,

11 since the sole test is whether or not we exceed

12 the legally required inclusionary zoning amount,

13 and fair housing and gentrification don't enter

14 into the equation.

15 MR. BYRNE: Okay. Well we -- that's

16 -- I understand that that is going to be a field

17 of contention as we move forward here, and we'll

18 sort of sort it out as we go.

19 MS. FERSTER: So are you --

20 MR. BYRNE: I accept them, yes.

21 MS. FERSTER: Okay, all the experts

22 have been accepted. Great. So let's start --

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1 we're going to actually start with Brook Williams

2 then Brett -- okay. So we'll start with you, and

3 then end with Stephen for this panel.

4 MR. HILL: Okay. So thank you very

5 much for the opportunity to testify today on

6 behalf of the Washington Lawyers Committee for

7 Civil Rights and Urban Affairs. The Committee

8 was founded in 1968 to address civil rights

9 violations, racial injustice and to fight poverty

10 in our community through litigation and advocacy.

11 Among the areas on which the Committee works is

12 --

13 MR. BYRNE: Sorry. I neglected

14 something. Because we have new witnesses, you

15 need to be sworn. Thank you. So we ask all the

16 witnesses to do this, so if you can just raise

17 your right hand please? We'd just ask you do you

18 promise to tell the -- oh yes, all the witnesses.

19 MS. FERSTER: I have to do that again,

20 because some of our witnesses are on the way, but

21 yes.

22 MR. BYRNE: Okay but now at least they

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1 get to see who's --- okay.

2 (Witnesses sworn.)

3 MR. BYRNE: Thank you, thank you.

4 Please proceed Mr. Hill.

5 MR. HILL: All right. I'll just pick

6 up where I left off. This testimony will address

7 whether the Mayor's Agent should consider the

8 affordable housing units created by this project

9 to qualify it for special merit within the

10 meaning of D.C. Code Section 6-1102.

11 I contend that the affordable housing

12 created by this project should not be considered

13 to give it special merit because cost will

14 exclude most African-American households, and the

15 effects of the project will be to further exclude

16 African-Americans from the neighborhood.

17 Within the meaning of D.C. Code

18 Section 6-1102, special merit is defined by the

19 statute as a plan or building having significant

20 benefits to the District of Columbia or to the

21 community by virtue of exemplary architecture,

22 special features of land planning or social or

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1 other benefits having a high priority for

2 community services.

3 The duty to affirmatively further fair

4 housing are created by the Fair Housing Act

5 requires that a jurisdiction review and assess

6 both public and private conditions that affect

7 fair housing choice for all protected classes.

8 Any action, omission or decision taken because of

9 a protected trait or that has the effect of

10 restricting housing choice on the basis of a

11 protected trait should be considered an

12 impediment to fair housing.

13 In its most recent analysis of

14 impediments to fair housing, income and equality

15 along racial lines, coupled with the high cost of

16 housing and the lack of any fair housing analysis

17 in the approval of projects like this, were

18 identified as impediments to fair housing.

19 D.C.'s well-documented affordable

20 housing crisis disproportionately impacts

21 African-American households because of income

22 inequality. In D.C., the white median income is

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1 approximately $116,000, while the African-

2 American income is approximately 41,000. In zip

3 code 20002, where this project is located, the

4 disparity is slightly greater.

5 Over the last 10 to 15 years, the

6 District has lost nearly half of its affordable

7 apartments, much of that loss coming from

8 gentrifying neighborhoods in the City's core and

9 has thereby become the sixth most segregated city

10 in the nation.

11 In order to comply with its duty to

12 affirmatively further fair housing, the Mayor's

13 Agent must consider how and if this project will

14 restrict housing choice on the basis of race.

15 This requires an examination of rent levels units

16 in this project will command.

17 The majority of the District's

18 African-American households will be excluded from

19 this project because of cost. Likewise, the

20 project is likely to have the effect of excluding

21 most African-American households from the

22 surrounding neighborhoods as well. 80 percent of

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1 the units in this project will be market rate.

2 To afford rents at these levels, a household will

3 need to be earning at least $80,000 a year, well

4 within the reach of most white households, but

5 far out of reach for most African-American

6 residents.

7 The affordable units included in this

8 project will not remedy this issue, because

9 African-Americans will be excluded from these

10 units for the same reason. The majority of the

11 non-senior affordable units are affordable at 80

12 percent of Area Median Income. Area Median

13 Income is approximately 109,000 for a family of

14 four.

15 Eighty percent for this family would

16 be roughly 87,000. For a household of two, 80

17 percent of AMI is about 70,000. Given that the

18 African-American household income is about

19 41,000, most African-Americans will not be able

20 to access the 80 percent of AMI units. Even at

21 50 percent of AMI, most African-American

22 households will be excluded.

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1 Fifty percent of AMI is about 54,450

2 for a family of four and 43,500 for a household

3 of two. More than half of the City's African-

4 American households will be excluded from these

5 units as well.

6 Since the African-American median

7 income just over 30 percent of AMI, the only way

8 to ensure that a large percentage of the African-

9 American population has access to this

10 development is to include affordable units at 30

11 percent of AMI and below.

12 The affordable housing created by this

13 project is not a sufficient community benefit,

14 given the project's special merit status and

15 lacks the high priority social or other benefits

16 required by the statute. Too few affordable

17 housing units are created at deep enough

18 affordability levels to make this project

19 accessible to most African-American households.

20 Moreover, the project will likely

21 cause area rent levels to increase, such that

22 many African-American households will also

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1 eventually be excluded from other housing in the

2 neighborhood. The addition of a significant

3 number of housing units that is affordable to

4 persons living at 30 percent of AMI or below

5 should be required to earn special merit status.

6 The District of Columbia's Court of

7 Appeals has created an opportunity reconsider the

8 special merits of this project, and to suggest

9 changes that will allow the City to fulfill its

10 duty to affirmatively further fair housing with

11 respect to this project.

12 The Mayor's Agent should not consider

13 the affordable housing created by this project to

14 be a community benefit, given the project's

15 special merit because it does not create enough

16 housing at affordability levels deep enough to

17 offset the racially exclusionary consequences of

18 the project. That's all. Thank you.

19 MR. BYRNE: All right. Ms. Ferster,

20 do you have anything more you want to ask Mr.

21 Hill?

22 MS. FERSTER: No, I don't.

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1 MR. BYRNE: Okay. Ms. Brown.

2 MS. BROWN: Mr. Hill, are you aware of

3 any legal standard in the Mayor's Agent's

4 requirements that affordable housing be at 30

5 percent AMI?

6 MR. HILL: So the duty to

7 affirmatively further fair housing requires that

8 the Mayor's Agent, the Zoning Commission, the

9 Office of Planning and any other agency or actor

10 acting on behalf of the City to consider how

11 their decision will affect housing choice on the

12 City.

13 MS. BROWN: I asked are you aware of

14 a legal requirement under the statutes for the

15 Mayor's Agent and its regulations.

16 MR. HILL: So no.

17 MS. BROWN: Okay, and are you aware of

18 any standard that says that in order for a

19 project to be of special merit with respect to

20 affordable housing, it has to be at or below IZ?

21 MR. HILL: So my testimony has to do

22 with the duty to affirmatively further fair

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1 housing, and regardless of a jurisdiction's local

2 statutes, if a project operates to restrict

3 access on the basis of a protected class, making

4 a decision that would move that project forward

5 would be contrary to the City's duty to

6 affirmatively further fair housing and prevent --

7 would prevent it from giving it the special merit

8 status.

9 MS. BROWN: But it's not illegal?

10 MR. HILL: Under local law, but

11 arguably under the Fair Housing Act, which

12 supersedes local law, it could be. In fact, HUD

13 has sent a letter to the Mayor indicating that

14 its certification of the Consolidated Plan was

15 lacking in this regard.

16 So the City, Mayor's Agent and Zoning

17 Commission included, is on notice that the duty

18 to affirmatively further fair housing has to be

19 weighed in making decisions like this. This is

20 simply what my testimony hopes to point out.

21 MS. BROWN: Okay, and you mentioned in

22 your testimony you said many times "most,"

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1 "maybe," "many." But this project does not

2 exclude African-Americans, does it?

3 MR. HILL: Yes, it does. The median

4 African-American income --

5 MS. BROWN: Why?

6 MR. HILL: I said most.

7 MS. BROWN: That's not my question.

8 MR. HILL: The median is 50 percent

9 and above. So I said most, and yes.

10 MS. BROWN: So it would -- this

11 project does not exclude African-Americans?

12 MR. HILL: It does exclude most, and

13 once you get to 80 percent of AMI or 50-60

14 percent of AMI, you're getting very close to

15 being -- to completely excluding African-

16 Americans.

17 MS. BROWN: And are you also saying

18 it's the duty of this project to solve the City's

19 social housing ills?

20 MR. HILL: It's the duty of the City.

21 So it's the Mayor's Agent. You could go ahead

22 and build whatever you want to as of right on the

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1 site, and regardless of how that as of right

2 development would affect African-Americans, I

3 mean we'd have to look at the particular facts.

4 But at first blush, it doesn't seem

5 like you would run into problems because the

6 developer does not have a duty to affirmatively

7 further fair housing. But when you ask the City

8 to make a decision that furthers your project,

9 that requires the City to look at how that

10 decision will affect housing choice, and how it

11 will further its duty to affirmatively further

12 fair housing.

13 MS. BROWN: Are you aware of precedent

14 in the Mayor's Agent cases where affordable

15 housing that exceeds what is required by law has

16 been approved as special merit?

17 MS. FERSTER: I'm going to object. He

18 hasn't testified that he is aware of any historic

19 preservation cases or he's -- he's testifying

20 primarily about federal law and the obligation

21 under federal law for District of Columbia

22 agencies to consider this issue.

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1 MS. BROWN: And he did testify as to

2 what the Mayor's Agent had to consider, and I

3 wanted to test that knowledge.

4 MR. BYRNE: I'll allow the question.

5 I'll allow the question.

6 MR. HILL: Can you restate the

7 question?

8 MS. BROWN: Yes. Are you aware of any

9 other Mayor's Agent projects that have been

10 approved with affordable housing as special

11 merit, based on exceeding the requirement under

12 the local zoning and District law?

13 MS. FERSTER: That goes beyond the

14 scope of his testimony. He really is speaking to

15 disparities in terms of the effect on the

16 African-American population.

17 MS. BROWN: And the Mayor's Agent just

18 allowed my question. I restated it and now

19 you're objecting again when you were overruled.

20 MS. FERSTER: But you reframed it in

21 a different way and this is a new objection.

22 MR. BYRNE: I'll allow him to answer.

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1 Answer the question please.

2 MR. HILL: No.

3 MS. BROWN: Thank you.

4 MR. BYRNE: So Mr. Hill, as I

5 understand it, most of Friends of McMillan Park

6 would like this not be -- have fewer units built

7 on it and more park preserved, and maybe entirely

8 a park.

9 MS. FERSTER: I'm going to object to

10 your question, because that mischaracterizes my

11 client's position. My client has never made that

12 argument.

13 MR. BYRNE: All right, okay, fine.

14 Fine. If we said that this should be preserved

15 as open space, and I made -- so if I made that

16 decision, would I be violating your principle

17 because I make no housing available for African-

18 Americans?

19 MR. HILL: So you would have to look

20 at how your decision affects the duty to

21 affirmatively further fair housing. I would say

22 that, you know, just at first glance, if you were

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1 not going to be building any housing, you know,

2 the consideration becomes different.

3 Just like if you were going to be

4 demolishing housing where there might be existing

5 affordable housing, that the consideration could

6 be different. I think that this -- but in this

7 case, you're somewhere in the middle between, you

8 know, taking away and not touching on housing at

9 all.

10 MR. BYRNE: So it's interesting to

11 note that the African-American population in D.C.

12 has continued to increase through this time, and

13 I wonder if you thought about the effect of --

14 MR. HILL: Well actually that's not

15 correct. According to the Census Bureau, since

16 the year 2000 the African-American population has

17 decreased by over 30,000. It's true that the

18 population overall has increased.

19 MR. BYRNE: Oh I know. But the last

20 thing I saw suggested that in the last five

21 years, there had been an increase. So okay, fair

22 enough. Fair enough, so fair enough, fair

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1 enough, fair enough. This letter that you

2 mentioned that HUD sent to the Mayor, when was

3 that sent?

4 MR. HILL: In November. I have copies

5 of it that I can pass out if you'd like.

6 MR. BYRNE: Yeah, and has there been

7 a response from the Mayor's office as far as you

8 know?

9 MR. HILL: Not that I'm aware of.

10 MR. BYRNE: Okay. I would like to see

11 the letter.

12 (Pause.)

13 MR. BYRNE: Okay.

14 MR. HILL: So she just passed out the

15 letter, and there's also a needs versus

16 production sort of one-pager that the D.C. Fiscal

17 Policy Institute provided me with. I didn't

18 speak about it, but the important parts of it

19 indicate that the City is overbuilding at 50 to

20 80 percent of AMI, and underbuilding at zero to

21 50, in terms of the need.

22 MR. BYRNE: In terms of the need,

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1 okay. Anything else for Mr. Hill?

2 MS. BROWN: I have one more question

3 if I may.

4 MS. BROWN: Mr. Hill, have you read

5 the court decision in this case, in --

6 MR. HILL: Yes, briefly at the time.

7 MS. BROWN: Okay, and are you aware of

8 the statement by the Court that says "FMOP does

9 not appear to dispute, and we therefore take as a

10 given that the project has at least some special

11 merit because the project includes the

12 construction of affordable housing beyond what is

13 legally required."

14 MS. FERSTER: And I'm going to object

15 to this question because this Mayor's Agent has

16 reopened this entire proceeding and made clear

17 that positions that we previously had taken, that

18 we were free as the applicants are free to make

19 new arguments, and this is a new argument.

20 MR. BYRNE: Well yes, but it's still

21 relevant. It's still relevant.

22 MS. FERSTER: It isn't a legal

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1 question.

2 MR. BYRNE: That is a legal question.

3 I mean it's --

4 MS. BROWN: It's a factual question.

5 I'm asking -- he said that he read it and I asked

6 him if he remembered this particular provision of

7 it.

8 MS. FERSTER: I would suggest that she

9 make this as a legal argument as opposed to a

10 question --

11 MR. BYRNE: Yeah. I don't think we

12 have to -- I don't think we have to do that,

13 because it's in -- we know it's in the -- it's in

14 the case. What it means is yet to be decided by

15 the Mayor's Agent at this point. So okay, good.

16 Next.

17 MS. FERSTER: Next will be Brett

18 Williams, who is -- who's going to testify on

19 this issue as well.

20 MS. WILLIAMS: I'm an anthropologist.

21 I've worked in DC for about 40 years, mostly on

22 issues on gentrification and displacement. I

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1 want to begin with a report that Mr. Bogorad

2 wrote for the Zoning Commission, which is really

3 masterful in documenting a thorough

4 transformation of Bloomingdale, especially North

5 Bloomingdale over the last 12 years.

6 He shows median rents have gone up,

7 condo resale prices have shot up, home sale

8 prices have gone up. He does a really good job

9 of showing how much Bloomingdale, especially

10 North Bloomingdale, has changed during the last

11 12 years. He didn't look at social measures,

12 which a recent University --

13 MS. BROWN: Excuse me, I'm going to

14 object. She's referring to testimony that's not

15 in the record.

16 MS. FERSTER: This is our opposition

17 case, so she can testify on the point that she

18 wants to make and rely on whatever studies or

19 reports that she wants to.

20 MR. BYRNE: Yes. I'll allow --

21 MS. FERSTER: It's talking about --

22 saying something nice about your report.

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1 MS. WILLIAMS: He didn't look at

2 social measures. A recent Catholic University

3 study found that a 62 percent increase in

4 millenials and a decrease in the black population

5 from 90 percent to 50 percent in Bloomingdale.

6 So Bloomingdale has really, really changed. Mr.

7 Bogorad also didn't look at Edgewood and

8 Stronghold, which are also adjacent

9 neighborhoods, which are changing more slowly and

10 still have multi-generational households, some

11 children and families, and a black population.

12 This gentrification hasn't ended.

13 There's no off switch. It's going to keep

14 spreading and it's going to spread into Edgewood

15 and Strongfield, just as it has -- I'm sorry,

16 Edgewood and Stronghold, as it has in

17 neighborhoods all across D.C. as developers move

18 on from neighborhoods into others that are older

19 and less developed.

20 I think we're looking at a deluge of

21 gentrification and displacement, and the housing

22 that the applicant is proposing to mitigate this

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1 is -- I agree with Mr. Hill, that it's really

2 inadequate. I mean there's nothing at 30 percent

3 AMI in either the rowhouses or the multi-family

4 apartments. The rental apartments I think are

5 almost -- are all one and two bedroom. I don't

6 see how that's housing for families, and there

7 are only three -- there are only nine.

8 I'm sorry, there are only two

9 apartments at 50 percent AMI, which I think is

10 marginally affordable, none at 30 percent and 25

11 at 80 percent, which is, as Mr. Hill has

12 testified, is not really affordable. I just

13 don't see this meriting special merit.

14 The senior apartments are something a

15 little bit different. I'm really ambivalent. I

16 don't want to say that senior citizens don't

17 deserve housing, but I'm just sort of concerned

18 about a neighborhood that's losing a lot of

19 multi-generational households, those younger

20 residents will be displaced, and the seniors are

21 going to move into their own kind of special

22 section of this new development with their own

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1 door.

2 What if a senior lives with an adult

3 child or a disabled adult child or a grandchild?

4 There's no room for anyone else to live with that

5 senior. I don't know. I just think it's kind of

6 dystopian in a way. Extended families provide a

7 lot of services for their members, and we're

8 going to lose a lot of extended families in this

9 part of this City, and they will be missed.

10 I feel like it's kind of stingy to

11 provide so much, such a huge bulk of the

12 affordable housing in the form of these tiny

13 apartments for seniors, as opposed to actual

14 apartments that would really house some of the

15 families that are getting displaced. So I also

16 agree that there's no special merit in this

17 proposal.

18 MS. FERSTER: I have several follow-up

19 questions. You mentioned that you found Mr.

20 Bogorad's report very illuminating in terms of

21 what it illustrated about -- or what it reported

22 about housing prices, both in the current market

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1 in the surrounding neighborhoods. Can you

2 describe what those housing prices are like

3 currently?

4 MS. WILLIAMS: He describes a median

5 rent that's well -- something like $2,300 a

6 month, much higher than in many really, really

7 wealthy parts of D.C. Home sales approaching --

8 many homes going for like a million dollars. The

9 median home sale price I think is over $700,000.

10 It's really not an affordable neighborhood

11 anymore.

12 MS. FERSTER: And how about condo

13 prices? What does that report show as to what

14 the condo prices are, the average condo prices in

15 the Bloomingdale neighborhood?

16 MS. WILLIAMS: I don't remember

17 exactly. I remember that -- I remember they're

18 higher than in DuPont Circle, and going up really

19 fast. I think they're reselling really fast. I

20 don't remember the prices.

21 MS. FERSTER: And just to -- and how

22 about home prices?

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1 MS. WILLIAMS: I believe it was

2 something like -- I'm not sure. I don't

3 remember.

4 MS. FERSTER: Okay. Well maybe we'll

5 bring -- allow you to refresh your recollection

6 for a minute with the report. But one -- then,

7 you know, I guess my last question is, you know,

8 in terms of the affordable housing being offered

9 in this site, do you see that this affordable

10 housing goes above and beyond the affordable

11 housing that's being displaced as a result of the

12 gentrification that has occurred in this

13 neighborhood in the last say ten years?

14 MS. WILLIAMS: I see -- I see. No.

15 I see nine rowhouses which are marginally

16 affordable for people who are earning less than

17 50 percent AMI. But 80 percent AMI is something

18 like $87,000. That's not affordable. So I'm not

19 really counting this. I'm looking at the 50

20 percent ones, and that's just a few houses for

21 all these families and households that have been

22 lost. It in no way makes up for it.

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1 MS. FERSTER: So in other words, this

2 is mitigation that does not adequately mitigate?

3 MS. WILLIAMS: I don't see it as

4 mitigating at all.

5 MS. FERSTER: Okay. So one moment.

6 (Pause.)

7 MS. FERSTER: I'm going to pass the

8 Bogorad report to you. I need to find it, but

9 maybe we can proceed with cross-examination while

10 I'm looking for it.

11 MS. BROWN: I don't know if she is

12 finished with her direct or not.

13 MS. FERSTER: I don't want to take up

14 too much time, so if I can just ask the question

15 after you cross-examine.

16 MR. BYRNE: And then if you have a

17 chance to cross-examine on that question, go

18 ahead.

19 MS. BROWN: Just a few very quick

20 questions. How does the City describe affordable

21 housing for the District of Columbia as it

22 applies to this project?

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1 MS. WILLIAMS: I'm sorry. I don't

2 understand the question.

3 MS. BROWN: Sure. The City has -- do

4 you agree that the City has statutory and

5 regulatory requirements and definitions of

6 affordable housing?

7 MS. WILLIAMS: Am I the right person

8 to ask that question?

9 MS. BROWN: Well, you testified as to

10 whether or not it's affordable. So I'm asking

11 whether or not you're aware of what the City's

12 standards are legally?

13 MS. WILLIAMS: No. I was testifying

14 on the basis of the families that I've known and

15 worked with over the years, and how much income

16 they earn and what they can afford to buy.

17 MS. BROWN: So that's no. Okay, and

18 how many existing houses are on the McMillan

19 project site now that will be displaced?

20 MS. WILLIAMS: It's not the houses on

21 the -- the site is empty as you know. It's the

22 houses in the surrounding neighborhoods, as

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1 property values rise and rents go up and people

2 get displaced.

3 MS. BROWN: So nothing on the site?

4 (Simultaneous speaking.)

5 MS. BROWN: Thank you.

6 MR. BYRNE: Is that it? So how in

7 your -- in your mind does providing more -- so

8 the gentrification you described is real and we

9 appreciate that. Bloomingdale is very stunning

10 in that way.

11 MS. WILLIAMS: I know.

12 MR. BYRNE: How is building more

13 housing displacing people? We think it's

14 providing more supply of housing, so that it

15 would mitigate the rise in the prices of housing

16 generally?

17 MS. WILLIAMS: It's not housing that

18 people who live in these neighborhoods now could

19 ever afford to move into.

20 MR. BYRNE: But if the people are

21 paying, you know, $700,000 for a rowhouse, buy a

22 condominium instead for 500,000, that reduces

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1 demand. If there's more supply, prices go down,

2 right? I mean I think that's basic marginal cost

3 economics.

4 Well there is -- so I'm just asking.

5 There's a big debate around the country on the

6 extent to which just the provision of more

7 housing is part of the response to the very

8 dramatically rising prices of housing.

9 MS. BROWN: Well, it doesn't really

10 help if the population is continuing to grow, if

11 people are continuing to move into the City.

12 MR. BYRNE: But then if you don't

13 build the housing and people continue to move in

14 the City, the prices go up even more, don't they,

15 because you have more demand for the same supply?

16 MS. WILLIAMS: But how does that help

17 people who need affordable housing?

18 MR. BYRNE: By keeping the price from

19 going up as fast, right?

20 MS. WILLIAMS: I mean it's still

21 beyond -- there's still no affordable housing.

22 The really expensive prices are going up faster

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1 than they might otherwise.

2 MR. BYRNE: Right. But at this point

3 --

4 MS. WILLIAMS: There's still no

5 affordable housing.

6 MR. BYRNE: Right, and that's a big

7 problem and I appreciate that. But I don't

8 understand how this -- I'm asking for more

9 clarification on why this project contributes to

10 the problems that you're properly concerned with?

11 MS. WILLIAMS: Well, I think it's

12 already brought people into Edgewood and Strong -

13 - well especially into Stronghold and into North

14 Bloomingdale, who know about the development and

15 want to be part of it and want to be near it.

16 But I think also rents and property values will

17 rise as a result of the market rate housing in

18 the project.

19 MR. BYRNE: Because?

20 MS. WILLIAMS: Because gentrification

21 tends to spread, because people charge more for -

22 - they charge more rent in one neighborhood rises

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1 the prices and the next go up too.

2 MR. BYRNE: In other words it's going

3 to -- in your mind, it's going to increase the

4 attractiveness of the neighborhood as a place to

5 live?

6 MS. WILLIAMS: Yeah right, right, yes.

7 MR. BYRNE: Thank you.

8 MS. FERSTER: Mr. Hill actually has

9 something he would like to add on that question

10 that you posed as well, if he may?

11 MR. BYRNE: Sure.

12 MR. HILL: I was just going to suggest

13 something about the supply and demand debate that

14 you're right, has been going on all over the

15 country. In a place where you have an affordable

16 housing crisis as stark as it is in D.C., it

17 simply would take too long for the housing market

18 to reach some of equilibrium that would bring

19 prices down.

20 And it's really sort of unrealistic to

21 think that prices would ever go down to the point

22 where those that are sort of in the bottom

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1 quintile of what they can afford, that it would

2 ever reach those levels, at least not without

3 catastrophe for the development community.

4 MR. BYRNE: Right, right, right,

5 right. And for homeowners such as yourself.

6 MR. HILL: Sure, yeah.

7 MR. BYRNE: So but I -- but it's

8 really -- I get that, and I'm just, you know, the

9 question is based upon the testimony as to what

10 extent this project contributes to the problems

11 that you're describing. So that was where my

12 questions were coming from but -- did you find

13 the document you wanted?

14 MS. FERSTER: Yes, we did. Ms.

15 Williams, if you can just add some more detail

16 about the price increases that are illustrated in

17 Mr. Bogorad's report.

18 MS. WILLIAMS: Yes, I'm sorry. My

19 apologies for not knowing. I'm notoriously not

20 so good at numbers. But the median, average

21 median home sale price in Bloomingdale is now

22 $818,400.

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1 MR. BYRNE: For a single family home?

2 MS. WILLIAMS: Yes, and the median

3 rent is $2,260.

4 MR. BYRNE: Okay.

5 MS. WILLIAMS: Thank you.

6 MR. BYRNE: Okay. Ms. Brown, do you

7 have anything else for Ms. Williams?

8 MS. BROWN: No more questions.

9 MR. BYRNE: Okay.

10 (Off-microphone comment.)

11 MR. BYRNE: No. Is that okay with

12 you? Pardon?

13 (Off-microphone comment.)

14 MR. BYRNE: No, not usually. Not in

15 my courtroom. But go ahead.

16 MR. OTTEN: Okay. Mr. Hill, just in

17 terms of housing, in your experience do you see

18 housing operate in a supply and demand metric

19 like retail goods, like you know, matchbox cars

20 or oranges and apples?

21 MR. HILL: Well, I would say that, you

22 know, there are some differences between housing

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1 and other goods. Obviously, there's a great need

2 for people to have housing. Lots else flows from

3 housing in terms of outcomes. But I think that

4 the supply and demand argument that's made, the

5 one that we just talked about, I think that my

6 answer sort of answers your question as well.

7 In places where the income inequality

8 is as great as it is in D.C., and where the

9 affordability crisis is as stark as it is in

10 D.C., it will simply just take too long for the

11 housing market to reach equilibrium in a way that

12 will meaningfully help, you know, folks that are

13 struggling with either being extremely cost

14 burdened by housing or homeless, and it's

15 unlikely that the cost will ever go down to --

16 far enough to meet the affordability capacity of

17 those in the lowest quintile of income.

18 MR. OTTEN: It's not like an instant

19 metric. It's not an instant response. You're

20 saying it's like a --

21 MR. BYRNE: We can take judicial

22 notice of the fact that the time horizons in real

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1 estate development are much longer.

2 MR. OTTEN: And Ms. Williams, just to

3 be devil's advocate here, you're saying that the

4 prices of housing and things can go up in a

5 neighborhood. If a project is deleterious to

6 public services, like infrastructure or

7 transitways and access to schools that

8 oversaturated, couldn't that have a negative

9 impact on property values? Have you seen that?

10 MS. WILLIAMS: So if the project is a

11 big failure, we'll leave it for poor people to

12 live with? Is that what you're saying.

13 MR. BYRNE: Let's move on. Let's move

14 on to the next witness. Can we do one more

15 witness?

16 (Off-microphone comment.)

17 MR. BYRNE: Well no, but we didn't

18 hear from Mr. Hansen, yeah. Mr. Hansen, please.

19 MR. HANSEN: Thank you. My name is

20 Stephen Hansen.

21 MR. BYRNE: I'm sorry, and we'll take

22 a break after everyone's done with Mr. Hansen.

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1 We'll go break for lunch. Sorry sir.

2 MR. HANSEN: Okay. My name is Stephen

3 Hansen. I'm the founder and principal of

4 Preservation Matters, LLC, a DC-based historic

5 preservation consulting firm. I am here today in

6 the capacity of an expert witness in historic

7 preservation in the McMillan Park Reservoir

8 Development Project.

9 Following a December 8th, 2016 remand

10 by the Court of Appeals, the Mayor's Agent

11 invited the applicants to make a new argument,

12 whether this project has met preservation

13 benefits and is therefore consistent with the

14 purposes of the D.C. Historic Landmark and

15 Historic District Preservation Act or "the Act."

16 In addition to being designated as a

17 historic landmark in the D.C. Inventory of

18 Historic Sites, the McMillan Park Reservoir site

19 was recommended for listing in the National

20 Register in 1991. In 2013, the McMillan

21 nomination was updated and sent on to the

22 National Register when it was listed as a

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1 historic district.

2 McMillan, as a National Register-

3 listed historic district, requires a two probe

4 approach to examining its historic integrity.

5 First, the meaning and interpretation of the

6 overall site and setting, and secondly, the

7 contributing resources that comprise it. The

8 historic context for McMillan is National

9 Register Criterion A, for its association with

10 development of water supply and water treatment

11 in Washington, D.C., as well as an urban

12 engineering feat and testament to the City

13 Beautiful movement, and is an integral part of

14 the 1901 McMillan Plan's Emerald Necklace.

15 The McMillan Reservoir infiltration

16 system is significant as the first water

17 treatment facility for Washington, as an

18 important element in the federal city's aqueduct

19 and water supply system. Its areas of

20 significance are architecture, engineering and

21 landscape architecture.

22 Of the built environment, the National

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1 Register nomination enumerates a total of 89

2 contributing resources, and only four non-

3 contributing to the District. It also discusses

4 the design landscape as a contributing resource

5 under landscape architecture.

6 In terms of inclusion in the National

7 Register nomination, a resource is either

8 contributing or not, not any more or less so than

9 another. The physical integrity of the specific

10 resource, while it may be described, does not

11 determine its weight and importance.

12 I would like to now move on to the two

13 EHT Traceries documents that explore aspects of

14 McMillan beyond the National Register nomination,

15 and serve as the basis for the treatment of the

16 historic aspects of McMillan within the context

17 of the VMP Project.

18 These are the 2014 Traceries historic

19 preservation report for McMillan, which I'll

20 refer to as "the report," and the 2016 historic

21 preservation plan, which I will refer to as "the

22 plan." The report does a good job as a

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1 historical study providing an assessment of

2 existing conditions and providing recommended

3 treatments of McMillan's built resources.

4 The report states that, "they do not

5 incorporate specific objectives of the VMP or any

6 other stakeholder concerns. This was the proper

7 approach to preservation planning." The report

8 employed a standard Secretary of Interior tool

9 for preservation planning, relative level of

10 significance or RLS.

11 The RLS approach ranks each resource

12 based on its contribution to the historic

13 significance of the landmark as a whole. The

14 report classified resources as either key,

15 supporting or minor in their contributions. As a

16 preservation planning tool, this helps in

17 establishing order in priorities and treatment.

18 But while RLS rankings remain the

19 subjective call of the report's authors, and

20 should not serve as a redefinition or refinement

21 of significance of contributing resources that

22 are included in the National Register, and never

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1 as a justification for development-related

2 demolition.

3 A problem arises when preservation

4 priorities have been adapted to a preservation

5 plan to accommodate the goals of a specific

6 development project. RLS classifications and

7 resulting treatment schemes can become the basis

8 to decide what resources are considered more

9 significant than others, which ones require the

10 least amount of work and expense to preserve, and

11 which ones may also be the most aesthetically

12 pleasing to cosmetically complement the

13 development project.

14 In such an adaptation, individual

15 resources may be admitted or filtered out in the

16 preservation plan in support of developer's

17 goals. This amounts to preservation tokenism.

18 Of the site's non-built landscape resources, the

19 report listed McMillan spatial organization, site

20 plan and topography as key resources, both with

21 high degrees of physical integrity.

22 Yet neither of these key resources are

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1 carried over to the plan's list of resources to

2 be considered for treatment that I believe was

3 submitted in the prehearing exhibits by the

4 applicant. This report -- so the significance of

5 the McMillan site's spatial organization and

6 plan, I quote, "The spatial organization of the

7 built resources and open space conveys their

8 operational relationships as components of the

9 sand filtration process.

10 "Secondly, the organization of the

11 built resources and open space on the site is

12 legible from the ground, and was a key aspect of

13 the public experience of McMillan Park. Thirdly,

14 the site's spatial organization distinguishes it

15 from adjacent," and then there's some text

16 missing in the report, "that was used by Olmstead

17 as the framework for the site's landscape plan."

18 Without any consideration in the final

19 plan, the special relationship between the built

20 environment and open spaces would be destroyed.

21 The topography short of the plinth would be gone.

22 Lost would be the special arrangements of

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1 historic features and the prominence of the

2 towers. Seventy-five percent of the grassy open

3 spaces surrounding the historic structure would

4 be gone, and further obliterating the original

5 plan is the introduction of four new streets.

6 Any perception of the original

7 symmetry or the two rows of sand towers

8 dominating the open spaces would be gone.

9 Related to the spatial organization are the

10 internal views, so carefully addressed by

11 Olmstead that provide vistas onto the site's

12 spatial organization and open spaces.

13 The report stated that "when the

14 facility was first constructed, expansive

15 viewsheds existed within the site, from one side

16 of the filtration plant to the other. Olmstead's

17 landscape design specifically mentions these

18 viewsheds, and its intention not to cut off the

19 interesting and remarkable effect of the filtered

20 bed plain."

21 The report then goes on to state that

22 "while the internal views do not convey the

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1 significance of the site's role and the history

2 of water purification," and with that I think I

3 do agree, "they were intended as a key aspect of

4 the experience of McMillan Park, and are key to

5 understanding the design of the site's build and

6 landscape resources, and were featured in

7 Olmstead's landscape plan.

8 These viewsheds rated with the same

9 supporting significance in the report as other

10 built elements that are to be preserved, never

11 made it into the final plan and will therefore

12 also be destroyed by this project.

13 As a result of such selective

14 filtering, the few resources that are to be

15 maintained are only those built resources, not

16 all of which are rated with the same high degree

17 of significance either, that stand least in the

18 way of the project's goals.

19 This includes the Olmstead Walk, the

20 sand bins, which can remain on the median strips,

21 and some of the portals that would serve merely

22 as architecture accents and dividers. My concern

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1 is that with so much destruction to contributing

2 resources, and thus the overall character and

3 context of the historic district, McMillan might

4 become a candidate for delisting from the

5 National Register.

6 One of the basis that the National

7 Park Service uses for removing properties from

8 the National Register is that, and I quote "the

9 property has ceased to meet the criteria for

10 listing in the National Register, because the

11 qualities which caused it to be originally listed

12 have been lost or destroyed."

13 While the City itself can also request

14 a delisting, I think this could prove an

15 embarrassment in ensuring the priority of

16 development over preservation in a City that

17 prides itself on its preservation.

18 In terms of evaluating the historical

19 importance features and treatment of McMillan, we

20 also need to look at the Comprehensive Plan. The

21 mid-city area element of the Comprehensive Plan

22 provides the details for the preservation of the

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1 McMillan and the District's plan for its future

2 development and use.

3 In the preamble on McMillan, the area

4 element states that the entire site is considered

5 historically significant. It also notes that the

6 filtration site and the adjacent McMillan

7 Reservoir were part of the Emerald Necklace of

8 Parks conceived in the 1901 McMillan Plan, and

9 that the site itself was originally designed by

10 Frederick Law Olmstead, Jr.

11 The element then outlines five basic

12 objectives for any reuse of McMillan. I will

13 touch on two of these objectives related to the

14 historic integrity and treatment of the site.

15 That is the open space and its historic

16 preservation.

17 Policy MC-261 requires that the reuse

18 plans for the McMillan site dedicate a

19 substantial, contiguous portion of the site for

20 recreation and open space. The open space should

21 provide for both active and passive recreational

22 uses, and should adhere to the high standards of

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1 landscape design, accessibility and security.

2 The preservation of as much of the

3 open spaces as possible is necessary to maintain

4 McMillan as part of the Emerald Necklace, as well

5 as preserve its historic spatial organization and

6 internal viewsheds. But only one-fourth of the

7 site would be set aside for open space and

8 recreation. This project would cover 20 acres of

9 the remaining space with office building, retail

10 and residential housing, and destroy any options

11 for future public use of the site, as well as

12 destroy key historic character-defining features

13 of the historic district, that is its open spaces

14 and vistas.

15 Policy MC-262 calls for the

16 restoration of the key above ground elements of

17 the site in a manner that is compatible with the

18 original plan, and explore the adaptor for use of

19 some of the underground cells as part of the

20 historic record of the site.

21 The relatively few above-ground

22 elements that are to be retained are not proposed

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1 to be restored in a manner compatible with the

2 original plan for the site. The proposal

3 eviscerates the historic context for the

4 regulator houses and sand bins. Their new

5 setting would be in the roadway medians adjacent

6 to office towers and dense residential blocks.

7 The heavily programmed treatment of

8 this area renders them as follies, and leaves no

9 hint of their original function and meaning

10 within the context of the plan for McMillan. An

11 argument has been made that this project would

12 allow or enhance for public access to the site,

13 but this is not a preservation benefit. Public

14 access is not a requirement for National

15 Register-listed sites.

16 Also, what might be gained in

17 additional access, very little would be to what

18 was a historic McMillan site itself. Much of the

19 new or restored access would be to a new

20 development set on top of what were historic

21 resources. Yes, this may equate to access to the

22 location's physical space, but not to what is the

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1 historic landmark.

2 I'll leave it to others to discuss the

3 architectural merits of this project, but from a

4 historic preservation perspective, this is simply

5 another very dense, boxy and cookie-cutter

6 development of office buildings, residential and

7 retail space on a large piece of land,

8 encroaching on and into an important historic

9 resource, with a few historic relics thrown in

10 for some flavor.

11 The height, density and massive

12 development simply overwhelm the character of the

13 landmark, and does not attempt to present an

14 organic site frame that should be the requisite

15 of such a large, unique and historically

16 significant site.

17 I'd like to take the time now to

18 discuss a more recent Mayor's Agent decision than

19 the ones that were brought up in previous

20 testimony, that I believe is similar to this case

21 and is relevant.

22 In 2006, an applicant sought permits

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1 to construct a condominium project on the site of

2 the former Italian Embassy on 16th Street, N.W.,

3 which included demolition and alterations to the

4 existing Embassy building. Subsequent to the

5 filing of one of the permits, the D.C. Historic

6 Preservation Review Board or HPRB granted the

7 former Italian Embassy landmark status and

8 determined that the proposed demolition was not

9 consistent with the purposes of the Act.

10 The HPRB's findings of significant

11 demolition and thus inconsistency with the Act

12 required the Mayor's Agent to consider whether

13 the project was necessary in the public interest.

14 Notwithstanding the HPRB's contrary finding, the

15 applicant asked the Mayor's Agent to approve the

16 demolition as consistent with the purposes of the

17 Act.

18 The Mayor's Agent concluded that the

19 significant removal of building fabric was not

20 consistent with the purposes of the Act. He also

21 concluded that the proposed creation of 79

22 condominiums did not constitute a community

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1 benefit, although the applicant argued that the

2 City's Comprehensive Plan highlighted the need

3 for housing production.

4 In its decision, the Mayor's Agent

5 also quoted the 2001 Webster School decision,

6 where that decision stated also that office

7 buildings did not constitute special merit. The

8 applicant also contended that a glass tower to be

9 erected behind the Embassy should be considered

10 new construction, and enjoy a presumption of

11 compatibility with landmark.

12 But the Mayor's Agent found that

13 construction of the tower would require removal

14 of a considerable portion of the Embassy's

15 historic fabric, and thus should be treated as a

16 demolition project and not strictly as new

17 construction. The Mayor's Agent also held that

18 even if the project could be considered new

19 construction, the proposed glass tower would be

20 too large, too close and too much of a contrast

21 for the architectural intent of the landmark to

22 be determined compatible.

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1 So how does this Mayor's Agent

2 decision on the Italian Embassy relate to that of

3 the McMillan project? One, HPRB found that the

4 extent of the demolition is not consistent with

5 the Act. Two, new housing, even as called for in

6 the Comprehensive Plan and office buildings do

7 not constitute a special merit.

8 The proposed construction is not

9 strictly new construction, as it involves

10 significant demolition. The new construction is

11 too large, too close and too much of a contrast

12 with both landmarks. So to conclude, I ask does

13 the proposed project's historic preservation

14 benefits taken as a whole outweigh its historic

15 preservation harms? No.

16 Does it retain and enhance a historic

17 landmark? No. Does it encourage the restoration

18 of the historic landmark? No. Does it encourage

19 its adaptation for current use? Only at the cost

20 of destroying more historic material and context

21 than it maintains. Lost built resources would

22 include most of the filter beds, many of which

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1 have only minor or moderate levels of

2 disfiguration and could be saved.

3 Half the portals, as well as the two-

4 thirds of the site's open space surrounding the

5 service ports. Of the non-built resources, loss

6 would be most of the site's historic topography,

7 spatial organization, open spaces and viewsheds.

8 If the project's historic preservation benefits

9 taken as a whole outweigh its historic

10 preservation harms or had addressed an explicit

11 series of development goals outlined in the

12 Comprehensive Plan, an argument might be made

13 that it's necessary in the public interest.

14 But this hasn't happened. It's a

15 challenge to find any aspect of development to be

16 consistent with the Act. So when so much is

17 wrong about the proposal and its treatment for

18 McMillan, there is no equivalency in what would

19 be lost and what would be gained.

20 I therefore concur with the HPRB

21 Review Board, that the project simply cannot be

22 found to be consistent with the purposes of the

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1 Act. I thank you for this opportunity to

2 testify.

3 MR. BYRNE: Thank you.

4 MS. FERSTER: I have just one follow-

5 up question. So Mr. Hansen, you talked in your

6 testimony about the 2014 EHT report and its

7 discussion about the significance of the spatial

8 organization of the site, meaning the built

9 resources and the open space and its relationship

10 to those built resources.

11 So would you say that the open space

12 of the site that is closest to the sand bins is

13 the most important open space on the site in

14 terms of its historic significance?

15 MR. HANSEN: As opposed to which is

16 further away on the same plain?

17 MS. FERSTER: As opposed to the open

18 space that is provided, you know, that abuts

19 actually Michigan Avenue, that's farther from the

20 sand bins and separated by buildings in the open

21 space that's provided on the south end of the

22 site, which again is far from the sand bins and

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1 separated from -- of the site by buildings?

2 MR. HANSEN: That's would be sort of

3 a two-pronged answer I think. Just in light of

4 preserving as much of the space as possible on

5 these open spaces, I would say that space that is

6 closest to the sand bins and that is further away

7 on the same plain would be equally important.

8 If you're looking at this in the

9 context of the development project, which is

10 something I have considered a bit, I would say

11 that maintaining as much of the open space

12 contiguous to the sand bins and the two

13 concourses would be -- I'd say it's a bit more

14 important because it would still maintain some of

15 the perspective, their relationships to sand bins

16 and the other built resources to some of the open

17 space as opposed to building right up to it.

18 MS. FERSTER: Thank you.

19 MR. BYRNE: Ms. Brown.

20 MS. BROWN: Thank you. Just following

21 up on that last line of inquiry, the south

22 service court is adjacent to the open space, the

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1 6.2 acre park at the south; correct?

2 MR. HANSEN: Yes.

3 MS. BROWN: So that relationship is

4 there. It's an open space to the south service

5 court, the sand bins, the sand washers, the other

6 above-ground features; correct?

7 MR. HANSEN: Pretty much, except

8 you've added a new community center as well,

9 which is kind of breaking the plain back.

10 MS. BROWN: My second question is do

11 you recognize that the Mayor's Agent is

12 controlled by the landmark designation and not

13 the National Register nomination?

14 MR. HANSEN: Yes, I do.

15 MS. BROWN: But your testimony is

16 based on the National Register?

17 MR. HANSEN: It's based partially on

18 the National Register.

19 MS. BROWN: It's almost exclusively.

20 That's all you cited, except in one sentence on

21 the first page; correct?

22 MR. HANSEN: Yes, but what else would

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1 I cite as far as reference to the local landmark

2 as well?

3 MS. BROWN: Yeah.

4 MR. HANSEN: But they're the same

5 document.

6 MS. BROWN: Actually, that's your

7 opinion and we'll have testimony about that

8 later. What role does the structural integrity

9 of the structures play in your evaluation?

10 MR. HANSEN: Could you repeat the

11 question?

12 MS. BROWN: Yes. As you --

13 MS. FERSTER: That goes beyond the

14 scope of his testimony. He did not testify to

15 structural integrity.

16 MS. BROWN: He is an expert witness.

17 MS. FERSTER: He's not a structural

18 engineer.

19 MS. BROWN: He's an expert witness.

20 He's testifying about the consistency of the net

21 preservation benefits, and one of the things that

22 would think you'd need to consider in net

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1 preservation harms versus benefits is the

2 condition, structural condition of the property.

3 MS. FERSTER: I disagree. He did not

4 testify to that. That's not part of his

5 testimony. That's your testimony that your

6 expert can testify to that.

7 MR. BYRNE: Well, integrity is part of

8 the -- part of the historic evaluation of the

9 property.

10 MS. FERSTER: Well, if she wanted to

11 ask about integrity.

12 MS. BROWN: Sure.

13 MR. BYRNE: Well, that's what I

14 understood.

15 MS. BROWN: Yes, structural integrity

16 of the property.

17 MS. FERSTER: And structural integrity

18 is different from historic integrity. Can you be

19 clear about that?

20 MS. BROWN: I agree, and I'm asking

21 about the structural integrity, if it plays any

22 role in the evaluation of historic properties.

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1 MR. BYRNE: Okay. That question is

2 fine. Go ahead.

3 MR. HANSEN: Yes, I agree that it

4 does. But I think you need to be really

5 sensitive in light of the McMillan project, and

6 realize that from a preservation perspective,

7 preservation is work and it's expensive. So

8 structural issues can be addressed. Some can't.

9 MS. BROWN: And were you present for

10 the testimony on the structural condition of the

11 underground cells?

12 MR. HANSEN: Yes, I was.

13 MS. BROWN: And do you disagree with

14 that testimony?

15 MS. FERSTER: He is not in a position

16 --

17 MR. BYRNE: Right. I'll sustain that

18 objection.

19 MS. BROWN: My third question is are

20 viewsheds protected under the local District law?

21 MR. HANSEN: In general?

22 MS. BROWN: Yes, and specifically for

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1 this site.

2 MR. HANSEN: In general no, but

3 they're taken into consideration for this site,

4 since the viewsheds have been considered

5 significantly contributing resources.

6 MS. BROWN: Under the law is what I'm

7 asking.

8 MR. HANSEN: Under the law, no.

9 MS. BROWN: Thank you. And are you an

10 expert in applying the Comprehensive Plan to

11 historic preservation projects?

12 MR. HANSEN: I am very familiar with

13 the Comprehensive Plan. I would say I'm not an

14 expert. But I know that when I'm doing

15 preservation work, I always look to the

16 Comprehensive Plan for guidance.

17 MS. BROWN: And this is a

18 clarification question. On page four of your

19 testimony, you list provisions from the

20 Comprehensive Plan Policy MC-2.6.1, and then

21 Historic Preservation, MC-2.6.2. Is any of this

22 directly quoted or are you paraphrasing this?

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1 MR. HANSEN: It's directly quoted.

2 MS. BROWN: And where are the

3 quotation marks? Where should they begin and

4 end? It's four.

5 MR. HANSEN: Page four, under Historic

6 Preservation. This is much of an argument.

7 MR. BYRNE: Sorry?

8 MR. HANSEN: I looked at quotation.

9 I removed them. So is this really an argument?

10 MR. BYRNE: Well, if you say you don't

11 know, that's the answer.

12 MR. HANSEN: I don't know, exactly.

13 MS. BROWN: Okay. I was just trying

14 to understand some of your -- whether this is

15 opinion, whether it's direct quote but you can't

16 distinguish --

17 MR. HANSEN: No, it is not opinion.

18 If there's any, the slightest word change in the

19 introductory paragraphs under each of those two

20 elements, it is pretty much verbatim and not

21 interpretation.

22 MS. BROWN: Okay. So the third

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1 paragraph under -- the third paragraph under one,

2 Open Space, is that part of the Comprehensive

3 Plan?

4 MR. HANSEN: That is not. So you're

5 right. There should be --

6 MS. BROWN: And is the second

7 paragraph part of the Comprehensive Plan quote?

8 MR. HANSEN: No. So --

9 MS. BROWN: And then under two, the

10 first paragraph, is it a direct quote you believe

11 that the second paragraph is your own wording?

12 MR. HANSEN: Yes.

13 MS. BROWN: Okay. I just want to make

14 sure I got that clear for the record. Those are

15 all my questions.

16 MR. BYRNE: All right.

17 MS. FERSTER: I do have a couple of

18 redirect questions. Go ahead.

19 MR. BYRNE: So I have some questions

20 too. Mr. Hansen, so from your perspective as an

21 expert in historic preservation, what about the

22 fact that the cells all are identical to each

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1 other in terms of their visual character? Does

2 that diminish the historic significance of any

3 one of them?

4 MR. HANSEN: No.

5 MS. BROWN: No. I understood -- okay.

6 From your -- from an historic preservation

7 perspective, what kind of projects should -- how

8 should McMillan be used?

9 MR. HANSEN: This is within the scope

10 of my testimony?

11 MS. FERSTER: Well, I mean this --

12 you're asking for his personal opinion, because

13 he is an expert. He's not a representative of

14 the Friends of McMillan Park.

15 MR. BYRNE: I'm asking him as an

16 historic preservation expert what your view is.

17 I'm not trying to characterize Friends of

18 McMillan Park. I just want to ask what your --

19 what your view is.

20 MR. HANSEN: My view as just a

21 professional. Should I be talking to you as a --

22 MR. BYRNE: Well, you're talking to

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1 the Mayor's Agent. I mean that's all -- this is

2 all in the public space, but I am, you know.

3 It's relevant. It would be helpful to me to hear

4 from a knowledgeable as to what -- who cares

5 about, whose focus is historic preservation, what

6 you think should happen to the site.

7 MR. HANSEN: Okay. Can we say

8 should/could? Let me answer this. I believe

9 that in order to maintain as much of McMillan

10 site as possible, it would require some

11 development. I believe that development should

12 be first of all compatible with how it's called

13 for in the Comprehensive Plan.

14 But just from a development/historic

15 preservation perspective, I think that any

16 development on the site should be compatible to

17 the open spaces and built resources. To do that,

18 I think the height of the development should be

19 compatible, not insult the resources there,

20 overshadow them. I think it should be able to

21 accent the resources that are kept and can still

22 be read within a more general context.

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1 One way to do that is having further

2 setback from the two causeways through the site,

3 maintaining some of the open space and not having

4 the height that follows conflict with that space.

5 MR. BYRNE: Thank you. I appreciate

6 that. All right, Ms. Ferster.

7 MS. FERSTER: A couple of redirect

8 questions. In terms of the documentation,

9 historic documentation that you relied on to

10 prepare your report, I understand that you did

11 review the historic district nomination.

12 But can you please clarify that it

13 appeared to me that you also primarily based your

14 testimony on the EHT 2014 report, of which you

15 were very complimentary in its assessment in

16 terms of integrity and the significance of

17 historic resources. So is that correct?

18 MR. HANSEN: That is correct.

19 MS. FERSTER: Okay, and in terms of

20 that report, did you note what that report said

21 in terms of the site's integrity?

22 MR. HANSEN: Overall integrity?

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1 MS. FERSTER: Of the site. Not the

2 structural, but the historic integrity of the

3 site. Did it assess the overall historic

4 integrity of the site?

5 MR. HANSEN: Yes. I believe it's at

6 high integrity.

7 MS. FERSTER: High integrity, thank

8 you, and just a last question is are you are

9 familiar with any highly deteriorated historic

10 property, you know, that you are aware of

11 anywhere, that have been successfully

12 rehabilitated and adaptively reused,

13 notwithstanding their deterioration?

14 MR. HANSEN: Locally?

15 MS. FERSTER: Nationally.

16 MR. HANSEN: Maybe I'm a little bit

17 tired, so I would say I am not.

18 MS. FERSTER: Okay. As an expert, is

19 it generally possible to --

20 MR. HANSEN: Yes, it is.

21 MS. FERSTER: -- rehabilitate severely

22 deteriorated properties and adaptively reuse

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1 them?

2 MR. HANSEN: Of course.

3 MS. BROWN: One follow-up based on

4 that redirect. Are you aware of any highly

5 deteriorated structures made of unreinforced

6 concrete that can be rehabilitated?

7 MR. HANSEN: Rehabilitated? I am not

8 at this point, no.

9 MS. BROWN: Thank you.

10 MR. BYRNE: All right, Mr. Otten. Go

11 ahead.

12 MR. OTTEN: Just a quick question, Mr.

13 Hansen. Isn't the Comprehensive Plan D.C. law?

14 MR. HANSEN: Yes, it is.

15 MR. OTTEN: Thank you.

16 MR. BYRNE: Okay. Let's take an hour

17 for lunch, which will bring us back here to begin

18 again at 2:30, and we'll go from there. Thank

19 you.

20 (Whereupon, the above-entitled matter

21 went off the record at 1:32 p.m. and resumed at

22 2:34 p.m.)

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1 MR. BYRNE: Okay. It might be a good

2 time to start.

3 MS. FERSTER: So one of our witnesses

4 needs to be sworn in.

5 MR. BYRNE: Thank you. Just these

6 two?

7 Ms. Miller, I think you need to be

8 sworn in too. Oh but you were in the back. You

9 were sworn. It's doubly effective if you do it

10 two times. No, I'm kidding.

11 (Witness sworn.)

12 MR. BYRNE: Thank you. Okay. I guess

13 we're ready to go.

14 MS. FERSTER: Okay. Andrea Ferster

15 for Friends of McMillan Park again. My next two

16 witnesses are going to be addressing the

17 exemplary architecture and historic preservation

18 issues as well. We're going to start with

19 Rebecca Miller of the D.C. Preservation League.

20 MS. MILLER: Thank you. Good

21 afternoon. My name's Rebecca Miller. I'm the

22 executive director of the D.C. Preservation

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1 League. I'm here on behalf of the organization

2 today. We are a Washington citywide advocate for

3 the preservation and protection of Washington's

4 historic and built environment. I'm here

5 testifying today in opposition to the applicant's

6 assertion that the proposal for the redevelopment

7 of McMillan sand filtration site, located at 2501

8 1st Street, N.W., is consistent with the purposes

9 of the Historic Preservation Act and that it

10 meets the test for exemplary architecture.

11 DCPL was founded in 1971 as Don't Tear

12 It Down, and its vice president, David Bonderman,

13 drafted and advocated for the passing of the

14 Historic Landmark and Historic District

15 Protection Act of 1978. I'll refer to it as the

16 Preservation Act. DCPL and Don't Tear It Down

17 has participated in dozens in Mayor's Agent

18 hearings, including cases that were reviewed for

19 exemplary architecture.

20 McMillan has also been listed by DCPL

21 as one of Washington's most endangered places,

22 originally due to City neglect of the property

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1 and more recently due to the substantial

2 demolition required to build a project of such

3 scale on its designated landmark site.

4 The Preservation Act was passed to

5 prevent unauthorized demolition and destruction

6 of historic landmarks and contributing buildings

7 within historic districts. It recognizes the

8 unique architecture seen throughout the City and

9 the importance of its protection, and you cannot

10 get more unique than the McMillan site.

11 In my discussions with David Bonderman

12 about the drafting of the Act, he said that it

13 was recognized that some demolition alterations

14 and new construction would be necessary, and that

15 then-Mayor Walter Washington insisted on an

16 escape valve for projects that met certain tests.

17 One of these tests is exemplary

18 architecture. However, it is not well-defined in

19 the law and was envisioned to only be used in

20 extreme cases.

21 There have been very few cases that

22 have met the test for exemplary architecture, and

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1 in reviewing the cases since 1981, beginning with

2 Rhodes Tavern, you can see how the test has

3 evolved. For instance, just maintaining a facade

4 of adjacent structures when Rhodes Tavern was

5 deemed to be demolished of the Metropolitan Bank

6 Building and the Albee Theater was considered

7 exemplary.

8 Well today the preservation community

9 would see that as a very minimal possible

10 preservation option. Mayor's Agents opined in

11 later cases that such as the application to

12 demolish the Woodward Building in 1986, that the

13 exemplary architecture is more than just

14 compatibility, but requires an extraordinary

15 design.

16 In the Arena Stage case, the applicant

17 had support from the Historic Preservation Review

18 Board, who adapted its staff report on the

19 conceptional design and the new addition, which

20 noted architectural concept is entirely fresh,

21 innovative and appropriately dramatic, and could

22 support a claim of exemplary architecture before

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1 the Mayor's Agent.

2 In 2007, the developer for the C&P

3 Warehouse located at 1111 North Capitol Street

4 sought approval of special merit by virtue of

5 social and other benefits, having a high priority

6 of community services, specific features of land

7 planning and exemplary architecture.

8 Although the Historic Preservation

9 Officer, David Maloney, testified in support of

10 the application, the Mayor's Agent order notes

11 that Mr. Maloney disagreed with the applicant's

12 assertion that the architectural design of the

13 project was sufficiently exemplary to provide an

14 independent basis for a finding of special merit,

15 testifying that such a designation should be

16 limited to extraordinary, world-class projects

17 financed by large institutional applicants.

18 Mr. Maloney states in the transcript

19 "As you know, however Your Honor, we have tried

20 to reserve the designation of exemplary

21 architecture to very special circumstances, if

22 you will, to use sort of an hackneyed term, to

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1 world class buildings, signature projects that

2 often are the kind of thing that can only be

3 accomplished in very unusual circumstances, often

4 by institutions that have lavish budgets where

5 the public receives something of truly unusual

6 and special public benefit."

7 Often these buildings have large

8 public spaces where the public can experience the

9 quality of the interior architecture in a very

10 direct and widespread manner. In this case, in

11 this same case, Mr. Maloney testified that the

12 C&P Warehouse project was not consistent with the

13 purposes of the Preservation Act.

14 "First, the question of why the

15 Historic Preservation Office and the Preservation

16 Review Board judged this project not entirely

17 consistent with the purpose of the Act was

18 essentially for two reasons.

19 "One is the extent of demolition of

20 the historic building, which amounts to roughly

21 50 percent of the building, and in terms of the

22 character-defining features of the building,

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1 certainly many of them are to be retained,

2 including virtually all of the street facades,

3 and there are some facades that continue around

4 that are not being retained. A small amount of

5 the facades are being removed.

6 "The other reason why HPO judged the

7 project not entirely consistent with the purpose

8 of the Act does not -- does involve a new large

9 building that encroaches in part over the

10 footprint of the historic building, and although

11 there certainly are setbacks from the historic

12 facades, it will be evident that there is a new

13 building encroaching over a landmark."

14 In 2013, McMillan Park Historic

15 District and sand filtration site was -- there

16 was a new nomination that was put forward,

17 consolidated, updated. Originally, it was

18 designated in 1991 locally. In the case before

19 you, the plan proposes to demolish all but two of

20 the 20 underground sand filtration beds and

21 vaults located on the current building site, not

22 on the entire site, while maintaining much of the

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1 above-ground features that include the regular

2 houses, sand bins and sand washers.

3 That's 80 percent of the underground

4 contributing resources, thus making this a far

5 cry from being consistent with the purposes of

6 the Historic Preservation Act. In addition, the

7 new development severely encroaches on the

8 landmark site. Therefore, Mr. Maloney's

9 assessment in 2007 should be relevant here as

10 well.

11 The Mayor's Agent found in his April

12 12th, 2015 order that the proposed project would

13 cause serious loss to McMillan's historic

14 resources. However, that was mitigated by the

15 project's increased public access, rehabilitation

16 and interpretation would promote preservation

17 gains to the public.

18 Based on this assertion, the Mayor's

19 Agent cannot find that the project is consistent

20 with the purpose of the Preservation Act, given

21 that the proposal will compromise all but one of

22 the seven aspects of integrity identified by the

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1 National Park Service including lots of design,

2 setting, materials, workmanship, feeling and

3 association. The only one that's not compromised

4 is location, and that is just on the basis that

5 nothing is being relocated.

6 In regards to Issue No. 3, with

7 regards to whether or not there could be an

8 economically viable project that could be

9 constructed on the site, DCPL believes that there

10 could be. We had previously asked Douglas

11 Development Corporation in 2014 to prepare a

12 letter with that assertion.

13 My understanding in the last year is

14 that Douglas Development was approached to

15 rescind that letter. They were asked to do so

16 and that they declined to do so. So I believe

17 that as a developer who does the majority of the

18 preservation projects in the District of

19 Columbia, that if they say that it could be done

20 economically in a feasible way with less

21 construction, then you could believe it.

22 Also there was a question earlier that

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1 counsel had posed with regards to whether or not

2 there had been a Mayor's Agent decision with

3 regards to affordable housing. It was one that

4 you actually presided over, which was the Big K

5 case in historic Anacostia, which of course is a

6 very fragile historic district. In that case,

7 you found the 100 percent affordable housing to

8 be a special merit benefit.

9 And then there was another question

10 about landmarks that have been rehabbed with

11 unreinforced concrete. There's not a lot of

12 them. Obviously, the Pantheon in Rome is

13 unreinforced concrete, also thousands and

14 thousands of years old. Reinforced concrete came

15 into creation right around the middle of the 19th

16 century, and it really hasn't been tested.

17 There's not like a National Park

18 Service. They do a lot of briefs on how to deal

19 with buildings and what-not, but there are places

20 of unreinforced masonry that have been very much

21 tested, such as in Italy and in the Czech

22 Republic and in Paris, where underground

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1 catacombs have been reused as art spaces and

2 things like that.

3 So I think that there should be more

4 study with regards to whether or not the

5 unreinforced concrete can be rehabilitated,

6 because there just really hasn't been a lot of

7 it.

8 In conclusion, the D.C. Preservation

9 League urges the Mayor's Agent to deny the

10 applicant's request to find the project

11 consistent with the purpose of the Act, and to

12 deny their assertion that the project meets the

13 test for special merit for exemplary

14 architecture.

15 Granting on these grounds would put

16 preservation in great peril in the future. Thank

17 you very much.

18 MR. BYRNE: Okay. Ms. Ferster any --

19 MS. FERSTER: No.

20 MR. BYRNE: Okay. Ms. Brown.

21 MS. BROWN: Just a quick question. Do

22 you have a copy of her testimony?

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1 MS. FERSTER: Sure, uh-huh.

2 MR. BYRNE: Thank you.

3 MS. BROWN: I have just a few quick

4 questions for you.

5 MS. MILLER: Yes ma'am.

6 MS. BROWN: Good afternoon.

7 MS. MILLER: Hello, good to see you.

8 MS. BROWN: How many times did you --

9 the Design Review Committee of the D.C.

10 Preservation League review this project?

11 MS. MILLER: I believe once or twice,

12 and that was early on in the project, probably

13 the late 2000's, and it was some of the buildings

14 with regards -- most of it was mass and studies.

15 MS. BROWN: And did DCPL take a formal

16 position on the design at that time?

17 MS. MILLER: I do believe we presented

18 testimony before the Historic Preservation Review

19 Board with regards to the massing.

20 MS. BROWN: And did you participate in

21 all the Historic Preservation Review Board

22 meetings?

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1 MS. MILLER: We did not.

2 MS. BROWN: And did you -- you did not

3 testify at the Mayor's Agent?

4 MS. MILLER: We did not.

5 MS. BROWN: Okay. You testified about

6 the C&P Telephone building case and you quoted

7 from some of David Maloney's testimony. Did the

8 Mayor's Agent adopt his testimony, the quotes

9 that you had about extraordinary, special and not

10 hackneyed design?

11 MS. MILLER: They did not end up

12 making a decision on it. The Historic

13 Preservation Officer, David Maloney, also stated

14 that they didn't think that they needed to make

15 that kind of decision because there was already a

16 case being made for community benefit.

17 MS. BROWN: Okay, and you also stated

18 that all but two of the 20 underground cells

19 would be demolished, equating to 80 percent.

20 Isn't it true that the D.C. Water has already

21 demolished two of those, so it's not the extent

22 that you say?

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1 MS. MILLER: I said it was specific to

2 this particular building site, not the entire --

3 MS. BROWN: So you're not aware about

4 the building site being --

5 MS. MILLER: Just the building? Yes,

6 I'm aware of the ones that were demolished. That

7 was a couple of years ago. I think it -- I

8 believe it went through a Mayor's Agent case.

9 MS. BROWN: So you're excluding those

10 corner cells from the development site?

11 MS. MILLER: Well, they've already

12 been demolished.

13 MS. BROWN: But so what goes on above

14 grade is not considered part of this project?

15 MS. MILLER: Well, everything that

16 goes on on this particular building site is a

17 part of this project. So you're keeping -- so

18 I'm only talking about 80 percent of the cells.

19 MS. BROWN: Okay. It seems that -- so

20 you're not -- how many cells are on the site?

21 MS. MILLER: My understanding is

22 there's 20.

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1 MS. BROWN: And how many are occupied

2 by D.C. Water? How many did D.C. Water demolish?

3 MS. MILLER: Two.

4 MS. BROWN: And how many does that

5 leave that the applicant's proposals to demolish?

6 MS. MILLER: My understanding is that

7 the applicant proposed to keep two sites, two of

8 the underground cells, is that not correct?

9 MS. BROWN: So I guess the denominator

10 is really not two out of 20. It's two out of the

11 remaining 18?

12 MS. MILLER: Okay. Well, that doesn't

13 lower my percentage too much, but sure.

14 MS. BROWN: Okay. I just wanted to

15 understand if you --

16 MS. MILLER: It's still a remarkable

17 demolition, yes. More than 50 percent of the

18 cells.

19 MS. BROWN: Are you aware of the

20 structural issues with the site?

21 MS. MILLER: I've heard about them,

22 yes.

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1 MS. BROWN: Have you read the report?

2 MS. MILLER: I have read the report,

3 yes.

4 MS. BROWN: The CCGM report?

5 MS. MILLER: Well, I am not a

6 structural engineer so -- and I don't pretend to

7 be. We would have to have one of our structural

8 engineers that would be on the DCPL's board to

9 make any other assertion with regards to the

10 structural.

11 MS. BROWN: Okay. So did someone on

12 the DCPL board read the CCGM report?

13 MS. MILLER: Not to my knowledge.

14 MS. BROWN: And did someone on the

15 DCPL board read the Silman report?

16 MS. MILLER: That I cannot answer at

17 this point.

18 MS. BROWN: Okay.

19 MS. MILLER: I don't know if anybody's

20 read -- I have read the reports that have been

21 publicly available.

22 MS. BROWN: And do you disagree with

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1 the Silman report?

2 MS. FERSTER: She has just said that

3 she's not a structural engineer, so she's not in

4 a position to agree or disagree with their -- the

5 structural engineer's assessment.

6 MR. BYRNE: I'll let her answer the

7 question.

8 MS. MILLER: I'm not a structural

9 engineer. So I can't agree or disagree with it.

10 I do find in many cases that structural engineer

11 reports can -- there are other alternatives that

12 are presented when another structural engineer

13 looks at them.

14 MS. BROWN: So you made reference to

15 the Pantheon as an unreinforced concrete

16 structure. Are you aware of any brick that's in

17 the Pantheon?

18 MS. MILLER: No.

19 MS. BROWN: In the arches?

20 MS. MILLER: No.

21 MS. BROWN: You're not aware of that?

22 MS. MILLER: I'm not aware of it.

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1 Like I said, I just -- I was just -- you asked

2 about an unreinforced concrete building, and

3 that's one that's thousands of years old that

4 they've managed to maintain. So it's not, like I

5 said --

6 MS. BROWN: So is that opinion or is

7 it fact?

8 MS. MILLER: That the Pantheon still

9 stands?

10 MS. BROWN: That the Pantheon is

11 unreinforced concrete in its totality?

12 MS. MILLER: The dome is concrete.

13 MS. BROWN: In its totality?

14 MS. FERSTER: I don't think she

15 testified in its totality. She just said it is

16 unreinforced concrete.

17 MS. BROWN: Okay. So are you aware of

18 the -- you talked about this not being consistent

19 with the purposes of the Act, this McMillan

20 project in your opinion. Is that something that

21 the DCPL board voted on as well?

22 MS. MILLER: This is something that's

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1 been discussed at the DCPL board, yes.

2 MS. BROWN: It's been discussed, but

3 has DCPL taken a vote on it?

4 MS. MILLER: I don't know that we've

5 taken an official vote from the board of

6 trustees.

7 MS. BROWN: So you're speaking more in

8 your personal capacity?

9 MS. MILLER: No. This is not my

10 personal capacity. This is on behalf of the

11 organization. This has been cleared through our

12 executive committee.

13 MS. BROWN: Okay, and are you aware of

14 the discussion in the D.C. Court of Appeals case

15 regarding consistent with the purposes of the

16 Act, and the preservation, balancing the net

17 preservation benefits against the net

18 preservation losses?

19 MS. MILLER: I've read discussion of

20 it.

21 MS. BROWN: I think those are all my

22 questions.

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1 MR. BYRNE: So Ms. Miller, did you --

2 did you find the statement by the Court of

3 Appeals about the treatment of historic

4 preservation matters in Mayors Agent cases to be

5 surprising? In other words, that it could not be

6 considered as part of the project's special

7 merit, but that the Mayors Agent should be

8 directed to consider it in terms of ---

9 consistent with the purposes of the Act?

10 MS. MILLER: I'm not sure that I read

11 it as in-depth as any lawyer would have. So I'm

12 also not a lawyer. We have legal counsel that

13 advises DCPL. So our lawyers may have their own

14 opinions.

15 MR. BYRNE: Okay. Oh we'll maybe have

16 a chance to ask them some -- okay.

17 MS. FERSTER: My next witness is Jim

18 Schulman, and he is -- we are asking that he be

19 qualified as an expert in architecture.

20 MS. BROWN: Just a quick question. I

21 believe he testified at the last Mayor's Agent,

22 or am I mistaken?

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1 MR. BYRNE: He did, in one of the, I

2 forget, '14 or '15.

3 MS. BROWN: Were you qualified as an

4 expert at that point?

5 MR. SCHULMAN: No, I don't think I was

6 qualified as an expert, but maybe I'm wrong.

7 MS. FERSTER: Yeah. I don't recall

8 that you were qualified as an expert at that

9 point.

10 MR. SCHULMAN: So shall I proceed?

11 MR. BYRNE: Well I think we have --

12 MS. FERSTER: I think we have to deal

13 with your qualifications.

14 MR. BYRNE: Yeah, okay. I'll let Ms.

15 Brown do that. And just in what is he being

16 proffered as an expert in?

17 MS. FERSTER: He's an architect.

18 MR. BYRNE: Okay, as an architect.

19 MS. BROWN: And is it general

20 architecture? Is there a specific focus?

21 MR. SCHULMAN: No.

22 (Pause.)

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1 MS. BROWN: I do just have a couple of

2 clarifying questions. Mr. Schulman, I don't see

3 your education on the resume.

4 MR. SCHULMAN: Oh. I'm surprised.

5 Yeah, Master's of Architecture at the University

6 of Minnesota.

7 MS. BROWN: Oh, there it is. I'm

8 sorry. I thought that those were courses that

9 you were teaching. Thank you.

10 MR. SCHULMAN: And I'm registered in

11 DC and Maryland.

12 MS. BROWN: And what type of buildings

13 have you designed?

14 MR. SCHULMAN: Residential, commercial

15 and institutional?

16 MS. BROWN: And have you done a mix of

17 those types of buildings?

18 MR. SCHULMAN: Yes.

19 MS. BROWN: And what kind of large

20 projects have you worked on?

21 MR. SCHULMAN: I admittedly have not

22 worked on huge projects. The biggest building I

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1 think I worked on was Building No. 6 at the Navy

2 Yard, six stories, several football fields.

3 MS. BROWN: And when you say you

4 worked on it, were you the lead architect?

5 MR. SCHULMAN: Of that -- of the

6 renovations occurring there, yes.

7 MS. BROWN: Of the renovations, but

8 not the new construction?

9 MR. SCHULMAN: Yeah. It's an existing

10 building.

11 MS. BROWN: Right, right, and what

12 about new construction?

13 MR. SCHULMAN: My role here as an

14 architect is more to comment, to make critique

15 and so the two projects I'm working on now of new

16 construction are one for the Town of Cottage

17 City, a building for them and for an Italian

18 architect and sculptor by the name of Davide

19 Prete, who's building an artist studio in Mount

20 Rainier.

21 MS. BROWN: Okay, and have you had any

22 experience in adapting for use of historic sites

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1 and historic buildings, new construction within a

2 historic site?

3 MR. SCHULMAN: I have worked on

4 projects in the Navy Yard, in Georgetown Historic

5 District, the Capitol Hill Historic District.

6 MS. BROWN: Has that been new

7 construction or just --

8 MR. SCHULMAN: Not from the ground up,

9 because they're dealing with historic buildings.

10 MS. BROWN: Have those been

11 residential projects?

12 MR. SCHULMAN: Residential and

13 commercial.

14 MS. BROWN: And is what, additions to

15 residential buildings?

16 MR. SCHULMAN: Yes.

17 MS. BROWN: And then additions to

18 existing commercial buildings?

19 MR. SCHULMAN: Yes.

20 MS. BROWN: And do you appear before

21 the HPRB?

22 MR. SCHULMAN: I have been before the

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1 HPRB. The last time dealt with a church in

2 Georgetown that was seeking to add a handicapped

3 ramp.

4 MS. BROWN: And the Mayor's Agent

5 hearing was the last time you testified before

6 the Mayor's Agent in this case, or have you

7 testified in other cases before the Mayor's

8 Agent?

9 MR. SCHULMAN: No. This is the only

10 case I've -- before which I've testified, and

11 it's the first time I've testified as an expert

12 witness, I will be.

13 MS. BROWN: In this case?

14 MR. SCHULMAN: Yes.

15 MS. BROWN: Have you been an expert --

16 have you been qualified as an expert in other

17 cases?

18 MR. SCHULMAN: No.

19 MS. BROWN: So I think I'm fine with

20 general qualifications as to architecture, but

21 with the specifics to large multi-purpose

22 commercial sites with historic preservation, I

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1 don't think there's qualifications there.

2 MS. FERSTER: We didn't offer him as

3 an expert in large historic sites. We offered

4 him as an architect. He is a licensed architect.

5 He's got the requisite professional degrees and

6 the requisite professional experience, and I

7 think he should just be qualified as an

8 architect.

9 MR. BYRNE: As an architect, right,

10 and yes. You are qualified.

11 MR. SCHULMAN: Good afternoon, Hearing

12 Officer Byrne. My name is Jim Schulman. I'm a

13 registered architect based here in Washington,

14 D.C. I recently finished serving six years on

15 the board of directors of the Building Materials

16 Reuse Association, a national non-profit

17 dedicated to promoting reuse and recycling in

18 construction. I was an invited speaker on reuse

19 and sustainable design issues at the 2017

20 American Institute of Architects Annual

21 Conference of Architecture in Orlando.

22 Among other preservation efforts, I

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1 was involved with the National Park Service

2 restoration of the Harry S. Truman Home in

3 Independence, Missouri, various upgrades to

4 historic properties that I mentioned at the Navy

5 Yard, and worked on residential and institutional

6 projects in the Capitol and Georgetown Historic

7 Districts.

8 I will speak today to issues

9 identified by the D.C. Court of Appeals that

10 you're well aware of, mainly the focus is, and

11 I'm going to jump ahead, the focus is on this

12 question of exemplary architecture. So I'm going

13 to jump to the first indent on page two.

14 I maintain that, despite its

15 significant evolution. The VMP project

16 objectively falls short of being architecturally

17 exemplary. It lacks distinction and certainly

18 does not deserve the moniker of "special merit"

19 related to the following:

20 Its failure to embrace the site's

21 potential as a public attraction; the prosaic

22 nature of the individual building designs; the

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1 failure to creatively incorporate more of the

2 underground cells; the domination of the surface

3 historic features by the scale of the towers

4 surrounding certainly the north service court;

5 the lack of respect the project gives to historic

6 viewsheds; and a missed opportunity to create a

7 real transit hub instead of an underground

8 parking lot.

9 Having served on the Design Oversight

10 Committee for the 11th Street Bridge Park

11 Project, I can comfortably claim that the design

12 of the proposed development at the McMillan sand

13 filtration plant fails to come close to any of

14 the creativity or innovation exhibited in any of

15 the designs of the bridge park competitors, much

16 less the finalists, as it ought to have for such

17 a large and prominent site.

18 A logical precursor to both the 11th

19 Street bridge park and the McMillan sand

20 filtration plant is the Highline in New York

21 City. This ribbon of obsolete and abandoned

22 infrastructure was long perceived as an eyesore

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1 by many New Yorkers, but creative vision and

2 persistence on the part of environmental and

3 historic preservation advocates led to the

4 adaptive reuse of that elevated rail line and the

5 ultimate economic revitalization of lower

6 Manhattan after the attack on September 11th,

7 2001.

8 McMillan Park could be D.C.'s

9 highline, an international attraction if the

10 Mayor's Agent saw fit to send the District

11 government back to the drawing board, perhaps via

12 a public design competition, with stress on the

13 competitive and Preservation aspects of such a

14 process.

15 With respect to the design of the

16 individual buildings, I find that each building

17 type is similar to background meaning less than

18 distinctive architecture built elsewhere by

19 members of the VMP team. The multi-family

20 building slated for McMillan Park are not unlike

21 apartments Jair Lynch Associates built in

22 Chinatown, and I'm speaking now of the Anthology

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1 Apartments that you see depicted.

2 The Trammell Crow developed medical

3 office towers bear a resemblance to the Diridon

4 Station they designed in San Jose, and the

5 townhouse blocks being developed by EYA appear

6 similar to a project they produced in Bethesda,

7 in this case Montgomery Townhouses.

8 While I do not fault the developer

9 team or their designers for a modicum of

10 repetition, and I do acknowledge that on other

11 projects these firms and the designers have

12 separately produced strong designs, the fact is

13 that the design of the current McMillan project

14 fails to rise to the level of exemplary

15 architecture, because the components of the

16 project are individually innocuous and they're

17 uncomfortably and non-integrally sandwiched

18 together to achieve a pecuniary balance, not an

19 organic urban design.

20 VMP does not appear to argue that the

21 buildings are exemplary architecture in the same

22 way as other innovative and ground-breaking

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1 architectural commissions, such as the National

2 Museum of African-American History and Culture or

3 the 11th Street Bridge Park. Instead, its claim

4 appears to be that the buildings constitute

5 exemplary Architecture only in the context of the

6 overall design in the approved master plan

7 because it uses a unified color pallet across

8 varying building types, selected to complement

9 the historic elements on the site.

10 However, lead designer Matthew Bell

11 confuses an effort to achieve design

12 compatibility, which is required of all new

13 construction within a historic area with special

14 merit, which requires more than mere design

15 compatibility.

16 Any planned unit development ought to

17 exhibit harmonious relationships between its

18 various component elements, but not at the

19 expense of significant historic features at a

20 site meriting listing on the National Register of

21 Historic Buildings or a landmark building.

22 The fact that the individual buildings

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1 are designed only to a LEED Silver level, the

2 minimum standard required of property developed

3 under the LDA with the District of Columbia,

4 further undermines any claim that these buildings

5 are either exemplary or of special merit. There

6 are already 247 projects in the District of

7 Columbia that have achieved a LEED Silver rating,

8 one rating above the base level of certified.

9 So Silver ratings appear to be more a

10 dime a dozen than a function of special merit.

11 Furthermore, VMP has testified there will

12 apparently not even be -- include seeking actual

13 LEED certification of the buildings.

14 To my mind, the most emblematic lack

15 of design ingenuity is embedded in the

16 developer's failure to consider the repair and

17 reconstruction of the underground sand filtration

18 chambers.

19 They were so eager to build heavy and

20 high that they did not comprehend that it is

21 possible to develop a project that would

22 incorporate those cells that have sustained only

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1 minor deterioration, which VMP's structural

2 engineer indicated could be adaptively reused

3 without any overbuild, without harming the

4 historic integrity of these unique structures.

5 Fortunately, the cells that are in the

6 best condition are located near the north surface

7 court, where it is most important to preserve

8 open space, as has been testified by others.

9 Locating a portion of the retail within these

10 cells would accomplish the developer's stated

11 desire to locate the retail near the medical

12 office building while preserving more cells and

13 some of the site's key spatial organization, the

14 historic open space surrounding the service

15 courts.

16 As the prior testimony of Miriam

17 Gusevitch demonstrates, adaptively reusing the

18 underground cells as retail spaces, as has been

19 done with respect to other extraordinary below

20 grade historic spaces found all over Europe and

21 I'm familiar with ones in Italy and Turkey, they

22 could be -- that could make it a design of

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1 exemplary architecture, worthy of the special

2 merit designation.

3 The insensitivity to the historic

4 surface elements of the service courts in terms

5 of how they will be overshadowed and dominated by

6 the proposed medical towers renders them

7 Disneyesque toy features of a strange landscape.

8 It is almost as if the dissonant scale

9 relationship was modeled after the disturbing

10 dream sequences of the protagonist in the

11 dystopian movie Brazil.

12 The same insensitivity applies to the

13 minor concessions the design of the project

14 accords to the historic viewsheds from the

15 Lincoln Cottage to the north. Instead of

16 reducing building heights, the developer has

17 created a narrow band of space for bits of

18 downtown D.C. to be viewed between central

19 business-scaled towers.

20 In terms of missed opportunities, if

21 DMPED and its development team really wanted to

22 create a mixed use project that was truly

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1 sustainable by dint of being free of auto

2 dependency, they could have developed a real

3 transit hub with built infrastructure

4 incorporated in the limited areas where the

5 underground caverns are irreparable for true

6 transit multi-modalism, and I'll add that what

7 has been proposed, however, paves a historic

8 paradise to put up a parking lot.

9 Lastly, as a caboose in a veritable

10 train of missed opportunities, I will note the

11 disappearance in the last year's project redesign

12 of the best design element that I'd seen to date,

13 the cascading fountains and pools within the

14 south service court that were evocative of the

15 water purifying function of the sand filtration

16 plant itself.

17 I thank you again for this opportunity

18 to present my views.

19 MR. BYRNE: Thank you. Ms. Ferster.

20 MS. FERSTER: No. I have no other

21 questions.

22 MR. BYRNE: All right. Ms. Brown.

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1 MS. BROWN: Mr. Schulman, on page two

2 of your testimony you claim that the project

3 fails to embrace the site's potential as a public

4 attraction. Are you aware of the extensive

5 walking museum and arts program that celebrates

6 the site?

7 MR. SCHULMAN: I actually did see

8 that, and I think that's a good idea, and but

9 it's a pale shadow of what it could be. It's

10 kind of like trying to do with a cell phone what

11 you could be doing with actual built

12 infrastructure. And I'm not sure that that would

13 attract the kind of international audience that I

14 think the site could generate if there were more

15 focus on the historic features of the site.

16 MS. BROWN: Have you done a study to

17 that effect?

18 MR. SCHULMAN: No, I have not.

19 MS. BROWN: You mention on page two

20 again about the 11th Street Bridge Park and the

21 creativity and innovation exhibited by those

22 designs. Is that a historic landmark?

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1 MR. SCHULMAN: No, it is not. It will

2 be when it's built.

3 MS. BROWN: Designed by the Historic

4 Preservation Review Board?

5 MR. SCHULMAN: I think -- I'm just

6 speculating, that if and when it gets built, it

7 will be as important to Washington as the

8 Washington Monument.

9 MS. BROWN: You have this comparison

10 picture on page three of the McMillan Parcel 2

11 multi-family building and the anthology. Who

12 were the architects for both those projects?

13 MR. SCHULMAN: I don't know, to be

14 honest with you. I didn't research that and I

15 apologize for that.

16 MS. BROWN: And do you know the

17 architects of the McMillan medical tower and

18 other building that you have there?

19 MR. SCHULMAN: I presume that there

20 are some members of the existing team, but I

21 don't know that for sure.

22 MS. BROWN: On page five of your

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1 testimony, the middle paragraph, you talk about

2 the extent of demolition and the idea that the

3 project does not adaptively reuse enough of the

4 cells. If there were less demolition, could the

5 project achieve the same public benefits?

6 MS. FERSTER: I think that goes

7 outside the scope of his testimony.

8 MS. BROWN: I think it's right there

9 on page five, the center paragraph, and we're

10 here dealing with the remand issues and that it's

11 a specific remand issue.

12 MS. FERSTER: Right. Which sentence

13 are you talking about, the adaptive reuse?

14 MR. SCHULMAN: The second sentence

15 maybe.

16 (Simultaneous speaking.)

17 MS. BROWN: "They were so eager to

18 build heavy and high that they did not comprehend

19 that it was possible to develop a project that

20 would incorporate those cells that have sustained

21 only minor deterioration."

22 MR. SCHULMAN: Yes, that's it.

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1 MS. FERSTER: And what was your

2 question again?

3 MS. BROWN: My question is if those

4 cells are preserved, can you still get the same

5 level of public benefits?

6 MS. FERSTER: And I would say that it

7 goes beyond the scope of his testimony as it --

8 in that sentence.

9 (Simultaneous speaking.)

10 MS. BROWN: That argument is that --

11 I hear what you're saying, thank you. And my

12 argument is that because we're dealing with

13 remand issues specifically identified by the

14 Court of Appeals, that it goes -- his testimony

15 needs to be addressing that.

16 MS. FERSTER: But I would suggest that

17 in the last hearing, we had extensive objections

18 on my part sustained, based on the fact that the

19 question went to the issues involved in the

20 remand by the Court of Appeals, but went beyond

21 the four corners of their testimony.

22 And you know Mr. Schulman's testimony

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1 goes to the question of exemplary architecture

2 and not, you know, whether or not there is a

3 special -- the benefits can be provided under a

4 different arrangement. So I would again say his

5 -- that question does go beyond the scope of his

6 direct testimony.

7 MR. BYRNE: I don't think it does,

8 because as I read it, he's suggesting that they

9 were so eager to build heavy and high, which

10 suggests basically a desire for more bulk that

11 they didn't -- that they were motivated by that,

12 so they didn't consider about how to incorporate

13 more cells. The question is about the public

14 benefits that would come from building at the

15 scale that they're building, as I understand the

16 question.

17 MS. FERSTER: Which is beyond the

18 scope of this testimony.

19 MR. BYRNE: Well, I'm going to let him

20 answer the question. I've given my ruling.

21 MR. SCHULMAN: Could you repeat --

22 MS. BROWN: Yes, I'll be glad to.

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1 MR. SCHULMAN: Okay.

2 MS. BROWN: If there were less

3 demolition on the site, particularly with the two

4 cells that are in the best condition, relative

5 condition, would you be able -- would the project

6 be able to achieve the same level of public

7 benefits that are being offered today?

8 MR. SCHULMAN: Mr. Bell is probably in

9 a better position to answer that than I am. But

10 if by public benefits you mean sort of all the

11 things that were laid out to comply with the

12 Comprehensive Plan it's -- I would say it would

13 be a better project and more that is preserved.

14 But it needs some significant redesign, and it

15 would benefit from a new set of eyes.

16 MS. BROWN: And you're aware that the

17 D.C. Court of Appeals said that historic

18 preservation benefits are not part of the special

19 merit test?

20 MS. FERSTER: Objection. He's not

21 testifying about what the Court of Appeals did or

22 did not say.

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1 MR. BYRNE: Yeah, sustained,

2 sustained.

3 MS. BROWN: Were you present in 2013-

4 2014, I think it was 2014, for the Street Sense

5 testimony from Bruce Leonard?

6 MR. SCHULMAN: I don't recall.

7 MS. BROWN: About the ability to reuse

8 the underground cells for retail purposes?

9 MR. SCHULMAN: This isn't a structural

10 engineering question.

11 MS. BROWN: No, and you suggested that

12 the underground cells could be used for retail

13 purposes, and I'm asking if you were -- I know

14 that you testified at the previous Mayor's Agent

15 demolition hearing, and I'm asking if you were

16 present for the testimony of Bruce Leonard from

17 Street Sense on that very issue?

18 MR. SCHULMAN: I probably was. I

19 don't recall all his testimony. I do admit that

20 underground property is not as auspicious for

21 retail purposes as above ground, but the examples

22 I've seen from Europe show that it can be done

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1 and can be done in a very attractive way.

2 MS. BROWN: And did you -- let me see

3 how to phrase this. The structural engineering

4 report by Silman indicated that there would need

5 to be such structural intervention in the

6 underground cells, that in addition to the -- I

7 think it's every 14 feet you have a column, and

8 then you would have to interject --

9 MR. SCHULMAN: That's in an over --

10 MS. FERSTER: Let her finish her

11 question please.

12 MR. SCHULMAN: Oh sure, sorry.

13 MS. BROWN: And then you'd have to

14 interject another column in the middle of the

15 vaults in order to support that, and how does

16 that affect retail space in your professional

17 opinion?

18 MS. FERSTER: Okay. I'm not sure.

19 Are you asking him to testify about the

20 structural issues?

21 MS. BROWN: I'm asking if the premise

22 is true, that you have 14 foot grid columns in

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1 the cells, and that they have to be reinforced

2 with another column dropped in there, how

3 effective is that as retail space, in your

4 professional opinion?

5 MR. SCHULMAN: I would say that you're

6 presuming an overbuild situation, and I was

7 testifying to one where there might not be an

8 overbuild.

9 MS. BROWN: So it's your testimony

10 that none of that intervention would need to

11 happen in order to use it as retail space?

12 MR. SCHULMAN: That's correct.

13 MS. BROWN: And what about HVAC,

14 lighting and other equipment that would need to

15 go into the cell? How would that be

16 accomplished?

17 MR. SCHULMAN: Well, that's a separate

18 question. From a structural point of view, and

19 I'm not a structural engineer, but I did hear the

20 expert testimony that was given by FOMP's

21 engineer before you, and I was impressed --

22 MS. BROWN: Who is FOMP?

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1 MR. BYRNE: Friends of -- this is in

2 the prior, in 2014?

3 MR. SCHULMAN: Yeah, and I was

4 impressed by the fact that there are these wraps

5 that you can put around existing concrete

6 columns, that structurally tensilely tighten them

7 to a position where they -- in other words you

8 don't have to necessarily put columns in. There

9 are ways of -- there are structural techniques

10 that can be used, that are fairly innocuous and

11 not easily perceivable short of having to insert

12 columns in the 14 foot.

13 MS. BROWN: Were you equally struck by

14 the rebuttal testimony of the Silman engineers,

15 who said that that wasn't feasible?

16 MR. SCHULMAN: I must not have been.

17 MS. BROWN: Those are all my

18 questions.

19 MR. BYRNE: Okay, let me see.

20 MS. BROWN: I'm sorry. I do have one

21 more question. Were you present at the HPRB

22 meetings, where the HPRB endorsed the design for

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1 the project?

2 MR. SCHULMAN: I think I was at some

3 of them, yes.

4 MS. BROWN: And you disagree with the

5 HPRB's assessment of the project?

6 MR. SCHULMAN: I feel like they made

7 a bad decision.

8 MS. BROWN: Okay. So you disagree

9 with the professionals on the HPRB on that?

10 MR. SCHULMAN: I agree with the

11 professionals who identified that this doesn't

12 meet the Interior Department's standards.

13 MS. BROWN: Are you claiming that

14 there was testimony to that effect?

15 MS. FERSTER: You know, I'm going to

16 ask you to clarify, because we have any number of

17 HPRB decisions. We have the decision finding,

18 specifically finding that neither the demolition

19 or the subdivision was consistent with the

20 purposes of the Act, and then we have the

21 decision on the master plan, which is probably

22 the one you're referring to but I don't know,

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1 where it simply found that the architecture was

2 coherent and --

3 MS. BROWN: Yes, that was a very

4 simple --

5 MS. FERSTER: Complimentary language

6 or whatever. So which --

7 MS. BROWN: And I am asking about the

8 master plan, and I am also asking about whether

9 or not he heard testimony as to the Secretary of

10 Interior's standards from the Historic

11 Preservation Review Board?

12 MR. SCHULMAN: I did hear some of that

13 testimony, yes.

14 MS. BROWN: You're saying that that

15 existed?

16 MR. SCHULMAN: (No audible response)

17 MR. BYRNE: Okay.

18 MS. BROWN: Thank you.

19 MR. BYRNE: So what -- I mean at the

20 risk of bringing up the issue of gentrification,

21 which of course I'm not supposed to incorporate

22 that, what do you -- when you say "a real transit

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1 hub," what are you thinking of?

2 MR. SCHULMAN: Well, in this

3 testimony, I was referring to actual underground

4 transit, and I recognize that an expansion of the

5 Metro system is probably not in the cards. But I

6 don't think just a shuttle bus alone is going to

7 solve what is going to be a huge potential

8 problem, and so I was kind of saying gee, there's

9 a way to maybe seamlessly get transit, even if it

10 is a City bus, to interact in a better way with

11 this site.

12 But my sense is that the whole

13 question of transportation infrastructure was an

14 add-on. It was sort of a, kind of we're going to

15 design this project and then we'll add some timed

16 lights or something to deal with our

17 transportation question. And so I don't think

18 that it was handled in an integrated way and an

19 exemplary project would have, in my view.

20 MR. BYRNE: Would have extended a

21 light rail system --

22 MR. SCHULMAN: It's conceivable, or as

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1 I say, have the City buses actually come under

2 the site.

3 MR. BYRNE: Come under the site into

4 the parking garage?

5 MR. SCHULMAN: Just like right now

6 when you take the Metro and you want to get on a

7 bus at the Bethesda Metro Station, you don't have

8 to go above ground.

9 MR. BYRNE: Okay. Just wanted to

10 clarify.

11 MS. FERSTER: I have redirect

12 question.

13 MR. BYRNE: Okay.

14 MS. FERSTER: So you testified that

15 you disagreed basically with the HPRB's decision

16 when it approved the master plan based on its,

17 you know, assumption that if the Mayor's Agent

18 approves this as a project of special merit, then

19 the find the architecture sort of coherent and

20 some other complimentary language. You disagree

21 with that.

22 So presumably you're somewhat familiar

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1 with that document? Is it anywhere in the

2 document did the HPRB find that the architecture

3 was exemplary architecture?

4 MR. SCHULMAN: Now that you mention

5 it, I do not.

6 MS. FERSTER: Okay, thank you.

7 MS. BROWN: Redirect. Recross, sorry.

8 Following up on that question, do you know one

9 way or the other whether the HPRB is allowed to

10 take into consideration special merit features of

11 the project and rule on special merit?

12 MR. SCHULMAN: I would think that

13 would be the Mayor's Agent's role.

14 MS. BROWN: Thank you.

15 MR. BYRNE: All right, Mr. Otten.

16 MR. OTTEN: Mr. Schulman, you were

17 just talking about shuttle buses and

18 transportation issues. Are you familiar with the

19 proposed bus line cuts in the District or

20 particularly around the site?

21 MR. SCHULMAN: I certainly have

22 friends who are worried about it, yes.

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1 MR. OTTEN: Thank you.

2 MR. BYRNE: Okay. I guess we could --

3 are we ready to move on to additional witnesses?

4 Thank you very much.

5 MR. SCHULMAN: Thank you.

6 (Witness excused.)

7 MR. BYRNE: Okay.

8 MS. BROWN: If the witnesses have

9 copies of their testimony, if it's possible to

10 get that now. And how about Ms. Barragan? Thank

11 you.

12 (Whereupon, the above-entitled matter

13 went off the record at 3:22 p.m. and resumed at

14 3:26 p.m.)

15 (Pause.)

16 MR. BYRNE: Okay, all right. Thank

17 you for being here. If you'd just please raise

18 your right hand.

19 (Witness sworn.)

20 MR. BYRNE: Thank you. You may

21 proceed.

22 MS. FERSTER: Okay. We're going to

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1 start with Claudia Barragan, and hopefully while

2 we're dealing with her qualification as an

3 expert, her presentation will be loaded on the

4 screen.

5 But we're seeking to qualify Claudia

6 Barragan as a planner based on her experience and

7 education. She was qualified by the Zoning

8 Commission in the McMillan proceeding before the

9 Zoning Commission as a planner, an expert as a

10 planner and so we ask that she be qualified by

11 you as well.

12 MS. BROWN: I don't have any

13 objections. Well, I do have one clarification

14 question. As an urban planner, how many master

15 plans have involved historic preservation large

16 sites?

17 MS. BARRAGAN: Specifically St.

18 Elizabeth's, west campus and east campus. That's

19 350 acres of historic land.

20 MS. BROWN: So my question is did you

21 start -- when did you start working on the --

22 when does the master plan, when was it initiated

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1 and were you involved from the initial --

2 MS. BARRAGAN: 2003 all the way to

3 2010. I was the sole planner that worked on

4 both.

5 MS. BROWN: Thank you.

6 MR. BYRNE: Okay, yes. I'm happy to

7 --

8 MS. FERSTER: So is she qualified?

9 MR. BYRNE: She is.

10 MS. BARRAGAN: Thank you so much. I

11 appreciate this.

12 All right. So my name is Claudia

13 Barragan. I am here specifically to talk about

14 urban planning and policy, the application of

15 regulations, and also as it relates to the

16 experiences, based on my experience of what the

17 planning process is usually like in terms of

18 planners providing consulting services to

19 developers.

20 So in the case of McMillan, the

21 developing team, Vision McMillan Partners, are

22 using conventional land planning design special

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1 features to receive special merit when it is not

2 warranted nor justified as a function of historic

3 preservation development.

4 The evidence presented by VMP does not

5 demonstrate that the demolition of two-thirds of

6 the historic cells, most of portals and the

7 destruction of the site's key historic features

8 are necessary in the public interest by virtue of

9 being consistent with the purpose of the

10 Preservation Act.

11 The project is not consistent with the

12 purposes of the Preservation Act because, as

13 presented in the hearings, VMP has not provided

14 sufficient evidence that their design solutions

15 for the project will enhance this landmark site

16 and adapt it for public use.

17 Merely refurbishing one cell and the

18 silos, and adding 30 plus buildings through

19 demolishing the rest of the historic site is not

20 adaptive design and certainly not adaptive reuse.

21 Therefore, it does not constitute special merit.

22 In my professional assertion, the land planning

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1 process, especially during design, is filled with

2 alternative design options, one of which is

3 always minimal existing site disturbance.

4 The programming of elements is

5 designed in isolation with each section being

6 tested in the collectively layout. Thus, we

7 designers, we provide our clients with various

8 alternatives for the plan. The applicant failed

9 at showing the feasibility analysis of those

10 multiple alternative scenarios at each yearly

11 mark of the plan.

12 Per the Comprehensive Plan, public

13 input mandates that the community also has a say

14 about those alternatives and reviews them.

15 Adaptive reuse of a historic site can and must be

16 master planned and built using a phased out

17 approach. This approach was used in master

18 planning in adaptively reusing the west and east

19 campus of St. Elizabeth's, specifically the site

20 and the buildings.

21 In the case of the west campus, a

22 historically landmarked federal site, various

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1 subdivisions of the plan were designed and

2 implemented using an adaptive reuse renovation

3 and rehabilitation schedule which lasted for

4 about ten years, and it's ongoing today. St.

5 Elizabeth's East exemplifies how the City

6 government owned land, through abandonment, can

7 lead to the deterioration of historic sites, its

8 buildings and ultimately demolishing them due to

9 value engineering policies.

10 Similarly, the cells and historic

11 elements of McMillan, as assessed by the

12 developers, have been allowed to deteriorate.

13 The design solution cannot be to tear down

14 something that was purposely made derelict.

15 It was certainly not allowed by the

16 federal and city regulation agencies, who

17 reviewed St. Elizabeth's west campus, as over 60

18 percent of the site and buildings were preserved,

19 as 350 acres in the case of the west campus and

20 it was 180 acres of historically landmarked site,

21 buildings, trees, sidewalks. Everything in that

22 site was historic, and it was all preserved.

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1 VMP's plan cannot be considered a

2 project with special merit based on the specific

3 features of land planning. The project's

4 exemplary architecture, at times co-existing with

5 the design, land use planning features and

6 community benefits individually or collective do

7 not make this project of special merit.

8 In the case of the sustainable design

9 elements, the existing conditions in the historic

10 site are not being exemplified in the character

11 of the new development. The tripartite layout,

12 while more reminiscing of existing open space

13 site, is at the very least 75 percent impervious

14 land, built on a water filtration site.

15 Unless the developers plan to use

16 permeable paving throughout the entire site, then

17 it would actually be sustainable. Meeting these

18 standard green building requirements does not

19 warrant special merit, as prior -- as my

20 colleagues have mentioned, that in accordance

21 with the District's Green Building Act, all

22 publicly funded non-residential projects and

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1 privately owned projects must meet leadership and

2 energy and environmental design, as well as

3 attempt at using LEED for new communities and for

4 neighborhood, LEED for Neighborhood Development.

5 In addition, interior constructions of

6 a mixed use space in a residential project shall

7 be designed and constructed to meet or exceed one

8 or more of the applicable LEED standards, as at

9 the certified levels. So basically what we're

10 saying is is that LEED standards, meeting them

11 does not warrant a special merit.

12 Specifically also at this particular

13 site, we have heard from developers mention that

14 bicycle parking and transit accessibility are all

15 special merit. In reality, those are part of

16 other regulatory processes that are already

17 standard within the City, specifically providing

18 bike parking, transit connections, etcetera,

19 etcetera.

20 If the project is truly aimed at

21 reaching special merit and LEED and sustainable

22 development, VMP would solely aim for platinum

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1 buildings and 100 compliance with the LEED for

2 Neighborhood Development, including historic

3 preservation strategies which include a

4 reclaiming of existing site materials and

5 landscape, and none of that was actually

6 proposed.

7 One of the big important parts that I

8 wanted to talk about as far as the planned uses

9 was the new state of the art health care

10 facility. The health care facility program for

11 the site does not constitute a feature of, nor

12 use that warrants special merit as defined by the

13 preservation law.

14 During visibility and programming, we

15 urban planning professionals analyze the

16 accessibility of citywide services at both the

17 regional and localized levels. The applicant

18 failed at providing geoanalytical evidence that

19 warrants a health care facility of this site as a

20 special planning feature, a special merit for

21 preservation.

22 The justification offered for this

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1 special feature is not based on a thorough

2 understanding of citywide spatial accessibility

3 of health care facilities, as stated by the

4 applicant. I'm provided three studies that

5 corroborate that while the District has an

6 elevated supply of primary provider centers

7 compared to the national average, large areas of

8 predominantly African-American residents fall far

9 below the standards for accessibility to PCPS,

10 which stands for primary care provider centers.

11 Furthermore, special accessibility of

12 health care facilities is determined as a

13 function and a measure of proximity, travel

14 impedance to the nearest provider and supply

15 level with border areas is also included. On all

16 four measurements, this location is not a high

17 priority, as evidenced by the provided geospatial

18 and analytical graphics that I will show in a

19 second.

20 Impedance to nearest provider also

21 considers that access to health care facilities

22 is not solely defined as a matter of facility

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1 shortage, but mostly as medical professional

2 shortage in specific areas. Once again, medical

3 professional shortage of providers based on

4 location is mostly found in under-served

5 communities east of the river. The recent issues

6 at United Medical Center proves this as a fact.

7 It is important to note that existing

8 under-served communities of color along the

9 northern part of North Capitol and Georgia Avenue

10 in Ward 4, several miles north of the site there

11 is an actual vast need and a shortage of

12 pediatric care.

13 The applicant contends that health

14 care use is a result of the City's population

15 increase by approximately 100,000 residents. But

16 they fail to contend that lack of health care

17 access is an issue for the existing 400,000

18 District residents that are black and brown.

19 That's about 65 percent of the population, who

20 mostly live east of the Anacostia River and not

21 within 200 feet of McMillan Park.

22 The construction of planning features

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1 such as high end class office residential

2 buildings which are prized mostly for the high to

3 middle income class, does not warrant special

4 merit and preservation. Developer-driven new

5 community planning has two distinct roles.

6 One is to meet an established

7 profitable investment strategy through property

8 type classification, meaning high end

9 development. The other is to meet regulatory

10 building code and development standard

11 regulations. The land planning strategies to

12 reach these goals are often implicitly used as

13 special features and community benefits, and that

14 should not be the case.

15 The applicant is essentially asking

16 for special merit because high end special

17 features equivalent to industry accepted

18 parameters of desired building and financing

19 property class type. These property classes

20 represent a subjective quality rating of social

21 class. High end development, community benefits

22 such as community center with WiFi public access

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1 and active public open space, a community market,

2 outdoor café, art installations, healing gardens,

3 water features and small retail selling high end

4 products should not be granted special merit for

5 the demolition of historic and heritage culture.

6 In fact, industry insiders and

7 regulators know developers use planning features

8 including rental ownership, building high end

9 building finishes, green efficiency standards,

10 building amenities, transit accessibility as

11 market perception features that measure and

12 qualifies property and therefore social class.

13 Moreover, to investors property class

14 represents their different level of risk and

15 return. It is an investment strategy, not a

16 special feature, not worthy of special merit.

17 The property type classification also indicates

18 the competitive ability of each building to

19 attract similar type tenants, which leads to

20 segregation.

21 In conclusion, the evidence I present

22 today to the Mayor's Agent demonstrates that VMP

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1 is not providing sufficient clarity on the merits

2 to approve this development as what it should be.

3 Specifically as well within the planning and

4 design adaptive reuse development that heralds

5 equality and internal benefits for the community

6 in a historically landmarked site.

7 So the first exhibit that you're

8 seeing specifically shows -- I went through a

9 quick study of three different geospatial

10 analyses of primary care facilities. This one

11 dates back to 2013, and what I'm contending here

12 is that there's been various scientific studies,

13 most of them done here in the District, which is

14 real interesting, using spatial data, GIS

15 analysis that shows that where all the red areas

16 is where there are actually more children and

17 fewer primary care facilities.

18 That spot all the way up to the north

19 part of the District, that's in Ward 4, and

20 encompasses the northern part of North Capitol

21 Street and Georgia Avenue.

22 (Pause.)

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1 MS. BARRAGAN: This is another one,

2 another study back in 2009 that showed the same

3 inference. The difference here is that they're

4 actually not all of the health facilities that

5 are available. So as you can see in Ward 8 and

6 Ward 7, anywhere east of the river inclusive of

7 across the river near East Capitol Street,

8 there's only one hospital.

9 Once again, this was done in 2006,

10 this particular study, and it shows the same

11 case. In fact, the areas in blue in this map, on

12 the map on the left, shows that there's actually

13 a low percentage of a population of children, and

14 this particular map also looked at urgent care,

15 the access of non-urgent care visits and also

16 urgent care facilities.

17 So it showed that the hot areas where

18 children and their parents usually use urgent

19 care are in those hot spots, and predominantly in

20 the eastern side of the city, which is

21 predominantly African-American and brown.

22 Meanwhile, the exhibit -- on Exhibit 4, there is

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1 a big circle right there.

2 That specifically shows the area of

3 McMillan, where you have three different

4 hospitals all converging in one area. You have

5 the Children's Hospital Medical Center in that

6 particular area, and that's why it's highly

7 served. So this last -- everything in all of the

8 graphs in black and white, they date back to

9 2004.

10 So I've basically shown that since

11 2004, almost going on two decades, scientists and

12 planners have been saying the same thing. We

13 don't need anymore primary care health around

14 this part of town. Where it's really needed is

15 east of the river.

16 MR. BYRNE: All right, thank you.

17 MS. FERSTER: No questions. No

18 additional questions.

19 MR. BYRNE: Okay. Ms. Brown.

20 MS. BROWN: Yeah. I have a couple.

21 I just want to make sure I have all the correct

22 exhibits. Would you mind running through the

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1 slides again. There's one that had question

2 marks on it and the black and white copy does not

3 seem to be matching up to what I saw in color.

4 MS. BARRAGAN: Yes, because of the

5 fact that I had to use this different version, I

6 couldn't use the PDF. But it shows every single

7 incident in here.

8 (Simultaneous speaking.)

9 MS. BROWN: Could we go back to

10 exhibit -- yeah. Can we just -- I just want to

11 make sure that I match them up. Exhibit 1, I can

12 recognize that. Now go to Exhibit 2. Okay,

13 yeah. It matches up. I'm good, thank you, and

14 then I do have a couple of other questions.

15 In your testimony on page one, your

16 first footnote, what is that?

17 MS. BARRAGAN: Yes. So specifically

18 I wanted to make sure that LEED buildings and the

19 LEED standards available where they -- where

20 historic preservation meets LEED buildings. I

21 found that specific report on sustainability and

22 historic preservation, looking at how do you

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1 combine the two of them and --

2 MS. BROWN: I'm sorry to interrupt

3 you. My question's a lot simpler. I just wanted

4 to understand the citation and what it is.

5 MS. FERSTER: Yeah. All her citations

6 are on the -- at the end, end of her written

7 testimony, which says "exhibit work cited," and

8 then there's shorthand for the long form of --

9 (Simultaneous speaking.)

10 MS. BROWN: Perfect. Thank you for

11 that clarification. All right. So in -- on the

12 first page of your testimony, the fourth

13 paragraph under the heading "The project is not

14 consistent with the purposes of the Act," I just

15 want to make sure I understand what you've

16 written here.

17 The second sentence, you talk about

18 adaptive free use not constituting special merit,

19 and I just wanted to make sure that you are

20 familiar with the D.C. Court of Appeals decision

21 that said that we're not allowed to look at

22 historic Preservation benefits such as adaptive

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1 reuse as special merit.

2 MS. FERSTER: Again, she's not

3 testified about the D.C. Court of Appeals

4 decision. That's the legal issue. If the

5 applicant wants to argue what the D.C. Court of

6 Appeals and there will be much discussion about

7 what that decision means. We can do it in our

8 proposed findings of fact and conclusions of law,

9 or we can develop other briefs if the Mayor's

10 Agent chooses to request it, but Ms. Barragan's

11 not a lawyer.

12 MR. BYRNE: I think that's right, I

13 think she understands.

14 MS. BROWN: So you mentioned St.

15 Elizabeth's project, both the federal and the

16 local portion of it. Were there exacting

17 building design guidelines for that project,

18 getting down to material of use, the color pallet

19 and that sort of thing?

20 MS. BARRAGAN: So in my testimony, I

21 stated that as urban planners within the master

22 planning product, which for St. Elizabeth it

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1 lasted about four years, because it also included

2 a NEPA process and an EIA process. In terms of

3 the materials for the actual construction, this

4 is all within the planning phase, that's not

5 stated.

6 It was -- and that's the reason why

7 the whole entire master plan was phased out. For

8 example, you will find some of the Coast Guard

9 buildings that are meeting some standards and

10 some design guidelines because they are in the

11 bluffs, because of their location. Meanwhile you

12 have other buildings by DHS which are further up

13 and actually used a lot of the 51 buildings that

14 were preserved on site, and they're all -- they

15 all have specific design guidelines that meet the

16 cohesion with existing buildings, because they

17 are different.

18 Not only that, but this was an

19 historic land site. So the streetscape patterns

20 were also -- they also were standardized as far

21 as design guidelines to meet the historic culture

22 and the historic element of the landscaping.

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1 MS. BROWN: So you're saying that they

2 do have design guidelines that are specific like

3 the McMillan plan?

4 MS. BARRAGAN: Farther down the road,

5 once it's constructed, yes.

6 MS. BROWN: But not now?

7 MS. BARRAGAN: At the master plan

8 level?

9 MS. BROWN: Right, like we're at the

10 master plan level for McMillan and my question is

11 in the master plan level that you did for St.

12 E's, did you get to the level of design

13 guidelines that McMillan has?

14 MS. BARRAGAN: No, because it was

15 phased out.

16 MS. BROWN: Just for my education,

17 what are -- what do you mean by "primary care

18 provider centers"? What are they?

19 MS. BARRAGAN: So in -- we have

20 MedStar night clinics, for example, that are

21 available for both parents. There's plenty of

22 them along Connecticut Avenue that you will find,

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1 especially along Metro stations. You will find -

2 - definitely Johns Hopkins has a couple, MedStar

3 has a couple. Bread for the City also has some

4 of those PCPs, which are basically a way of

5 putting providers, health care providers in

6 communities and without having, because they

7 don't have an actual center.

8 MS. BROWN: And were you present for

9 Mr. Weer's testimony on how the McMillan site

10 will help allow such providers as Children's

11 Hospital or MedStar, refurbish other facilities

12 in other wards.

13 MS. BARRAGAN: So yes, and his basic

14 point was that this is not a neither/or question.

15 It's you can include some of those programming

16 strategies. But I think I just proved that since

17 2004, everyone, planners, scientists, educators,

18 academics, we have all been saying that actual

19 centers need to be located east of the river,

20 that just providing more of -- more places like

21 Bread for the City, where they have one office

22 that may open in certain hours of the day is not

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1 enough. There's actual people dying right now

2 because of the issues with United Medical Center.

3 MS. BROWN: Are you a health care

4 professional?

5 MS. BARRAGAN: I am not. I am a

6 planner.

7 MS. BROWN: And do you have the same

8 level of experience that Mr. Weers does in a

9 health care facility?

10 MS. FERSTER: Well, are asking -- Mr.

11 Weers was also not qualified as a health care

12 professional, but he is a developer. Are you

13 querying her about whether she is a developer of

14 health care?

15 MS. BROWN: She has enough, the same

16 experience that Mr. Weers does developing health

17 care facilities across the country.

18 MS. FERSTER: I mean she's not

19 developer. I think she didn't testify to that.

20 MS. BARRAGAN: Yeah. I am not a

21 developer.

22 MS. BROWN: And you talk about

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1 investment strategy on the second to last page of

2 your testimony, and seem to imply that if there

3 is an investment strategy or marketing features

4 of a project, that that negates any special merit

5 of the project?

6 MS. BARRAGAN: Yes. So in my line of

7 work in planning and even when I worked for

8 smaller architecture firms, one of the things

9 that I had to do was go back and specifically for

10 affordable housing units, was to take away all of

11 the marble tiling of units, take away like

12 literally delete, hit delete in drawings and also

13 delete, take away stainless steel materials, all

14 because they were deemed as affordable housing

15 units, and therefore the developer did not want

16 to put enough money or give them those high end

17 materials.

18 So what I'm saying is is that high end

19 materials are usually used as specifically for

20 high end development, and that's why you have

21 different type, different typologies. So you

22 have Class A buildings, Class B buildings, Class

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1 C buildings, mostly found in office. But now we

2 have seen definitely a huge social class

3 disparity in terms of construction materials in

4 residential.

5 MS. BROWN: So it's your opinion that

6 once you -- help me understand this, that once

7 you get above a Class D building, it can no

8 longer be considered special merit?

9 MS. BARRAGAN: No. What I'm saying is

10 that saying that we will include the higher, we

11 will include a little bit more than affordable --

12 more, a higher number of affordable housing units

13 in this particular master plan, and as a result

14 we're also going to have a community center with

15 WiFi and we're going to have some healing

16 gardens, which are all high end very marketable

17 uses, is specifically saying that those are all

18 -- those high end uses also warrant special --

19 the developer is asking for special merit for

20 those, in return of giving a little bit more of

21 affordable housing.

22 MS. BROWN: Okay. You made me think

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1 of one other question and it just went out of my

2 head. Let me -- give me a second. Oh, are you

3 aware that the inclusionary zoning laws

4 specifically allow lower quality finishes for

5 affordable housing units?

6 MS. BARRAGAN: Yes, and inclusionary

7 zoning is very minimal in its affordability.

8 It's mostly done because of construction.

9 MS. BROWN: Those are all my

10 questions.

11 MR. BYRNE: I wanted to ask what you

12 were saying about the Gold, Neighborhood Gold

13 LEED. Were you saying that it's required for

14 developments of like more than one building to

15 satisfy Neighborhood LEED Gold?

16 MS. BARRAGAN: Well, in any green

17 building code, the building green code

18 specifically requires that any project undertaken

19 pursuant to the land disposition and development

20 agreement has to achieve a minimum of LEED

21 Silver.

22 MR. BYRNE: Okay. Yes, I got that.

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1 But then you said adherence to I guess is the

2 next paragraph, adherence to gold LEED and the

3 development compliance are standard elements of

4 development as regulated by the green building

5 code. I didn't understand that that is true. Is

6 that --

7 MS. BARRAGAN: If it would warrant

8 special merit is what I'm saying.

9 MR. BYRNE: In other words, okay. So

10 in other words, to be special merit, it would

11 have to be Neighborhood Gold LEED?

12 MS. BARRAGAN: Yes.

13 MR. BYRNE: Isn't -- I think that's

14 what they're proposing.

15 MS. FERSTER: It's Silver.

16 MR. BYRNE: No. The buildings are

17 Silver but the plan is Gold.

18 MS. BARRAGAN: Yeah. So the

19 Neighborhood Development is an add-on. You don't

20 have to do -- you don't have to do Neighborhood

21 Development in order to have the buildings. So

22 --

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1 MR. BYRNE: It's not required by law.

2 That's what I was trying to get at, okay. Thank

3 you. I just was unclear about that.

4 MS. FERSTER: I have a redirect

5 question. Okay. So in terms of Neighborhood and

6 LEED ND status, is there a platinum Neighborhood

7 LEED ND status?

8 MS. BARRAGAN: Well, once you start

9 adding, for example if you start having a higher

10 percentage of reuse of materials, and also of the

11 transit systems that are going through the new

12 development, then you start building up on a

13 higher level of ND.

14 It's all based on a standard

15 checklist. So the more, the more checks you end

16 up having on that particular certification, you

17 can have like a very low checklist and still be

18 qualified, or you could have a high checklist and

19 then that really warranted to be a higher ND

20 standing.

21 MS. FERSTER: So you would have to

22 actually see the checklist, in other words --

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1 MS. BARRAGAN: Exactly.

2 MS. FERSTER: --in order to really

3 evaluate how high or low they are in terms of

4 their achievement of the Neighborhood LD Gold?

5 MS. BARRAGAN: Yes, and in terms of

6 planning, I have specifically worked on several

7 projects throughout D.C. that are developer-

8 driven. Columbia Heights is one of them. I mean

9 there's tons of projects, also even in Arlington,

10 in which the architect team at the phase that

11 we're seeing from McMillan, they already had a

12 checklist down, which I was included in those --

13 in working on those projects, on matching those

14 to the checklist.

15 So that's done early, early on. So

16 you should have -- you should be able to receive

17 those checklists.

18 MS. FERSTER: And then I guess my last

19 question is that you did testify that in your

20 experience, generally adherence to Neighborhood

21 LEED ND Gold standard is a pretty standard

22 element in most designs, and are you talking

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1 about projects that involve historic properties

2 or just generally?

3 MS. BARRAGAN: Generally speaking.

4 MS. FERSTER: Thank you.

5 MR. BYRNE: All right, thank you.

6 MS. FERSTER: So we're going to take

7 a little bit of time to qualify Ms. Richards as

8 an expert, and I need to explain why we do need

9 to take some time. Laura Richards, you have her

10 CV in front of you. She is a lawyer and she was

11 qualified as an expert in zoning before the

12 Zoning Commission. We offered her as an expert

13 not as a planner but as an expert in the D.C.

14 Comprehensive Plan.

15 The applicant -- before the Zoning

16 Commission. The applicant objected to her

17 qualification as an expert in D.C. Comprehensive

18 Plan because she does not have a planning degree,

19 and before I could provide any voir dire in terms

20 of Ms. Richards' expertise and knowledge and

21 professional experience on the D.C. Comprehensive

22 Plan, the Chairman of the Zoning Commission

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1 sustained the opposition's objection and she was

2 not qualified as a planner.

3 I therefore would like to take the

4 time at this point to go into more detail in

5 advance of your ruling on her qualification as a

6 planner, and I would also cite to you several

7 cases for your consideration. The cases I'm

8 citing to you are Joyner v. Estate of Johnson,

9 which is 36 Atlantic 3d 851, jump cite 859, a

10 decision of the D.C. Court of Appeals, which

11 stands for the proposition that it is well-

12 settled that an expert may be qualified by virtue

13 of his experience, as opposed to his academic

14 training.

15 I'd also like to cite the case of

16 Jones v. United States, 990 A.2d 970, jump cite

17 979, D.C. Court of Appeals 2010 decision and the

18 quote from that case is "Scholarship is not a

19 prerequisite for eligibility to testify as an

20 expert witness. The relevant knowledge may be

21 derived from professional experience."

22 So Ms. Richards provided her -- you

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1 with her CV that describes basically 30 years of

2 experience involving the interpretation and

3 application of the D.C. Comprehensive Plan,

4 including the fact that she was actually an

5 appointed member of the Comprehensive Plan Task

6 Force that actually developed the 2006 plan.

7 So I'd ask Ms. Richards at this point

8 to elaborate --

9 MR. BYRNE: Before you do that, before

10 you do that, just to clarify in the cases, can

11 you tell me what the expertise was at issue in

12 Joyner and Jones?

13 MS. FERSTER: No, I don't remember.

14 MR. BYRNE: Okay.

15 MS. FERSTER: It wasn't planning.

16 That's for sure.

17 MR. BYRNE: Okay, and what was the

18 first part of the Jones case?

19 MS. FERSTER: I think it had to do

20 with a police officer who didn't have forensics,

21 you know.

22 MR. BYRNE: So but the Jones case is

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1 990 A.2d what?

2 MS. FERSTER: The Jones case is 990

3 A.2d 970, jump cite 979.

4 MR. BYRNE: Okay. Okay, thanks.

5 MS. FERSTER: And I don't think either

6 of those were planners. It probably had to do

7 with police officers and they testified on

8 ballistics and that sort of thing, based on their

9 experience as opposed to scholarship.

10 MR. BYRNE: Okay, all right. Proceed.

11 MS. FERSTER: So Ms. Richards, if I

12 can simply ask you to go into some detail about

13 your experience involving the interpretation and

14 application and development of the D.C.

15 Comprehensive Plan over the last 30 years?

16 MS. RICHARDS: Okay. My experience

17 with the D.C. Comprehensive Plan began I would

18 say in the mid-80's, when I worked with the

19 citizens groups and professional planners who

20 were developing the first set of ward plans, as

21 we had then. I was with groups who went to the

22 individual wards and worked with citizens and

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1 said all right, this is what, you know, you're

2 being offered a chance to participate.

3 I wrote some of the proposed texts for

4 the Ward 6 plan. I lived in Ward 6 at the time.

5 It's now part of Ward 8. I think I should say

6 that a lot of our work was supervised or at least

7 encouraged by Doren McGrath (phonetic), a

8 professional planner. So there was some hands-on

9 tutorials and also I worked very closely with Ann

10 Hargrove, again a professional planner.

11 I would say that I was sitting at Ann

12 Hargrove's knee from the mid-80's until the time

13 of her recent death. So that was -- I testified

14 for ward plans, went with the citizens to talk to

15 the City Council about developing ward plans. So

16 that was that cycle. Subsequently I did sit on

17 the D.C. Board of Zoning Adjustment, which has,

18 you know, some overlap between planning and

19 zoning, not as much as with the Zoning

20 Commission.

21 I have been for I guess since about

22 the 80's a member of the Committee of 100. So I

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1 was constantly having to think about planning and

2 zoning issues and write testimony. I worked with

3 on the task force, the Mayor's task force, I was

4 a mayoral appointee or a Council appointee to the

5 Comprehensive Plan Task Force.

6 I went to many, you know, many, many

7 meetings where I made comments, and then

8 subsequently to that I was on the D.C. Zoning

9 rewrite task force where we did consider the

10 zoning regulations in light of the Hopkins plan.

11 I worked on amendments to the plan

12 amendment cycle that's pending now. So I would

13 -- it's been extensive.

14 MS. FERSTER: Again, I would proffer

15 Ms. Richards not as a planner because she does

16 not have a planning degree, but based on her 30

17 years of expensive experience as a mayoral

18 appointee to the Board of Zoning Adjustment, as a

19 Council appointee to the Comprehensive Task

20 Force, and her participation in the development

21 of ward plans over the past 30 years, her review

22 of projects and her testimony in multiple venues

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1 on a project's consistency with the Comprehensive

2 Plan, that she is by virtue of her 30 years of

3 experience on this issue an expert in the D.C.

4 Comprehensive Plan.

5 MR. BYRNE: Ms. Brown.

6 MS. BROWN: Yes. I do not object to

7 her qualification as an expert in zoning, but I

8 do continue to object to her qualifications as an

9 expert in planning in D.C. Based on her resume,

10 it is clear that she is an attorney, not a

11 planner and that while she may have participated

12 in some of these planning exercises over the

13 years, many of those planning commissions have

14 professional planners and then they have citizen

15 members to participate in their distinct

16 positions.

17 With regard to the Board of Zoning

18 Adjustment, they're specifically precluded from

19 evaluating Comprehensive Plan issues. Those are

20 specifically delegated to the Zoning Commission,

21 and I myself have pored over the Comprehensive

22 Plan and made legal arguments to it, but I cannot

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1 consider myself an expert in the Comprehensive

2 Plan despite working with it for over 30 years

3 myself.

4 I think there is a distinction, and I

5 think that again, we would have no problem with

6 Ms. Richards being qualified in zoning, but not

7 in planning.

8 MS. FERSTER: I guess you need to

9 clarify again, because you did misstate the basis

10 for our qualifications, seeking qualification for

11 her. We are again not seeking that she be

12 qualified as an expert in planning at all. We

13 understand she's not an urban planner the way Ms.

14 Barragan is and doesn't have that professional

15 expertise.

16 But we believe that her 30 years of

17 experience in the D.C. Comprehensive Plan does

18 indeed qualify her as an expert in her ability to

19 comment on consistency with the Comprehensive

20 Plan and on its specific policies and objectives.

21 MS. BROWN: And I continue to

22 disagree, that that does not qualify someone as

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1 an expert, just because you've had your hands in

2 its for 30 years. Again, I am not an expert in

3 the planning in D.C., although I would like to

4 think I am. But I know I would not qualify, and

5 Ms. Richards is an attorney.

6 MR. BYRNE: Okay. So I'm having

7 trouble wrapping my mind around what it is about

8 the nature of being qualified as an expert in

9 something of this nature, which has nothing to do

10 with sort of professional knowledge. It is a

11 question of sort of knowing the plan and reading

12 it and understanding its role in system. I just

13 don't quite get what it means to be an expert in

14 that context.

15 I mean it's like being an expert in

16 taking the Metro, because you've ridden the bus

17 for --

18 MS. FERSTER: Well, I mean two points.

19 One is let me just say that Ann Saleem, who has

20 been qualified as an expert in historic

21 preservation, was qualified on the basis of her

22 experience, not her academic credentials. She

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1 doesn't have an advanced degree in historic

2 Preservation, but she has, you know, decades of

3 experience in historic preservation.

4 (Simultaneous speaking.)

5 MR. BYRNE: Right. But historic

6 preservation is a field. The Comprehensive Plan

7 is not a field; it's a document.

8 MS. FERSTER: But I will say that

9 Shane Dettman, of course, was qualified as an

10 expert planner, and he commented on the

11 consistency with the Comprehensive Plan. I would

12 stack up Laura Richards' experience on the

13 Comprehensive Plan against Shane Dettman's and

14 say that she is far more qualified than Mr.

15 Dettman to be commenting on what the

16 Comprehensive Plan --

17 MR. BYRNE: So I absolutely want to

18 hear what Ms. Richards has to say about the

19 Comprehensive Plan. I just don't know what it

20 means to qualify her as an expert on the --

21 MS. FERSTER: Well, Mr. Dettman is an

22 expert and so, you know, you understand that

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1 experts are entitled to a certain amount of

2 deference I believe --

3 MR. BYRNE: Certainly I know that.

4 MS. FERSTER: --that Laura Richards is

5 also an expert, not a planner, but she's an

6 expert in the D.C. Comprehensive Plan and she

7 ought to be -- her testimony ought to be accorded

8 the deference of an expert because that is in

9 fact her experience.

10 MR. BYRNE: Okay. So why don't we do

11 that? Is it okay if we do this? I mean I have

12 -- I very much respect Ms. Richard's experience.

13 I want to hear what she has to say. I'm going to

14 give it a certain degree of deference.

15 Can we just sort of obviate the issue

16 of expertise and just sort of hear what she has

17 to say based upon the fact that she has 30 years

18 of experience and has been very active in this

19 process? I don't know what the difference is.

20 MS. FERSTER: I would suggest that

21 eventually, if you're suggesting you defer your

22 ruling on our request that she be qualified as an

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1 expert witness.

2 MR. BYRNE: No. I'm saying I just

3 would defer to her, the fact that she knows a

4 great deal about the Comprehensive Plan.

5 MS. BROWN: Mr. Byrne, I think it does

6 go to her level of competency and what

7 credibility you give her testimony. I think that

8 that's where you take into account her 30 years'

9 experience. But it does not get to the level of

10 expertise.

11 MR. BYRNE: Yeah, and I think that

12 sounds right to me. I mean I don't think I want

13 to qualify her as an expert, but I very much

14 would hear what she wants to say, and I'm

15 prepared to be, you know, to take with great

16 seriousness what she has to say. So Ms.

17 Richards, forgive me, but I do want to hear what

18 you have to say.

19 MS. RICHARDS: I'm Laura Richards,

20 testifying on behalf of the Friends of McMillan

21 Park on the D.C. Comprehensive Plan. Generally,

22 I'm going to conclude that the applicant's

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1 proposal does not satisfy the special merits

2 standard because key features of the plan,

3 particularly the medical facility building, do

4 not meet the threshold legal requirement of

5 overall compliance with the plan.

6 Two, most of the project features that

7 the applicant contends demonstrate special merit

8 have nothing to do with the special preferred

9 land uses set forth in the plan for the McMillan

10 site. The court's remand order set forth four

11 issues for the limited public scope hearing.

12 This testimony deals with Issue 2, what are the

13 specific architecture, land planning and/or

14 community benefits that individually or

15 collectively make this project one of special

16 merit, and we all know the definition.

17 It's having significant benefit to the

18 District of Columbia or to the community by

19 virtue of exemplary architecture, specific

20 features of land use planning or social or other

21 benefits. The court's remand order made it clear

22 that the overall consistency with the plan is not

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1 determinative of special merit. The overall

2 consistency is the threshold standard, and then

3 if you can't make overall consistency, you never

4 really get to special merit, okay.

5 The court also made clear that with

6 regard to the special merit, the more an

7 applicant can tie elements of the proposed

8 project to the specific preferred land uses set

9 forth, the more likely this will lead to a

10 special merit finding.

11 All right. So that's the remand

12 guidance in light of which this project must be

13 evaluated. So let's look at the mere

14 consistency. The court has not -- has held that

15 the project has not yet established consistency,

16 overall consistency with the plan. The court did

17 not get that far. It remanded on that issue.

18 So there is no baseline finding on

19 which the Mayor's Agent can now say now let's

20 look at special features. It really puts a

21 heavier burden on you, okay, because there's got

22 to be at least a plausible consistency.

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1 MR. BYRNE: So let me understand what

2 you're saying. You're saying that consistency

3 with the plan is necessary but not sufficient for

4 special merit?

5 MS. RICHARDS: That's what the court

6 said.

7 MR. BYRNE: So right, so right. So

8 that if I can't find that it's consistent with

9 the Comprehensive Plan, I can't even move to the

10 question of special merit. Is that what you're

11 saying?

12 MS. RICHARDS: No, it's because the

13 determination of overall consistency ultimately

14 rests with the Zoning Commission, not this body.

15 But if the Zoning Commission had said or the

16 Court had said okay, it's consistency, then you

17 get to special merit.

18 But there's no -- still no kind of

19 final determination of overall consistency. So

20 the real burden on you is kind of like having to

21 make that special merit finding on the particular

22 features without knowing that you have a finding

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1 of consistency to rest on.

2 MR. BYRNE: Because the Zoning

3 Commission hasn't finished their work yet.

4 MS. RICHARDS: Exactly. The Zoning

5 Commission hasn't and the court didn't so --

6 MR. BYRNE: Okay, good. I'd rather

7 leave that to the Zoning Commission.

8 MS. RICHARDS: Okay, okay. All right.

9 So I will say that as has been like, you know,

10 stated many times, that the mere consistency

11 cannot be shown because the plan calls for the

12 site to be developed with, you know, moderate and

13 medium densities, medium density residential and

14 moderate density commercial, and the court has

15 found that the medical building is a high density

16 structure and a high intensity use. So like

17 right off the bat, you know, that's a problem.

18 Also, the mid-city element says that

19 any development on the McMillan site should

20 maintain viewsheds and vistas, and be situated in

21 a way that minimizes impacts on historic

22 resources at adjacent development, okay, and

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1 that's in the -- that's in specifically the mid-

2 city element, which we've heard ad infinitum, and

3 it's --

4 And the -- it's not contradicted by

5 that and it's echoed on the future land use map,

6 and the future land use map and the land use

7 elements say hey, we're not giving you guidance

8 as far as we can, and then you've got to go to

9 the mid-city element to get the specifics. So

10 that's where wind up with -- the mid-city element

11 is the real driver in this case.

12 Okay. That's what the special merit

13 showing's got to be looked at, in how well the

14 features comply with the guidance provided in the

15 mid-city element, okay, which inform the land use

16 map and the citywide elements. Okay. So now we

17 -- so then we get to the medical building, which

18 is the behemoth of the project.

19 There's nothing in the plan anywhere

20 that can be construed as a specific preferred

21 land use, such that like that the medical

22 building serves. It's not a mid-city element,

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1 it's not called for on the -- it's anywhere in

2 the kind of mix of bulks and uses on the map, and

3 when you go to the plan element that deals with

4 social services, there's just nothing there that

5 says we need another major medical facility.

6 In fact, as Claudia and others have

7 stated, the only specific vision in the plan

8 social services element that deals with the

9 establishment of health care facilities says

10 let's disperse them out all over the City,

11 especially in the under-served parts of the City.

12 The kinds of examples are the ones

13 that like Children's Hospital has set up

14 satellite facilities. They have put one in Ward

15 8. That consolidated several smaller ones. They

16 have them around the City. So they have taken

17 the primary pediatric care specifically to

18 medically under-served areas. They also have

19 some in areas that are not at all medically

20 under-served, but they're kind of McDonald's all

21 over the City, okay.

22 The plan said we need more of those

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1 kinds of things all over the city for different

2 kinds of health care. You know, you walk around,

3 you see a Davida Dialysis. You can't get away

4 from them. They pop up like McDonald's. But

5 that kind of dispersed, easy to get to, primary

6 care facility to handle chronic diseases,

7 etcetera. That's what the plan actually calls

8 for.

9 Now Mr. Dettman in addressing the Comp

10 Plan's provisions supporting, purportedly

11 supporting a health care facility went to the

12 economic development, which element -- which does

13 I talk about the health care industry as one of

14 the District's key industries, along with

15 education, federal, etcetera.

16 However, there are no economic

17 development provisions regarding health care that

18 address constructing new facilities. That just

19 talks about this is a source of, you know,

20 revenue. We have lots of employees there, you

21 know. We spend a lot of money on health care, so

22 let's keep that segment happy. But it doesn't

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1 talk about construction of new facilities.

2 There was in the prior Mayor's five

3 year economic development plan a medical health

4 proposal for the McMillan site that never made it

5 into the plan, and it never got off the ground

6 and it's not in the current Mayor's five year

7 plan.

8 There are some other health care

9 provisions in the new five-year plan, and they

10 call for establishing some new research

11 facilities in the suburbs, working with other

12 jurisdictions to establish some regional

13 activities not in the District.

14 There's nothing about a million dollar

15 medical office building in the District at the

16 site. I think that the tenuous nature of this

17 project this really shown, because it's still

18 speculative. When there's no anchor tenant,

19 either Children's nor the Hospital Center have

20 said we want to get on board with this, even

21 though other testimony has said look, if we build

22 this then those hospitals can move into our new

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1 facility and upgrade their old ones.

2 But there's no working partnership.

3 It doesn't say one can't be developed. Even when

4 ground-breaking occurred to say this was going

5 forward, there was no anchor tenant, indicating

6 that any delays exacerbated by the remand were

7 not the cause of any kind of leeriness on the

8 part of a proposed nearby partner, okay.

9 So that's -- those are the key things

10 I want to say about -- the medical facility is

11 not a specific preferred use in the Comprehensive

12 Plan. Okay. So then there are -- and really

13 that's the main thing. Now there are a few

14 specific provisions in the plan regarding this

15 site that are ignored, and I think if we go to

16 the historic preservation element here, and it

17 talks about -- one second.

18 Yeah. That's one. HP-2.5(b),

19 directing the District "To protect views of and

20 from the natural topography around central

21 Washington, to accommodate reasonable demands for

22 new development on major historic campuses like

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1 St. Elizabeth's, the Armed Forces and McMillan

2 Reservoir in a manner that harmonizes that

3 natural topography and preserves the important

4 vistas over the City."

5 And there's already been a concession

6 that the vista is going to be disturbed to some

7 extent, and I think we just -- and obviously, you

8 know, it's a big building. This is an instance

9 where a specific provision leading to a specific

10 preferred policy provision is just like being run

11 roughshod over.

12 You see, this is a citywide element,

13 but it's one that specifically addresses the

14 McMillan site, and it talks about the fact that

15 this particular connected open space has

16 historic, ecological, aesthetic and recreational

17 value dating from the 19th century. So both the

18 mid-city element and the historic preservation

19 element, which specifically discusses this site,

20 are in sync here.

21 This is like nowhere addressed in the

22 100 or so Comprehensive Plan elements that Mr.

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1 Dettman identified as being supported by this

2 project. There is a related parks and

3 recreation, an open space policy that is -- that

4 is the counterpart of the historic preservation

5 policy, and that is PROS 3.3, okay.

6 That one talks about again, the unique

7 open space network. So we have in two citywide

8 elements specific preferred references to

9 McMillan site and its value as an open space, as

10 part of this ongoing like long-standing, you

11 know, green area and with all historic vistas.

12 And then we have that -- those sentiment echoed

13 in the mid-city element, and that is -- that is

14 the sort of specific preferred use that one would

15 look to in determining special merit.

16 The 100 or so elements, citywide

17 policies that Mr. Dettman identified did not deal

18 specifically with McMillan, and it is the -- I

19 guess one reason the Comp Plan has this

20 reputation of -- it's like the Bible. You can

21 make it say anything you want to, it's that that

22 probably read in context proceeding from the

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1 citywide element to the area element when it's --

2 when the area element speaks with detail, and

3 then to the small area plans.

4 In fact, you know, it's the wholesale

5 kind of like I won't say wholesale, but it is the

6 tendency of some developers to ignore small area

7 plans that has led to some of the decisions we've

8 had. Those more detailed plans do have some

9 meaning in some way, and if the plans are read in

10 the tiered, I guess manner in which the plan is

11 written, we wouldn't have all these problems.

12 And of course common sense plus legal

13 interpretation says the specific overweighs the

14 general, okay. Now I wanted to -- okay. I

15 wanted to address a couple more. Ms. Barragan

16 has kind of talked about some other things and I

17 don't want to be duplicative.

18 But I think it's important that the

19 applicants, the applicant addresses in its

20 special merit showing the architecture. I'm not

21 addressing that; addresses some onsite benefit,

22 and then it talks about some social benefits, and

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1 it identifies a number of those, and I think it's

2 important to take a look at these, two of them.

3 The site compliance with the certified

4 business enterprise rules in the District's first

5 source law. First, these are regulatory

6 requirements that cannot constitute special

7 merit. They have to do that.

8 But I think that in any application,

9 it's important to look at the plausibility of the

10 claims of special merit, and assuming that these

11 certified business enterprise rules and First

12 Source law could be considered special merit,

13 which by law they can't, is it plausible to

14 assume that they will be meaningfully carried

15 out?

16 I have here for the record there's a

17 policy brief by 2010, Using Fiscal Policy and

18 Appleseed and Others, Strengthening the Link

19 Between Economic Development and Jobs, and it

20 talks about the failure of First Source. There

21 was another study done in 2015 by the George

22 Washington University and some others that used a

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1 case study with the Marriott Hotel and looked at

2 First Source.

3 MR. BYRNE: Are you going to put those

4 in the record?

5 MS. RICHARDS: Yes, I will submit

6 this, and the conclusion was that workforce

7 development is to jobs as Taco Bell is to Mexican

8 food. You don't get any closer to the real

9 thing, so we should stop acting like it does.

10 Job training has to lead to a concrete job, or at

11 least a job offer. Otherwise, it's meaningless

12 and a waste of everyone's time and money.

13 So I'll put those in the record, and

14 also I will take -- ask you to take note of the

15 fact that there is still a pending lawsuit by the

16 Associated Building Contractors of D.C. against

17 the City, trying to overturn the 2011 amendments

18 to the First Source law, that tried to put a

19 little bit of teeth in it. So I guess I -- so I

20 say that in light of this, I believe that any

21 claims of benefits to be derived from CBE and

22 First Source should be accorded little weight,

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1 absent any kind of stronger showing of real

2 compliance, and that's just not in the record at

3 this point.

4 There's also the -- oh, a claim that

5 the District will garner 874 million over 30

6 years from the project, principally from

7 employment generated by the health care facility,

8 and that was part of the showing. There has been

9 -- there was no breakdown as to okay, so is this

10 going to be primarily employment taxes? It says

11 employment, so presumably those are going to be

12 income taxes.

13 There is, you know, the same 2000

14 study that said let's reform First Source noted

15 that 70, let's see. Three-fifths of the 720,000

16 jobs in the District are held by non-residents.

17 Those are full time jobs, and these numbers have

18 not changed very much since then. So I looked at

19 874 million. How much of that is going to be

20 like income from employment by non-D.C.

21 residents?

22 So this, you know, maybe this project

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1 is like different from everything else. But I do

2 not -- absent a further showing of where that

3 $874 million is coming from, I do not think that

4 it can be counted as a particular community

5 benefit. A, if they're not D.C. residents, the

6 money's not coming here, and B, it's certainly

7 not, you know, resulting in the level of

8 employment for D.C. residents that this number,

9 you know, that might -- one might think.

10 Okay. So the other and the -- so in

11 line with employment, there's a million dollars

12 and it's going to be sent to the Community

13 Foundation for the National Capitol Region to

14 support workforce development initiatives, and

15 for job training and scholarships. So it's a

16 drop in the bucket, assuming that it doesn't wind

17 up in the same sort of ineffective basket that

18 these other studies have shown happens with such

19 initiatives.

20 There's 125,000 to the D.C. Education

21 Fund to be used to improve STEM training. That's

22 a teacher professional development in local high

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1 schools. That's a very nice amenity. It's

2 offsite. It's tenuous. Charter schools. It's

3 not sufficiently connected to this particular

4 project to be considered a special preferred use

5 or a particular benefit.

6 $500,000 over ten years to hire high

7 school residents and senior residents to provide

8 guided tours of the McMillan site, highlighting

9 the preserved historic resources. I think we

10 have to look at -- we break that down by minimum

11 wage jobs, job hours and then look at the number

12 of hours over ten years.

13 A, it's not a lot. It's not a major

14 benefit, and then of course other testimony has

15 said what's the demand for tourism of that site

16 there? 750,000 over ten years to the Project

17 Association, the neighbor association's operating

18 budget to create a community market outdoor café

19 and space for art installations.

20 That sounds nice, you know. That's on

21 site, you know. That's an amenity. 225,000 to

22 the Project Association to facilitate business

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1 startups. That's a little tenuous. I'm not sure

2 how much weigh that should be accorded without a

3 little more detail. 500,000 for streetscaping in

4 and around the project and yes, it's related.

5 Around the project, I'm not sure how far it would

6 go but it probably, to the extent it beautifies

7 the approach, it might be considered a benefit.

8 And then $150,000 to North Capitol

9 Main Street for storefront improvements. North

10 Capitol Main Street is several blocks down.

11 There are no like retail. So that is -- I think

12 it's nice, but it's not necessarily -- it's too

13 distant from the project to count as a community

14 benefit.

15 So those are my -- let's see. So I

16 don't think the community benefits showing has,

17 you know, much weight here, just based on facts

18 which you may consider. So to that extent, they

19 cannot really support the special merit finding

20 and I will likely not address other aspects at

21 this time because I think they've been adequately

22 covered, unless you would like for me to -- okay,

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1 that's fine.

2 MS. FERSTER: I have a couple of

3 follow-up questions. So you didn't address the

4 550 more or less market rate housing units on

5 this project. Is it your opinion that the

6 provision of market rate housing is a benefit of

7 special merit under either the high priority for

8 community services branch or the specific

9 features of land planning branch of that

10 standard?

11 MS. RICHARDS: No, I don't see where

12 market rate housing gets you there. I mean they

13 were -- that's what's called for in the plan,

14 moderate density, you know, medium density

15 residential. No, it's just what they're going to

16 do with the project.

17 MS. FERSTER: Okay, and the same

18 question with regard to the retail that's being

19 offered on the site. Do you consider offering

20 retail, general retail on the site to be a --

21 which presumably will be -- well, I don't know

22 what the specifics are, but Ms. Barragan

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1 suggested it was somewhat high end retail,

2 qualifies as a special merit benefit by virtue of

3 being either a specific feature of land planning

4 or a high priority for community service?

5 MS. RICHARDS: No. As I understand

6 it, these are going to be neighborhood-serving

7 retail element aspects. There is talk of

8 bringing a grocery store. Ward 5 is not the food

9 desert that it was at the beginning of this

10 process. So it now has I think about five full

11 service grocery stores. You know, another one,

12 while perhaps it's nice but it doesn't -- it's

13 not like Ward 7, which has one full service

14 grocery store, one or two, or Ward 8, I think

15 which has one or two, and the residents are not

16 as, you know, deprived or isolated from other

17 grocery stores.

18 So the grocery store was the big

19 driving retail factor, and I assume that with the

20 grocery store comes the attendant CVS and, you

21 know, perhaps the Starbucks. So those are --

22 those are fine, but one must bear in mind that

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1 straight down Michigan Avenue, within walking

2 distance if you're into the Walkable City, but

3 within a five minute drive there is the new

4 Brookland development, which has a number of what

5 I call, you know, very basic upmarket

6 neighborhood-serving retail.

7 Just to put things in context, the

8 townhouses in the Brookland development sell for

9 $800,000, and then there are some multi-family

10 units and of course they have their obligatory

11 Busboys and Poets. They have, you know, the --

12 and a Starbucks and another Starbucks inside the

13 bookstore.

14 Anyway, there's like a nice little

15 like kind of cutesy retail hub within walking

16 distance, and I assume that what's going here is

17 going to perhaps be somewhat an echo of that.

18 But it's not -- it's not as if the area is

19 starved, and then of course they're so close to

20 the arts district in 12th Street. It's not --

21 it's a gentrifying area, you know. It's whatever

22 it was when this project began, I mean that's

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1 another day, it's history.

2 MS. FERSTER: Thank you, and then you

3 testified about a lot of the components of the

4 benefits package in terms of grants to North

5 Capitol Main Street and other types of grants

6 for educational non-profits who offer a

7 different variety of services.

8 So in your opinion, would any time a

9 grant be given to an entity, does that -- is that

10 really -- is a grant really necessary? I mean

11 it's demolition or destruction of an historic

12 site ever necessary to provide a grant?

13 MS. RICHARDS: Absolutely not. I

14 guess the key thing I'd say about the grants is I

15 added them all up, and they total 3.25 million

16 over ten years. So that's about 300,000 a year,

17 and if you look at a project that's talking about

18 generated, you know, millions and millions of

19 dollars in tax revenue alone, it's not -- it's

20 not a huge, huge outlay. It's not incredibly

21 generous, you know. The whole package is just

22 not significant.

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1 MS. FERSTER: Okay, and you have some

2 experience with planned unit developments

3 generally, right?

4 MS. RICHARDS: Yes.

5 MS. FERSTER: Okay. So would that

6 kind of benefit package which involves giving

7 grants to this non-profit and that non-profit be

8 a standard feature of any PUD, even if it were

9 not in an historic site?

10 MS. RICHARDS: Those are standard,

11 yes.

12 MS. FERSTER: And how would this

13 benefit package compare to a non-historic PUD?

14 Would you consider it standard, less, more?

15 MS. RICHARDS: It's -- well let's see.

16 If I'm just looking at those community benefits

17 along with -- we're now not talking about the

18 community center, which is sort of an integral

19 part of the building plan, and not -- I'm not

20 going to consider that as a community benefit

21 right now. But some --

22 MS. FERSTER: I'm sorry. I'm just

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1 talking about the grant.

2 MS. RICHARDS: So it's the grant?

3 MS. FERSTER: Just the grant.

4 MS. RICHARDS: No, no. That's not

5 especially, you know, generous.

6 MS. FERSTER: Okay. I think that was

7 it for me.

8 MS. RICHARDS: Okay.

9 MS. FERSTER: Thank you.

10 MR. BYRNE: Ms. Brown.

11 MS. BROWN: Following up on that last

12 line of questioning, you said that the grants are

13 not generous. In comparison to what PUD project

14 or other project are you talking about?

15 MS. RICHARDS: Well, there was one,

16 and this was years ago, a site when the community

17 in Georgetown, when the Women's Hospital over

18 there was demolished, I got a grant in millions

19 of dollars. It was either two or three million,

20 and that went to the community association.

21 MS. BROWN: And can you cite the case

22 again, the case number?

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1 MS. RICHARDS: I'll provide that in my

2 written --

3 MR. BYRNE: You mean Columbia Hospital

4 for Women?

5 MS. RICHARDS: That's it. That's the

6 one, Columbia Hospital for Women.

7 MS. BROWN: And you're saying that one

8 of the contributions was over a million dollars?

9 MS. RICHARDS: Yes.

10 MS. BROWN: In a grant for what

11 purpose?

12 MS. RICHARDS: It went to the

13 neighborhood association.

14 MS. BROWN: For what purpose was the

15 money to be spent?

16 MS. RICHARDS: I don't remember. I

17 think they got it outright. But I will -- I will

18 provide a better cite to that.

19 MS. BROWN: I don't need it. Either

20 you know the answer today or you don't.

21 MS. RICHARDS: Okay. No, I don't.

22 No.

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1 MS. BROWN: Okay, and is that your

2 only experience with a PUD?

3 MS. RICHARDS: No. I have been --

4 well, actually I'm involved in one, the Pentgrad

5 (phonetic) site is going up. That one hasn't

6 been determined yet, but the Skylamp site, I was

7 -- well, my husband was ANC chair when that one

8 went forward and I was a community resident. So

9 I was obviously, you know, very much, you know, I

10 was following that one very, very closely.

11 MS. BROWN: And Ms. Ferster asked you

12 the question of whether or not these community

13 benefits could go forward without the demolition,

14 and I guess my question is a little different.

15 Would these benefits happen without the project?

16 MS. RICHARDS: These benefits happen

17 without the project? Well, let me see. All

18 right. These benefits and this project are all

19 of a piece, okay. So you know, yeah. If this --

20 absent this project, I mean it's, you know, they

21 would not happen. I mean --

22 MS. BROWN: Okay, thank you.

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1 MS. RICHARDS: --it's like separating

2 out the whole.

3 MS. BROWN: And where is the grocery

4 in Brookland?

5 MS. RICHARDS: The grocery? Oh, I'm

6 sorry. I didn't refer to the grocery in

7 Brookland. I was referring to the shopping

8 district that runs along Michigan Avenue.

9 MS. BROWN: Okay. So there's no

10 grocery there?

11 MS. RICHARDS: I'm not sure. I was

12 really talking about the other upscale retails

13 there.

14 MS. BROWN: Okay, and do you know what

15 retail is going into the McMillan project?

16 MS. RICHARDS: No.

17 MS. BROWN: So you don't --

18 MS. RICHARDS: Only the fact that a

19 grocery, that a grocery store has been mentioned.

20 MS. BROWN: So you don't know whether

21 it's high end, low end? You don't have any idea

22 what type of retail's going in?

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1 MS. RICHARDS: No. I can only speak

2 to it being a grocery store, and I don't consider

3 -- you know, I don't know if that's going to be

4 like a Trader Joe's or a Giant. So I'm not --

5 MS. BROWN: Okay. So you don't know

6 that there's -- whether or not there's been a

7 contract signed or --

8 MS. RICHARDS: Exactly, no. I only

9 know what's been in the proffer so far.

10 MS. BROWN: Okay, and you were asked

11 and said in your testimony that the retail by

12 itself is not special merit. When you combine

13 the grocery store, the retail, the health care

14 facility, the senior housing, the market rate

15 housing, the affordable housing, the community

16 center, the 6.2 acre park and the preservation of

17 the above-grade historic structure, does that

18 together create special merit?

19 MS. RICHARDS: Well, I'd say that it

20 does in part because some of the elements of the

21 project that you just identified have been deemed

22 already to be mitigation, particularly the 6.2

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1 acre park, and is mitigation that's not -- it

2 can't be double-counted. So that's, you know,

3 certainly we have to take the park out of that

4 consideration.

5 Now for the community center, I

6 believe that was considered as like recreation.

7 I don't know if -- I don't know if you're going

8 to call that just part mitigation or a special or

9 community benefit. It's certainly a benefit.

10 I'm not sure if it's -- I'm not sure that it

11 would rise to special merit. It's a benefit.

12 MS. BROWN: Did you --

13 MS. RICHARDS: But that's -- but

14 remember, every benefit that's -- and this is the

15 plan. Every benefit that's in a project doesn't

16 necessarily make it rise to special merit. It's

17 got to be tied to the specific preferred use, and

18 to get to the special merit.

19 And the special merit talks about the

20 importance of maintaining the open space and the

21 vistas. So and those -- that particular band of

22 green going from the Armed Forces down to

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1 McMillan, you know, has been a recreation ground.

2 But it hasn't been tied to like a rec center, you

3 know. Now you can like swings come and go, rec

4 centers come and go.

5 But it was the kind of integrity of

6 this huge green, the view from the escarpment and

7 of course, you know, the Olmstead Walk. Those

8 were the things that were I guess the signal

9 elements of this particular site. I'm not sure

10 to say we're going to have a rec center, which is

11 certainly something a community needs to have,

12 you know, over a period of time, rises to you

13 know, is a specific preferred use that gets you

14 to special merit.

15 Again, this is a 17,000 square foot

16 rec center. So I'm not sure. Just in terms of

17 quantity of recreation space, I'm not sure where

18 it is. Just by way of comparison, Turkey Thicket

19 is about 31,000, twice that. It's not like it's

20 a major rec center. It's a neighborhood amenity

21 and that doesn't automatically get you to special

22 merit.

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1 MS. BROWN: Thank you. Did you

2 participate in the community negotiations for the

3 community benefits agreement?

4 MS. RICHARDS: For this project?

5 MS. BROWN: Yes.

6 MS. RICHARDS: No.

7 MS. BROWN: So are you aware of what

8 the community and the ANC determined was high

9 priority for their community and the benefits

10 regarding the beautification of the streets,

11 contribution to the --

12 MS. FERSTER: I object to that. She's

13 already testified that she did not participate in

14 the community benefit negotiations. She's not

15 qualified to answer that.

16 MS. BROWN: My follow-up question is

17 if she didn't participate, is she aware of what

18 the community determined through the

19 participants, the community associations and the

20 ANC about what priorities they determined were a

21 high priority for their community?

22 MS. FERSTER: Continue to object.

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1 MS. RICHARDS: Well, I have --

2 MS. FERSTER: I continue to object.

3 Wait, wait until the objection is ruled on

4 please.

5 MR. BYRNE: I'll allow the question.

6 MS. RICHARDS: Sorry. I have some

7 familiarity, not intimate familiarity, I have

8 some knowledge, I won't call it familiarity, from

9 having been acquainted over the years with some

10 of the neighborhood residents and having heard

11 them speak from time to time, in formal and

12 sometimes just in informal settings and sometimes

13 in giving reports, you know, as to what the

14 status of the proceedings were.

15 So I have like heard, you know, some

16 of it from neighborhood residents, but I have not

17 followed intimately.

18 MS. BROWN: So then why should the

19 Mayor's Agent substitute your judgment for a

20 community benefits agreement negotiated with the

21 community and the ANC when you don't have any

22 knowledge of it?

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1 MS. FERSTER: I think that's a

2 rhetorical question and I object to it.

3 MR. BYRNE: It's a rhetorical

4 question.

5 MS. RICHARDS: Oh okay. I had an

6 answer.

7 MS. BROWN: You also -- I just want to

8 make sure I understand your critique of the First

9 Source agreements and the CBE agreements and why

10 they shouldn't be counted as special merit. You

11 indicated that there is -- and correct me if I'm

12 wrong, because I want to make sure I understood

13 what you said so I have a copy of your testimony.

14 There is a George Washington

15 University study from 2000.

16 MS. RICHARDS: 2015.

17 MS. BROWN: 2015?

18 MS. RICHARDS: Yes and --

19 MS. BROWN: I just needed a

20 clarification of the year.

21 MS. RICHARDS: Okay, yes.

22 MS. BROWN: And then you also, and

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1 correct me if I'm wrong, you talked about

2 employment, the taxes generated by employment and

3 that they were out of state or out -- not

4 District residents and you said that you assumed

5 that the employment may not be District

6 residents, so we're losing that income tax.

7 But what about payroll tax and was

8 that 874 -- can you explain what you think the

9 874 million dollar --

10 MS. RICHARDS: I'm sorry. This is

11 based on like the applicant's statement, it said

12 the District will garner 874 million over 30

13 years from the project, principally from

14 employment generated by the health care facility,

15 and that was from one of the applicant's

16 documents.

17 MS. BROWN: Okay, and you were

18 assuming that meant income tax?

19 MS. RICHARDS: Well, what I was saying

20 is that there is no -- there is no explanation

21 for it. So I mean --

22 MS. BROWN: In the summary list?

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1 MS. RICHARDS: In the summary list, so

2 I did not get --

3 MS. BROWN: Okay.

4 MS. RICHARDS: And so based on that,

5 if I see principally from income, then I'm

6 thinking income taxes, and so that -- so I

7 suggested that, you know, absent a better

8 explanation for the applicant, there's not a

9 sound basis for giving the applicant credit for

10 all of that going to the District.

11 MS. BROWN: Okay. So you have not

12 looked at RCLCo's report?

13 MS. RICHARDS: I've read the record.

14 Now which one, what was that?

15 MS. BROWN: That was the fiscal impact

16 study, where that number came from?

17 MS. RICHARDS: Came from? I didn't --

18 MS. FERSTER: Just to clarify, that

19 was Mr. Leonard Bogorad's testimony; correct?

20 MS. BROWN: Correct.

21 MS. RICHARDS: Okay. Since I did not

22 recall seeing a breakdown of that figure, if it

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1 was in that, I did not see it.

2 MS. BROWN: Okay, thank you. Those

3 are all my questions.

4 MR. BYRNE: I want to clarify a

5 comment you made about the reading of special

6 merit in regards to the Comprehensive Plan. Did

7 you say that the -- that to be special merit,

8 that any benefit has to be tied to a specific,

9 site-specific element in the Comprehensive Plan?

10 Did I hear you correctly?

11 MS. RICHARDS: Well, in the court's

12 test, the more an applicant can tie an element to

13 the proposed project to a specific preferred land

14 use as set out in the GC Comprehensive Plan, the

15 more likely it is that the Mayor's Agent will

16 approve the project under this element of special

17 merit.

18 MR. BYRNE: Okay. That's what you --

19 okay, good. Thank you. That's helpful. Okay,

20 good. Thank you. Oh, Mr. Otten, okay.

21 MR. OTTEN: Ms. Richards, following on

22 from that, this is Chris Otten, D.C. For

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1 Reasonable Development. How does the opposite

2 work? So in other words if the project's impacts

3 or aspects, characteristics contravene or

4 contradict Comprehensive Plan policies, how does

5 that, I guess, work in your calculation of

6 reducing special merit?

7 MS. RICHARDS: Well again as stated,

8 the overall consistencies, the threshold test.

9 So if a project's features contravene the

10 Comprehensive Plan and we're speaking like --

11 just as a general principle of how the plan is

12 applied, in terms of -- if there's actual

13 contravention, then the project does not apply.

14 So therefore if it's not consistent,

15 then you don't really address the special merit

16 because overall consistency is where you're

17 getting.

18 MR. OTTEN: And when you mentioned

19 mitigation in a project, is that -- that doesn't

20 count as a special benefit? You're mitigating

21 something as an impact. Is that -- would that be

22 flipped up to a benefit?

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1 MS. RICHARDS: No. If there's -- the

2 Act and the HPRB and Zoning say that there

3 shouldn't be any double-count or rather courts

4 have said that in looking at these cases. If

5 something is offered in mitigation, then it

6 doesn't count as special merit.

7 MR. OTTEN: And I guess the -- Ms.

8 Brown mentioned kind of a list of the components

9 of the project, one of them being the park and

10 the recreation center. The public is paying for

11 that, if I'm not mistaken. If the public is

12 paying for the benefits in a project, is that

13 therefore a public benefit? Or is that

14 considered a special -- does that rise up to

15 special merit, if the public is paying for it?

16 MS. RICHARDS: Well, that's a novel

17 question. But no. Obviously, if the District --

18 I mean if the District is paying for something,

19 then it's a tax-based expenditure, budgeted

20 expenditure.

21 MR. OTTEN: Okay, thank you.

22 MR. BYRNE: Okay.

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1 MS. FERSTER: I have one more follow-

2 up for Ms. Barragan based on Ms. Richards'

3 testimony, and the question for you Ms. Barragan

4 is you've heard Ms. Richards' testimony. You've

5 been qualified as an expert in urban planning.

6 Do you concur in her testimony?

7 MS. BARRAGAN: Yes, I do. I had one

8 comment since I -- St. Elizabeth is definitely

9 one of those projects that emulates as historic

10 preservation, a large site area. As far as the

11 community benefits, there was 1.3 million, a 1.3

12 million grant for pre-apprenticeship for St.

13 Elizabeth's back in 2010, when the project --

14 when it was actually -- when constructed started

15 already happening.

16 But if you look at DCFBI's data,

17 current data today as far as unemployment

18 specifically in Ward 8, while unemployment has

19 gone down, it has not gone down below the pre-

20 recession level.

21 So it shows that while you have, you

22 know, this grantor very well intended in terms of

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1 employment, even CBEs for that particular

2 project, the end result, the social indicators of

3 actually seeing benefits for the community that

4 is targeted for that community to see benefits

5 hasn't worked.

6 That's really important, and right now

7 St. Elizabeth's, in the phase that it's in, is

8 faced -- it hasn't been fully funded, and they're

9 actually going to be moving DHS uses outside the

10 City. So if anything, it really proves that

11 these CBEs at that scale of millions of dollars

12 grants over time, it's not working.

13 MR. BYRNE: Okay. Well, maybe this is

14 a good place to make a pause, right. You have

15 more witnesses I believe?

16 MS. FERSTER: Yes, we do.

17 MR. BYRNE: How many more can I ask?

18 Three more. We have to vacate the room, so I

19 think we'll stop. So the hearing is scheduled to

20 continue next Monday, the 18th, and due to

21 governmental exigencies, we're going to start at

22 noon on that day. I don't know if the Zoning

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1 Commission's meeting, we'll find out. They are?

2 Okay. Well, we'll have to go to five.

3 I hope with all my heart that that

4 will be the last session, but I don't know.

5 MS. BROWN: Mr. Byrne, do you know if

6 the Zoning Commission is meeting on the night of

7 the 18th, so that we can continue past five

8 o'clock?

9 MR. BYRNE: I just got a nod from Mr.

10 Callcott that they think it is a meeting.

11 MS. BROWN: I'm sorry?

12 MR. BYRNE: Mr. Callcott thinks that

13 they are meeting that night.

14 MS. FERSTER: And one more question.

15 Can we at this point clarify that the webcast

16 will be available also at the Monday proceeding?

17 MR. BYRNE: No.

18 MS. FERSTER: Is that it will not be

19 available?

20 MR. BYRNE: No. We can't -- I don't

21 know. I mean I'm looking at Mr. Callcott. He

22 doesn't know. I mean this was all -- this is all

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1 just good inadvertence, and you know, I don't

2 know that there's a great benefit to this being -

3 - I don't think there's a great benefit to this

4 being webcast.

5 VOICE: It's actually very helpful.

6 MR. BYRNE: I appreciate you think

7 that.

8 MS. FERSTER: And I would again say

9 that considering particularly that there will be

10 members -- the next hearing will be when members

11 of the public will testify, that it is

12 particularly important that they be able to

13 follow along, so that they know approximately

14 when that point in the proceeding that members of

15 the public who wish to testify can come, because

16 otherwise, you know, they have to take time off

17 from their jobs, off from their families,

18 etcetera.

19 So if Mr. Callcott does not know yet,

20 I would ask that as soon as he finds out, that

21 he'd let the parties know so that we can tell as

22 many people as possible that this resource will

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1 be available.

2 MR. BYRNE: Well, I mean the -- I will

3 consult with Mr. Callcott about the availability

4 of it, and I will -- the HPO office will send an

5 order to the Council about it.

6 MS. BROWN: Mr. Byrne, I have another

7 scheduling question.

8 MR. BYRNE: Please.

9 MS. BROWN: Given that we've taken the

10 full allotted time today and we're starting at

11 noon, I was wondering if we could have an

12 estimate, best guess from Ms. Ferster and Mr.

13 Otten about how long they think their

14 presentation will take.

15 MR. BYRNE: So we have three. She has

16 three witnesses and one panel?

17 MS. FERSTER: Yes, and that will be it

18 for us.

19 MR. BYRNE: Okay.

20 MS. BROWN: And I understood that. I

21 was just asking a time estimate.

22 MS. FERSTER: Oh, oh.

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1 MR. BYRNE: That's harder.

2 MS. FERSTER: That's harder.

3 MR. BYRNE: And hour and a half maybe.

4 MS. BROWN: How long would it take for

5 the --

6 MR. BYRNE: Well, we did three hours,

7 no three hours. No, we did two and a half hours

8 for your five witnesses.

9 MS. BROWN: If Ms. Ferster could tell

10 --

11 MS. FERSTER: Six. We had six.

12 MS. BROWN: --us who the witnesses

13 are. We know that one will be Ms. Saleem, I

14 understand, and if we have the other two where I

15 can -- I can understand how much time I would

16 need to cross-examine them. I have not been

17 taking a lot of time cross-examining.

18 MR. BYRNE: No, you haven't. Do you

19 want --- are you prepared to tell ---

20 MS. BROWN: No.

21 MR. BYRNE: Mr. Otten, how many

22 witnesses?

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1 MR. OTTEN: I think we'll have two,

2 and I don't think we'll be more than an hour,

3 probably 45 minutes.

4 MR. BYRNE: 45 minutes?

5 MR. OTTEN: Yeah.

6 MS. BROWN: And then if Ms. Richards

7 could provide her written testimony, either via

8 email or written to me the next day or two, that

9 would be appreciated.

10 MR. BYRNE: Okay, and with those

11 reports that you cited, please, that would be

12 helpful. Okay.

13 MR. OTTEN: Mr. Byrne, will we ever

14 get the applicants' 200 page July 14th submission

15 electronically that I can share with my experts?

16 MR. BYRNE: No, no. I don't think

17 that that's required and I think you've got what

18 you've got. You've got what I have.

19 MR. OTTEN: So I have to make copies

20 of 200 pages?

21 MR. BYRNE: Or loan it to them.

22 MR. OTTEN: I really, I guess I just

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1 want to put on the record, I'm having a hard time

2 understanding. They presented it electronically

3 through a laptop and a projector. Therefore it's

4 electronic. So they're choosing not to send it,

5 and we don't understand why. Why is it? I don't

6 understand.

7 MR. BYRNE: Okay.

8 MR. OTTEN: My tax dollars are paying

9 for it, so why aren't you sending it to me?

10 MR. BYRNE: It's not going to happen,

11 so let's --

12 MR. OTTEN: It's ridiculous.

13 MR. BYRNE: That's the first time you

14 said that, sir.

15 MR. OTTEN: That's correct.

16 MS. BROWN: I have one final question.

17 We don't know how long the public witnesses will

18 take. I know that they will be limited I think

19 to three minutes.

20 MR. BYRNE: Yes, and we have quite a

21 number in writing. They don't necessarily need

22 to have them orally as well.

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1 MS. BROWN: Out of an abundance of

2 caution, I hesitate to even ask, but do we need

3 another day in case it needs to carry over?

4 MR. BYRNE: Why? It would be really

5 really -- I mean I will -- I will consult with

6 the Office of Planning about that. Obviously our

7 interests are all, everybody wants to finish the

8 case, but everybody wants to have their say

9 appropriately, and I get that.

10 I don't -- I think maybe at this point

11 we can wait and see what happens and then set the

12 date if we need to on the 18th. I think it -- I

13 don't think -- I think it's going to be -- I

14 would rather do that then set a date now.

15 MS. BROWN: And I would ask for

16 consideration, obviously no decision but just for

17 your consideration, whether perhaps rebuttal,

18 surrebuttal, closing, can all be put in writing

19 as opposed to necessarily a hearing, and we could

20 have cross-documents as necessary.

21 MR. BYRNE: Okay. Yes sir. What

22 organization? Why don't you come next week and

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1 then we can talk about your organization and

2 whether you can have five instead of three, okay.

3 (Off-microphone comment.)

4 MR. BYRNE: I understand ma'am, and

5 that would be my preference. But because of

6 stuff at the Office of Planning, I'm not able to

7 do that. I'm sorry.

8 PARTICIPANT: Why not the next month?

9 MR. BYRNE: Because we already have a

10 date scheduled where the parties are available to

11 come, and we have to try to get the hearing in

12 then. So it's five o'clock and I --

13 MS. FERSTER: One more item. Mr.

14 Thakkar had promised to get us some information,

15 and he approached me during the break and said I

16 have it for me. So I wanted to ask him --

17 MS. BROWN: We do have it, I'm sorry.

18 Thanks for reminding me.

19 MR. BYRNE: Okay. Are you all right?

20 MS. BROWN: For the record, in order

21 to distinguish this from the earlier version

22 submitted today, this is printed in black and

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1 white, and the total unit count is 660 units. So

2 for the record, so we don't get it confused

3 later.

4 MR. BYRNE: Okay, good. So that is

5 the current plan for the number of units to which

6 --

7 MS. BROWN: Correct, so it can

8 reconcile.

9 MR. BYRNE: Okay, thank you. Okay.

10 Thank you everybody.

11 (Whereupon, the above-entitled matter

12 went off the record at 5:05 p.m.)

13

14

15

16

17

18

19

20

21

22

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A 44:3,6 45:13,14 acre 104:17 116:4 244:22 278:2,17

A.2d 326:16 328:1 45:19,22 46:2,10 234:1 364:16 283:3 300:18
328:3 47:7,8 82:20 99:1 365:1 adaptor 225:18
a.m 1:15 4:2 103:22 99:3,21 100:9 acreage 116:1 add 13:13 111:15
104:1 130:22 108:17 118:9 acres 104:7 225:8 210:9 211:15
131:1 119:9 120:9,17 297:19 301:19,20 270:2 280:6
Aakash 22:10 128:18 130:3 Act 4:14 5:2 11:8 293:15
32:12 154:8,13,18 160:3 120:22 184:4 add-on 293:14
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86:8 287:7 308:18 305:21 306:17 248:4,12 251:13 addition 34:3 94:11
332:18 307:22 310:15 251:17 252:8 188:2 215:16
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1038 **
 387

340:22 188:16 213:9,16 119:8,10 192:22 237:2 240:18

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1039 **
 388

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1040 **
 389

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1041 **
 390

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1042 **
 391

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1043 **
 392

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264:13,21 265:20 158:17 191:22 248:6 251:1,7 18:3,8,13 19:13
266:3,15,19 267:1 208:13 222:5 255:19 257:13 20:14,18,22 21:7
267:7,12,16,19 248:2 277:19 267:12,17 269:1,9 21:11,15,19 22:2
268:3,7,11,21 283:18 285:9 269:15,18 274:16 22:7 23:3,5 24:3
269:6,10,14,17,20 344:21 275:21 276:4,21 24:21 25:13,20
270:4,13,15,19 builder 111:12 276:22 277:4,13 26:20 27:3,11,15
280:22 281:1,16 building 33:10 34:4 299:18 300:20 27:21 28:3,16
281:19 282:3,9,16 35:17,21 36:6,6 301:8,18,21 304:1 31:2,7 32:1,4 35:7
282:22 283:8,17 36:10 51:12 56:10 307:2 312:18,20 37:1 38:22 39:5

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1044 **
 393

39:13,22 40:4,8 188:19 189:1 384:19 385:4,9 310:7 352:13

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182:13,22 183:3 383:4,21 384:4,9 306:9 309:20 145:19 146:12

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1045 **
 394

166:10 167:14 cell 10:11,12,18 central 279:18 58:12 60:2 68:17

168:3 169:6 115:21 116:9 345:20 characteristics
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catacombs 256:1 259:20 260:8,18 Chairman 325:22 Chinatown 274:22
catastrophe 211:3 273:2 277:22 challenge 180:15 choice 184:7,10
catastrophic 278:5,10,12,18 231:15 185:14 189:11
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caution 383:2 63:2 83:19 89:8 changed 49:7,9 104:4 372:22
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CBE 350:21 369:9 234:8 283:9 306:6 199:10 200:6 chronic 343:6
CBEs 376:1,11 307:22 311:5 351:18 church 177:17,18
CCGM 138:4 261:4 317:7 318:2 changes 188:9 270:1
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celebrates 281:5 305:6,10 316:18 225:12 251:22 citations 313:5
Celebrating 63:22 317:19 366:4 characteristic cite 171:11 235:1

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1046 **
 395

326:6,9,15,16 92:15 93:8,10 240:14 331:10 colloquy 166:1

328:3 360:21 249:22 273:11 337:21 338:5 color 276:7 306:8
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cited 234:20 313:7 351:4 clearly 16:16 colored 135:12,13
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1047 **
 396

commercial 111:5 337:14,18 352:4 compliance 74:17 152:22

114:1 267:14 352:12 353:18 180:12 304:1 concept 249:20
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340:14 356:4 359:16,18 351:2 249:19
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309:5 320:14 64:4 65:5 84:10 concentrating 203:12,14,14

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1048 **
 397

condominium 195:5 220:18 229:7 230:7 276:4 217:16 223:3

207:22 228:1 238:3 295:10 299:21 304:11 226:3,10 230:20
condominiums 326:7 365:4 349:6 233:9 242:22
228:22 383:16,17 constituting 313:18 276:5 333:14
condos 38:19 considered 36:18 construct 228:1 347:22 357:7
conduct 14:20,21 38:3 67:5 126:13 constructed 102:7 contiguous 59:5,11
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consideration constantly 330:1 85:18 234:12
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1049 **
 398

conventional 136:15 137:6 234:5 264:14 223:9

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cost 134:2 136:12 215:10 233:22 criteria 123:15 cut 140:3 142:8,10

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1050 **
 399

221:18 D.C.'s 184:19 274:8 death 329:13 143:11 222:16

cutesy 357:15 dab 51:22 debate 208:5 325:18 330:16
cuts 141:22 173:20 daily 52:6,11 210:13 334:1 335:14
295:19 dais 26:15 decades 82:17 degrees 219:21
cutting 101:5 dangerous 67:6 311:11 334:2 271:5
141:21 143:18,19 data 19:14 309:14 December 215:9 delay 9:9 171:22
143:19 375:16,17 decent 70:9 172:5
CV 174:10,14 date 34:8 48:9 decide 11:7 103:4 delays 345:6
176:11 179:19 280:12 311:8 127:5 219:8 delegated 331:20
325:10 327:1 383:12,14 384:10 decided 198:14 delete 319:12,12,13
CVS 356:20 dated 36:12 54:5,10 decision 56:3 77:7 deleterious 214:5
cycle 329:16 57:4 78:3 82:3 127:12 delisting 223:4,14
330:12 dates 48:9 79:10 184:8 189:11 delivery 118:21
Czech 255:21 309:11 190:4 192:8,10 deluge 200:20
dating 346:17 194:16,20 197:5 demand 208:1,15
D David 57:1,9 227:18 229:4,5,6 210:13 212:18
D 320:7 247:12 248:11 230:2 255:2 213:4 353:15
D.C 5:7 6:7 22:21 250:9 258:7,13 258:12,15 291:7 demands 345:21
24:18 26:8 43:18 Davida 343:3 291:17,21 294:15 demeanor 170:22
44:2 45:1,7,17 Davide 268:18 313:20 314:4,7 171:3 172:18
46:12,17 47:2 day 8:8,12 13:21 326:10,17 383:16 173:4
52:1 56:18 74:10 21:2 75:19 76:16 decisions 190:19 demolish 4:8
80:3,9 104:5 166:5 317:22 291:17 348:7 249:12 252:19
116:10 119:4 358:1 376:22 declined 254:16 260:2,5
139:9,10,18,21 381:8 383:3 decrease 200:4 demolished 106:14
141:6 142:5,17 days 6:18 decreased 195:17 249:5 258:19,21
147:5 148:5 dc 1:15 2:5,10 dedicate 224:18 259:6,12 360:18
149:14 168:10 129:20,21 198:21 dedicated 38:12 demolishing 195:4
183:10,17 184:22 267:11 97:13 271:17 299:19 301:8
195:11 196:16 DC-based 215:4 deed 74:9 demolition 5:8,14
200:17 203:7 DCFBI's 375:16 deemed 249:5 125:4,8 126:8
210:16 213:8,10 DCPL 247:11,16,20 319:14 364:21 219:2 228:3,8,11
215:14,17 216:11 254:9 257:15 deep 187:17 188:16 228:16 229:16
228:5 245:13 261:12,15 263:21 defer 335:21 336:3 230:4,10 248:2,5
246:19,22 256:8 264:1,3 265:13 deference 335:2,8 248:13 251:19
257:9 258:20 DCPL's 261:8 335:14 260:17 283:2,4
260:2,2 264:14 DCRA 119:2 define 89:17 110:3 286:3 287:15
271:14 272:9 dead 14:4 177:22 291:18 299:5
279:18 286:17 deal 175:14 255:18 defined 77:7 308:5 358:11
313:20 314:3,5 266:12 293:16 183:18 304:12 362:13
324:7 325:13,17 336:4 347:17 305:22 demonstrate
325:21 326:10,17 dealing 144:20 defining 58:6,12 123:15 299:5
327:3 328:14,17 160:22 269:9 59:12 60:1,7 337:7
329:17 330:8 283:10 284:12 definitely 317:2 demonstrates 74:9
331:3,9 332:17 297:2 320:2 375:8 278:17 308:22
333:3 335:6 deals 337:12 342:3 definition 337:16 denied 21:3
336:21 350:16 342:8 definitions 206:5 denominator 260:9
352:5,8,20 372:22 dealt 178:3 270:1 degree 109:8 dense 49:17 226:6

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1051 **
 400

227:5 290:22 293:15 244:22 245:5 Dettman's 334:13

densities 340:13 298:22 299:14,20 deterioration develop 277:21
density 48:22 49:3 300:1,2 301:13 244:13 278:1 283:19 314:9
49:7,7 50:2 89:18 302:5,8 303:2 283:21 301:7 developed 112:21
90:3,6 157:14 309:4 314:17 determination 167:1 200:19
227:11 340:13,14 315:10,15,21 71:12 115:11 275:2,5 277:2
340:15 355:14,14 316:2,12 339:13,19 280:2 327:6
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256:12 215:16 248:3 338:1 developer 160:10
department 80:10 252:18 determine 79:20 160:12 192:6
93:21 94:4 designation 234:12 95:20 217:11 250:2 254:17
Department's 250:15,20 279:2 determined 36:7 275:8 279:16
291:12 designed 50:16 55:20 56:12,14 318:12,13,19,21
dependency 280:2 73:14 224:9 60:1 68:8 228:8 319:15 320:19
depending 149:3 267:13 275:4 229:22 305:12 developer's 219:16
depicted 44:16 277:1 282:3 300:5 362:6 367:8,18,20 277:16 278:10
46:5 275:1 301:1 303:7 determines 106:7 developer- 324:7
deprived 356:16 designer 276:10 determining 127:8 Developer-driven
deputy 1:8 23:16 designers 275:9,11 347:15 307:4
derelict 301:14 300:7 Dettman 22:15,15 developers 151:7
derived 326:21 designing 45:21 80:20,20 81:2,12 200:17 298:19
350:21 designs 272:22 81:16 82:6,9,19 301:12 302:15
describe 99:2 273:15 275:12 83:12 84:3,11,18 303:13 308:7
178:22 179:20 281:22 324:22 85:13 87:13,17 348:6
203:2 205:20 desire 67:19 278:11 88:15,22 89:3,11 developing 32:21
described 207:8 285:10 89:15,20 90:14,22 153:22 154:2
217:10 desired 307:18 91:7,11,14,17 298:21 318:16
describes 203:4 despite 272:14 92:1,5,20 93:6,14 328:20 329:15
327:1 332:2 93:18 96:5 97:10 development 1:8
describing 138:6 destabilize 143:21 97:12,16,20 98:22 6:7 22:11 26:8
147:6 211:11 149:11 99:5 100:16 101:7 34:15 35:16 56:8
descriptions destroy 225:10,12 101:9,13 104:6,11 89:8 104:6 105:22
138:20,22 destroyed 220:20 105:6,9 107:6,11 111:20 127:4
desert 356:9 222:12 223:12 108:10,21 109:5 153:16 168:11
deserve 201:17 destroying 230:20 109:12,20 110:1 176:18 177:2,5
272:18 destroys 85:19 110:17,18 111:3 178:8,12 179:2
design 28:19 33:20 destruction 223:1 111:15 113:22 187:10 192:2
62:1 161:3,13 248:5 299:7 114:6,12,14 201:22 209:14
217:4 221:17 358:11 115:20 116:3,7,12 211:3 214:1 215:8
222:5 225:1 detail 24:13 88:5 116:19 117:21 216:10 219:6,13
249:15,19 250:12 211:15 326:4 118:13,19 119:2 223:16 224:2
254:1 257:9,16 328:12 348:2 119:13,19 120:4 226:20 227:6,12
258:10 271:19 354:3 120:12,14 121:8 231:11,15 233:9
273:9,11 274:12 detailed 348:8 121:10,13,17 242:11,11,16,18
274:15 275:13,19 details 23:11 122:3 123:21 253:7 254:11,14
276:6,11,14 223:22 124:5 156:4 334:9 259:10 273:12
277:15 278:22 deteriorate 301:12 334:15,21 343:9 276:16 279:21
279:13 280:12 deteriorated 244:9 347:1,17 299:3 302:11

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1052 **
 401

303:4,22 304:2 dioxide 92:19 93:12 discussing 121:11 distribution 152:3

307:9,10,21 309:2 dire 325:19 discussion 59:11 152:6,17 153:2
309:4 319:20 direct 8:19 19:7 232:7 264:14,19 district 1:1,7,13
321:19 322:3,4,19 35:1 36:21 52:15 314:6 5:21 57:14 93:21
322:21 323:12 88:16 114:2,8,18 discussions 101:14 136:4
328:14 330:20 115:13 142:3 160:17 248:11 151:19 155:14
340:19,22 343:12 205:12 239:15 diseases 343:6 171:9 172:7
343:17 344:3 240:10 251:10 disfiguration 231:2 176:17 177:9,20
345:22 349:19 285:6 Disneyesque 279:7 183:20 185:6
350:7 352:14,22 directed 26:21 disparities 193:15 188:6 192:21
357:4,8 373:1 60:11 134:15 disparity 185:4 193:12 205:21
development-rel... 265:8 320:3 215:15 216:1,3
219:1 directing 345:19 disperse 342:10 217:3 223:3
development/his... direction 14:22 dispersed 343:5 225:13 237:20
242:14 directions 69:7,10 dispersion 153:17 243:11 247:14
developments directly 31:3 96:9 displaced 201:20 252:15 254:18
321:14 359:2 238:22 239:1 202:15 204:11 255:6 269:5,5
devil's 214:3 director 22:16 206:19 207:2 274:10 277:3,6
devoted 37:17,19 23:12 246:22 displacement 295:19 305:5
38:5 101:19,22 directors 271:15 102:19,21 111:5 306:18 309:13,19
104:21 Diridon 275:3 114:1,3,8,19,22 337:18 344:13,15
DHS 315:12 376:9 dirt 110:7 115:13,16 174:16 345:19 351:5,16
diagram 86:16 disabled 202:3 174:20 175:10 357:20 363:8
Dialysis 343:3 disagree 27:9 28:9 198:22 200:21 370:4,5,12 371:10
difference 145:15 75:9 236:3 237:13 displacing 207:13 374:17,18
148:4 166:9 310:3 261:22 262:4,9 disposed 34:13 District's 151:20
335:19 291:4,8 294:20 35:13,14 180:15 185:17
differences 212:22 332:22 disposing 35:18 224:1 302:21
different 18:9 39:3 disagreed 250:11 36:16 343:14 349:4
78:1,8,9,9 106:19 294:15 disposition 21:10 districts 248:7
111:10 113:4 disagreement 321:19 272:7
127:9 137:3,6,6 27:19 disproportionately disturbance 300:3
144:12 145:5 disagrees 27:8 184:20 disturbed 346:6
146:9 147:3 disappearance dispute 197:9 disturbing 279:9
161:14 165:2,9 280:11 dissonant 279:8 dividers 222:22
171:8 193:21 discourage 67:21 distance 108:13 DMPED 23:2,4 24:7
195:2,6 201:15 discovery 19:16 357:2,16 24:8,11 25:6 26:9
236:18 285:4 80:5 distant 354:13 32:7 152:5 279:21
308:14 309:9 discretion 8:19 distinct 86:18 doctor's 100:2
311:3 312:5 9:16 105:22 106:6 307:5 331:15 document 26:4
315:17 319:21,21 106:8 172:13 distinction 272:17 75:11 118:14
343:1 352:1 358:7 discuss 67:18 332:4 148:17 164:16,21
362:14 168:6 227:2,18 distinctive 274:18 211:13 235:5
difficult 13:5 discussed 78:2 distinguish 239:16 295:1,2 334:7
dime 277:10 99:9 124:7 163:15 384:21 documentation
diminish 241:2 264:1,2 distinguishes 78:20 243:8,9
dinosaur 79:13 discusses 42:2 220:14 documenting 199:3
dint 280:1 217:3 346:19 distracted 114:12 documents 48:19

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1053 **
 402

58:4 217:13 drew 33:19 Eastman 22:21 59:3,6 60:3,10

370:16 drink 87:7 56:6 61:4 62:6,16 63:8
doing 15:17 30:17 drinking 87:1 easy 343:5 63:12,17 64:2,8
30:19 32:18 37:21 drive 167:15 357:3 eating 86:22 64:14,21 65:7,12
41:20 81:16 driven 324:8 echo 357:17 65:17 66:5,13,18
106:21 126:14,15 driver 341:11 echoed 341:5 67:1,10,16 68:5
144:2 161:11 driving 356:19 347:12 68:19,22 69:4,9
167:21 168:1 drop 352:16 ecological 346:16 69:14,19 70:4,7
170:2 238:14 dropped 289:2 economic 1:8 70:12,19,22 71:8
281:11 due 24:20 69:22 162:21 164:9 71:18,22 72:7,15
dollar 137:1 344:14 166:13 172:4 274:5 343:12,16 72:18 73:17 74:14
370:9 247:22 248:1 344:3 349:19 74:18,21 75:10,17
dollars 203:8 301:8 376:20 economically 75:21 76:1,6 77:5
352:11 358:19 duplication 5:18 254:8,20 77:11,16 78:8,15
360:19 361:8 duplicative 348:17 economics 208:3 79:3,8,11,15,17
376:11 382:8 DuPont 203:18 edge 159:19 80:1,11 83:20
dome 263:12 duty 184:3 185:11 Edgewood 200:7 84:19 109:20
dominated 279:5 188:10 189:6,22 200:14,16 209:12 110:4,13,20
dominating 221:8 190:5,17 191:18 education 119:17 Eighty 186:15
domination 273:2 191:20 192:6,11 120:16 267:3 either 6:11 100:13
Donohoe 9:6 194:20 297:7 316:16 156:11,13 177:13
Donohue 2:4 dwelling 100:6 343:15 352:20 201:3 213:13
door 108:8 202:1 108:5 educational 119:16 217:7 218:14
Doren 329:7 dying 318:1 120:2 358:6 222:17 277:5
dot 129:20,20,21,21 dystopian 202:6 educators 317:17 328:5 344:19
double-count 279:11 effect 109:19 355:7 356:3
374:3 156:21 184:9 360:19 361:19
double-counted E 185:20 193:15 381:7
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doubly 246:9 eager 277:19 281:17 291:14 electronic 15:2,9
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72:11,21 85:20 172:14,21 254:22 effects 109:14 31:11 125:19
279:18 384:21 183:15 157:21 382:4
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dozens 247:17 324:15,15 effort 276:11 13:21 14:6,7,10
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drafted 247:13 earning 37:18,20 271:22 381:15 382:2
drafting 248:12 186:3 204:16 EHT 22:14 53:22 element 104:16
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dramatically 208:8 easily 290:11 243:14 223:21 224:4,11
drawing 43:10,13 east 65:4 84:1,22 EIA 315:2 280:12 315:22
43:16,17 274:11 297:18 300:18 Eig 22:13,13 42:11 324:22 340:18
drawings 17:21 301:5 306:5,20 42:18 43:2 54:1,3 341:2,9,10,15,22
18:3 29:13 56:6 310:6,7 311:15 54:6,11,16,22 342:3,8 343:12
60:15 112:20 317:19 55:8,15 56:5,14 345:16 346:12,18
319:12 eastern 65:3 56:21 57:12,22 346:19 347:13
dream 279:10 310:20 58:3,9,14,19,22 348:1,1,2 356:7

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1054 **
 403

372:9,12,16 empty 206:21 entitlement 106:1 establishment

elements 29:14 emulates 375:9 entity 358:9 342:9
109:1 122:14,15 encompasses entrance 45:9 estate 23:1 32:21
222:10 225:16,22 309:20 entrances 159:10 75:21 76:5,21
239:20 276:9,18 encourage 230:17 159:15 77:2,14,22 180:5
279:4 300:4 230:18 enumerates 217:1 214:1 326:8
301:11 302:9 encouraged 329:7 environment 94:5 estimate 103:11
322:3 338:7 341:7 encroaches 252:9 216:22 220:20 379:12,21
341:16 346:22 253:7 247:4 estimator 144:6
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366:9 252:13 92:17 93:10,17 303:18,19 343:7
elevated 274:4 endangered 247:21 109:1 119:3 274:2 343:15 378:18
305:6 ended 200:12 303:2 Europe 278:20
elevates 96:19 endorsed 290:22 envisioned 248:19 287:22
eligibility 326:19 energy 94:4 303:2 equal 120:9 180:8 evacuation 116:22
eliminates 71:16 engineer 133:5 equality 184:14 117:6
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375:8 262:3,9,10,12 equally 233:7 evaluated 60:20
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300:19 301:5,17 engineer's 262:5 equate 226:21 evaluating 223:18
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embarrassment engineers 261:8 213:11 event 11:11 21:2
223:15 290:14 equipment 44:4,9 140:18,19
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229:9 230:2 230:16 299:15 equitable 153:2 335:21
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embedded 277:15 ensure 55:10 74:16 equivalency 231:18 26:7,9,15 29:16
emblematic 277:14 122:7 145:17 equivalent 307:17 32:7 383:7,8
embrace 272:20 180:12 187:8 erected 229:9 385:10
281:3 ensuring 77:19 escape 248:16 everybody's 126:3
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216:14 224:7 enter 181:13 especially 77:11 everyone's 214:22
225:4 entered 5:15 104:13 163:16 350:12
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employee 82:4,5,12 224:4 252:22 110:21 138:6 308:21
117:21 118:1 259:2 302:16 251:18 307:15 evidenced 305:17
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343:20 entirely 194:7 344:12 eviscerates 226:3
employment 351:7 249:20 251:16 established 102:14 evocative 280:14
351:10,11,20 252:7 307:6 338:15 evolution 272:15
352:8,11 370:2,2 entitled 122:6 establishing evolved 249:3
370:5,14 376:1 335:1 218:17 344:10 exacerbated 345:6

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1055 **
 404

exacerbation 62:10 199:13 374:20 335:16 336:10

exact 53:13,14 excused 296:6 expense 219:10 experts 14:1 19:12
62:17 88:16 106:5 executive 246:22 276:19 181:21 335:1
137:11 138:17 264:12 expensive 144:4 381:15
144:7 147:5 exemplary 50:4,6 208:22 237:7 experts' 12:13
165:12,15,19 75:20 183:21 330:17 expire 39:9,20
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exactly 27:18 48:8 249:13,22 250:7 212:17 220:13 151:15 155:18
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175:7 203:17 272:12,17 275:14 268:22 271:6 explaining 46:1
239:12 324:1 275:21 276:5 297:6 298:16 explanation 75:15
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examination 15:18 293:19 295:3 325:21 326:13,21 371:8
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examine 15:15 27:1 exemplifies 301:5 332:17 333:22 225:18
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342:12 220:3 311:22 174:20 175:2,19 354:18
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exceeding 193:11 221:15 292:15 235:16,19 236:6 extraordinary
exceeds 98:10 existing 28:15,21 238:10,14 240:21 145:16 249:14
192:15 88:12 110:21 241:13,16 244:18 250:16 258:9
exception 66:6 114:3,5,9,15,19 265:19 266:4,6,8 278:19
171:9 119:12 125:22 266:16 270:11,15 extreme 248:20
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191:2,11,12 206:18 218:2 289:20 297:3,9 EYA 22:11 32:15
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188:1 290:5 300:3 302:9 331:9 332:1,12,18 eyes 286:15
excludes 92:12 302:12 304:4 333:1,2,8,13,15 eyesight 70:9
excluding 185:20 306:7,17 315:16 333:20 334:10,20 eyesore 273:22
191:15 259:9 exists 99:20 120:9 334:22 335:5,6,8
exclusionary 120:10 336:1,13 375:5 F
188:17 expansion 293:4 expertise 25:4 fabric 228:19
exclusively 234:19 expansive 221:14 178:15 179:21 229:15
excuse 127:14 expect 153:8 181:4 325:20 facade 249:3
152:21 162:5 expenditure 374:19 327:11 332:15 facades 252:2,3,5

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1056 **
 405

252:12 factors 133:4,15 212:1 feel 202:10 291:6

face 16:12 173:18 facts 78:10 192:3 fantastic 69:7,10 feeling 254:2
faced 376:8 354:17 far 45:5 62:17 78:19 feet 89:14,19,22,22
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facilities 118:9,17 fail 306:16 174:13 186:5 156:18 288:7
118:21 119:16 failed 300:8 304:18 196:7 213:16 306:21
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153:18,20 154:1,2 277:16 349:20 354:5 364:9 Ferster 2:9 6:4,22
154:9,15,18 155:4 fair 29:15 30:6 65:1 375:10,17 7:2,5,8,9 10:9,14
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216:17 221:14 190:18 192:7,12 feat 216:12 169:12 170:4,6,8
304:10,10,19 194:21 195:21,22 feature 92:12,12 170:14 171:18,21
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1057 **
 406

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1058 **
 407

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1059 **
 408

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1060 **
 409

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1061 **
 410

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1062 **
 411

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1063 **
 412

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267:15 272:5 253:16 327:2 96:14 111:7 328:2

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1064 **
 413

Jose 275:4 225:12,16 278:13 140:2 142:15 333:11 339:22

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1065 **
 414

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1066 **
 415

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1067 **
 416

marks 239:3 312:2 58:18 180:17 174:22 194:5 377:21,22 379:2

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1068 **
 417

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92:2 104:7 281:19 364:12,18 365:11 262:8,18,20,22 mitigated 90:10
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mentioned 17:4 366:14,22 369:10 264:9,19 265:1,10 253:14
45:13 60:21,22 372:6,7,17 373:6 million 203:8 mitigating 205:4
95:2 99:14 107:15 373:15 374:6,15 344:14 351:5,19 373:20
137:13 139:3 meriting 201:13 352:3,11 358:15 mitigation 44:7
164:5 190:21 276:20 360:19 361:8 92:3,10 95:3 99:6
196:2 202:19 merits 188:8 227:3 370:9,12 375:11 99:12,13 175:9
272:4 302:20 309:1 337:1 375:12 205:2 364:22
314:14 363:19 message 7:12 millions 358:18,18 365:1,8 373:19
373:18 374:8 met 75:16 215:12 360:18 376:11 374:5
mentioning 138:1 248:16,22 mind 123:2 130:14 mix 267:16 342:2
mentions 58:12 metal 50:14 207:7 210:3 mixed 4:11 279:22
221:17 methods 145:10 277:14 311:22 303:6

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1069 **
 418

modeled 279:9 106:20 107:22 NCPC 82:4,8 86:15 needs 100:4,8

modeling 51:14 165:16,17 201:3 86:18 87:10,14,21 130:20 173:12
94:8 274:19 282:11 118:1 196:15 246:4
moderate 88:13 357:9 ND 111:20 122:22 284:15 286:14
89:6,21 90:6 multi-generational 124:3,10 323:6,7 366:11 383:3
231:1 340:12,14 200:10 201:19 323:13,19 324:21 negates 319:4
355:14 multi-modalism near 147:15 209:15 negative 162:11,11
modes 36:14 280:6 278:6,11 310:7 163:5 214:8
modicum 275:9 multi-purpose nearby 345:8 negatives 163:7
moment 12:20 270:21 nearest 305:14,20 neglect 247:22
25:11 205:5 multiple 300:10 nearly 180:5 181:2 neglected 182:13
Monday 1:11 330:22 185:6 negotiated 368:20
376:20 377:16 museum 276:2 necessarily 35:9 negotiations 367:2
money 157:7 281:5 84:11 100:13 367:14
319:16 343:21 290:8 354:12 neighbor 353:17
350:12 361:15 N 365:16 382:21 neighborhood
money's 352:6 N.W 228:2 247:8 383:19 99:19 111:20
moniker 272:18 name 4:4 22:10 necessary 5:9 112:4 121:12,21
monitor 8:3,22 26:7 32:12 151:5 19:11 133:6 173:7 122:7,9,17,20
129:14 162:3 177:15,15 225:3 228:13 123:2 183:16
Montgomery 275:7 214:19 215:2 231:13 248:14 188:2 201:18
month 19:10 203:6 268:18 271:12 299:8 339:3 203:10,15 204:13
384:8 298:12 358:10,12 383:20 209:22 210:4
Monument 72:12 name's 135:5 Necklace 73:7 214:5 303:4,4
86:12 282:8 246:21 216:14 224:7 304:2 321:12,15
monuments 72:21 narrow 279:17 225:4 322:11,19,20
morning 4:3 6:22 nation 185:10 need 5:13 17:8 323:5,6 324:4,20
7:1 9:3,4,20 26:6 national 56:19 57:3 20:10 21:5 44:3 361:13 366:20
motion 11:12 21:3 57:10,13 58:4,15 47:15 74:2 103:11 368:10,16
motivated 285:11 69:12,15 176:3 106:7,8 120:2 neighborhood-se...
Mount 268:19 215:19,22 216:2,8 123:18 129:12 356:6 357:6
move 57:19 61:12 216:22 217:6,14 130:6,8 148:13 neighborhoods
80:19 91:22 121:3 218:22 223:5,6,8 149:7 150:20 180:12 185:8,22
181:17 190:4 223:10 226:14 167:20 169:12,14 200:9,17,18 203:1
200:17 201:21 234:13,16,18 182:15 186:3 206:22 207:18
207:19 208:11,13 254:1 255:17 196:21,22 205:8 neither 219:22
214:13,13 217:12 271:16 272:1 208:17 213:1 291:18
296:3 339:9 276:1,20 305:7 223:20 229:2 neither/or 317:14
344:22 352:13 235:22 237:4 NEPA 315:2
movement 73:7 Nationally 244:15 246:7 288:4 net 162:14 163:22
216:13 natural 345:20 289:10,14 306:11 164:1 235:20,22
movie 279:11 346:3 311:13 317:19 264:16,17
moving 30:10 89:7 nature 24:22 35:22 325:8,8 332:8 network 82:21
120:1,7 376:9 59:5,12,22 60:8 342:5,22 361:19 347:7
multi-disciplinary 272:22 333:8,9 380:16 382:21 never 10:2 11:2,3
26:14 344:16 383:2,12 14:2 65:15 66:11
multi-family 32:8 Navy 268:1 269:4 needed 10:5 258:14 103:8 131:9,11,12
32:22 102:9 272:4 311:14 369:19 194:11 218:22

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1070 **
 419

222:10 338:3 164:4 notion 153:15 26:17 36:20 39:10

344:4,5 non-historic notoriously 211:19 45:15 46:16 47:9
new 30:22 56:11 359:13 notwithstanding 52:14 59:14 61:17
63:6 71:2 73:21 non-integrally 228:14 244:13 62:13 75:6 83:4
88:10 92:16 93:9 275:17 novel 374:16 85:5,21 86:5,17
94:20 95:5 96:3 non-lawyer 181:3 November 196:4 87:22 102:20
101:18,18,19,22 non-profit 271:16 number 10:18 115:4 142:2
104:7 106:15 359:7,7 11:16 12:5 14:19 155:20 160:19
109:17 110:11 non-profits 358:6 15:3,17 17:4 18:7 163:1 170:2
119:22 142:10 non-residential 18:9,9,11,13,14 174:21 175:1,2
153:22 164:16 302:22 18:15,18,19,21 181:8 193:21
172:4 176:18 non-residents 25:12,21 32:19 237:18 286:20
178:8 182:14 351:16 36:1,2 52:15 53:3 326:1 368:3
193:21 197:19,19 non-senior 186:11 53:4,13 92:16 objections 284:17
201:22 215:11 non-urgent 310:15 93:9 96:10 98:8,9 297:13
221:5 226:4,19,19 noon 376:22 98:11,12,16 objectively 272:16
229:10,16,18 379:11 100:17 102:3 objectives 218:5
230:5,9,10 234:8 normally 129:8 106:18 157:19 224:12,13 332:20
248:14 249:19 north 43:8 62:10 159:7,14 165:6,13 objects 60:12
252:8,12,16 253:7 64:7 65:4,6 71:20 165:15,19 166:22 obligation 192:20
268:8,12,15 269:1 71:22 72:2 83:16 188:3 291:16 obligatory 357:10
269:6 273:20 88:11 89:4,13 320:12 349:1 obliterating 221:4
274:1 276:12 116:16,21 133:11 352:8 353:11 obsolete 273:21
286:15 302:11 199:4,10 209:13 357:4 360:22 obtain 5:9 123:9
303:3 304:9 307:4 250:3 273:4 278:6 371:16 382:21 obviate 335:15
323:11 343:18 279:15 306:9,10 385:5 obvious 30:11
344:1,9,10,22 309:18,20 354:8,9 numbered 63:16 68:12
345:22 357:3 358:4 numbers 53:14 obviously 150:15
nice 199:22 353:1 north- 71:16 106:9 165:2,8,9 171:13 213:1
353:20 354:12 north-south 72:5 166:13,16,18 255:12 346:7
356:12 357:14 84:16,18,22 211:20 351:17 362:9 374:17
night 316:20 377:6 northern 64:12 NW 1:14 2:4,9 4:10 383:6,16
377:13 157:5 306:9 occupancy 147:12
nine 97:11 168:9,13 309:20 O 148:7
169:19 201:7 northwest 64:8,10 o'clock 167:20 occupied 66:8
204:15 65:6 377:8 384:12 107:9,9 124:9
nod 377:9 Nos 4:14 OAH 172:11 260:1
noise 90:10,12,15 note 20:15 149:5 object 27:22 92:21 occupy 148:12
90:19,20 91:3,6 195:11 243:20 120:11 152:18 occur 113:7 168:19
nomination 215:21 280:10 306:7 170:12,19 192:17 occurred 204:12
217:1,7,14 234:13 350:14 194:9 197:14 345:4
243:11 252:16 noted 11:14 29:1 199:14 331:6,8 occurring 268:6
nominations 58:15 249:20 351:14 367:12,22 368:2 October 172:4,6
non- 217:2 notes 75:2 164:22 369:2 Off-microphone
non-built 219:18 224:5 250:10 objected 88:1 32:3 127:16,20
231:5 notice 1:15 190:17 325:16 128:1,5,22 130:4
non-D.C 351:20 213:22 objecting 193:19 212:10,13 214:16
non-economic noticed 26:11 60:5 objection 11:13 384:3

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1071 **
 420

offer 174:20 271:2 44:11,15 45:6 179:15 181:15,21 385:4,9,9

350:11 358:6 47:20 49:11 50:3 182:2,4,22 183:1 old 255:14 263:3
offered 204:8 271:3 50:9 52:9 53:6,22 189:1,17 190:21 345:1
286:7 304:22 56:9,16 57:15 194:13 195:21 older 151:13,16
325:12 329:2 58:5 59:9,10,19 196:10,13 197:1,7 200:18
355:19 374:5 61:20 63:3,14,19 198:15 204:4 Olmstead 28:13,18
offering 355:19 63:20 64:10 65:11 205:5 206:17 61:1 66:10 67:5
office 1:7 7:13 8:16 69:6,16,22 74:6 212:4,6,9,11,16 73:14 85:1 86:9
9:18,21 62:9 64:4 74:22 75:8 78:21 215:2 237:1 220:16 221:11
74:22 91:18 132:2 80:15,19,19 81:15 239:13,22 240:13 222:19 224:10
171:14 189:9 82:3,13,22 83:9 241:5 242:7 366:7
196:7 225:9 226:6 85:13 87:6,10 243:19 244:18 Olmstead's 67:18
227:6 229:6 230:6 88:8 89:11,17 245:16 246:1,12 221:16 222:7
251:15 275:3 90:8,18 91:5,8,9 246:14 256:18,20 omission 184:8
278:12 307:1 93:7,18 96:2,6 258:5,17 259:19 once 4:4 106:1
317:21 320:1 97:17 100:10,22 260:12,14 261:11 191:13 257:11
344:15 379:4 101:8 103:14 261:18 263:17 306:2 310:9 316:5
383:6 384:6 104:2,4 105:15 264:13 265:15,16 320:6,6 323:8
officer 1:15 4:6 107:6,14 108:2 266:14,18 268:21 one-fourth 225:6
5:20 57:2 58:1 109:9 110:16 286:1 288:18 one-pager 196:16
250:9 258:13 112:1,14 113:10 290:19 291:8 one-third 67:11
271:12 327:20 113:16,22 114:21 292:17 294:9,13 ones 15:9 48:7
officers 328:7 116:8,14 117:14 295:6 296:2,7,16 55:14 125:13
offices 91:15 118:4,16,16 296:22 298:6 133:9,16 145:21
official 264:5 119:14 121:4,9 311:19 312:12 204:20 219:9,11
offset 188:17 123:3 124:4,14 320:22 321:22 227:19 259:6
offsite 353:2 125:17 126:9 322:9 323:2,5 278:21 342:12,15
oh 14:14 25:13 55:1 127:11,21 128:2 327:14,17 328:4,4 345:1
73:13 76:6 77:9 129:10 130:12,12 328:10,16 333:6 ongoing 301:4
127:21 135:2 131:2,3,16 132:4 335:10,11 338:4 347:10
157:20 164:13 132:10,12 133:18 338:21 339:16 online 142:16
177:6 178:4 134:19 135:17 340:6,8,8,22 onsite 348:21
182:18 195:19 136:8,17 137:1,5 341:12,15,16 OP 136:15
246:8 265:15 137:22 138:10,14 342:21 345:8,12 open 28:14,21
267:4,7 288:12 139:2,16 140:9,17 347:5 348:14,14 58:11,13 59:4,11
321:2 351:4 363:5 141:2 142:11,19 351:9 352:10 59:22 60:8 67:6,8
369:5 372:20 143:16 149:19 354:22 355:17 67:12 75:3 78:5
379:22,22 150:17,20 151:12 359:1,5 360:6,8 104:7,10,15,18,22
okay 7:4 10:22 14:9 152:10 155:16 361:21 362:1,19 116:1,2 127:3
16:22 20:14,22 156:10 160:8,12 362:22 363:9,14 194:15 220:7,11
21:18 22:2,9 161:19,22 164:19 364:5,10 369:5,21 220:20 221:2,8,12
25:20 26:2,6 27:5 165:22 166:11 370:17 371:3,11 224:15,20,20
28:8 32:4,6,10,17 167:2,11 169:9 371:21 372:2,18 225:3,7,13 231:4
33:1,4,8 34:11,20 170:3,13 171:11 372:19,19,20 231:7 232:9,11,13
35:17 36:11,11 171:21 173:8 374:21,22 376:13 232:17,20 233:5
37:4,12 38:18 174:4,5,9,12 377:2 379:19 233:11,16,22
40:20 41:4,21 175:12,13 176:8 381:10,12 382:7 234:4 240:2
42:14 43:4,12,17 178:13 179:4,14 383:21 384:2,19 242:17 243:3

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1072 **
 421

278:8,14 302:12 options 225:10 32:15,17 33:1,4,8 93:7,16 95:2,12

308:1 317:22 300:2 33:21 34:2,7,11 95:20 96:2,6,8,12
346:15 347:3,7,9 orally 382:22 34:19 35:3,12 96:17 97:5,11,17
365:20 orange 135:12 36:5,11 37:4,12 98:3,12,18 100:10
opened 68:1,6 139:5,5,20 141:4 37:21 38:7,11,18 100:22 101:8
opening 82:20 oranges 212:20 39:1,6,12,18 102:2,8,16,22
154:2 order 17:8 40:13 40:10,16,20 41:4 103:7,10,12,15
operate 153:20 44:7 81:21 123:6 41:8,9,19,22 42:8 104:4,4 105:1,15
154:4 161:7 123:12,22 124:2 42:14,21 43:4,11 105:18 106:6,22
212:18 148:12 185:11 43:15,17,22 44:11 107:6,14,18 108:2
operates 190:2 189:18 218:17 44:15,20 45:3,6 108:18,22 109:9
operating 124:9 242:9 250:10 45:12 46:4,12 109:18,22 110:2
163:13 353:17 253:12 288:15 47:5,10,13,20 110:10,16,19
operation 65:21 289:11 322:21 48:5,14,18,21 111:4,8 112:6,14
operational 220:8 324:2 337:10,21 49:11,16 50:3,9 112:17 113:6,10
operations 67:12 379:5 384:20 50:17,22 51:5,10 113:16,18,22
opined 249:10 orders 4:15 51:12,18,21 52:4 114:11,21 115:9
opinion 144:17 organic 227:14 52:9 53:7,22 54:4 115:15,20 116:5,8
235:7 239:15,17 275:19 54:8,12,17 55:4 116:14,20 117:3
241:12 263:6,20 organization 55:13,21 56:9,16 117:11,14 118:4
288:17 289:4 219:19 220:5,6,10 56:22 57:8,15 118:16,20 119:10
320:5 355:5 358:8 220:14 221:9,12 58:5,10,17,20 119:14,20 120:6
opinions 265:14 225:5 231:7 232:8 59:4,9,19 60:4,20 121:4,9,14,19
opponent 20:17 247:1 264:11 61:10,15,20 62:8 123:3 124:12,14
168:2 278:13 383:22 63:3,11,15,19 125:3,11,18 126:5
opponents 7:18 384:1 64:3,9,15,22 126:10,15 127:11
opportunities organizations 65:11,22 66:9,15 128:12 130:14,17
101:2 279:20 179:9 66:21 67:3,13 131:4,16,18,20
280:10 organizing 76:19 68:1,7,15,21 69:1 132:6,12 133:18
opportunity 8:6 180:6 69:6,11,16,22 133:22 134:4,19
23:21 41:17 original 61:1 71:9 70:5,8,14,18 71:1 135:11,17,22
165:10 182:5 125:2 221:4,6 71:4,14,19 72:4,9 136:3,8,14,17,19
188:7 232:1 273:6 225:18 226:2,9 72:16,20 73:4,11 137:1,5,9,13,18
280:17 originally 79:15 73:18 74:4,8,15 137:22 138:3,10
opposed 198:9 223:11 224:9 74:19,22 75:8,14 138:14,19 139:2,8
202:13 232:15,17 247:22 252:17 75:18 76:3,7,15 139:12,16 140:2,9
233:17 326:13 origins 68:11 76:22 77:13,18 140:12,17,20
328:9 383:19 Orlando 271:21 78:6,11,21 79:4,9 141:2,12,15,19
opposite 373:1 Otten 6:6,21,21 79:12,16,18 80:8 142:11,15,19
opposition 6:9,12 13:6,16 14:15 80:15,19 81:10,15 143:15 144:3,8,12
6:16 13:5 17:9 15:3 16:3 21:3,7 82:2,7,13,22 83:6 145:9,18 146:3,7
42:20 178:21 21:13,18 22:3 83:9,14 84:8,15 146:15,18 147:3,4
179:6 199:16 23:3,9,20 24:7 85:2,16 86:1,11 147:18,22 148:3
247:5 26:2,6,7 27:2,5,13 86:21 87:6,10,16 148:16,20 149:9
opposition's 12:21 27:16 28:2,6,20 87:19 88:7,18 149:13,19 150:10
13:1 326:1 29:3,9,15,20,22 89:2,10,12,17 150:17,18,20
option 105:8 30:6,14,21 31:11 90:8,18 91:5,8,13 151:1,8,12 152:2
249:10 31:20 32:5,6,10 91:15,22 92:14 152:10,15,21

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1073 **
 422

153:10 154:6,12 overlap 329:18 125:17 132:13,13 52:12 55:18 62:20

154:17,21 155:3 overruled 193:19 147:2 148:16 62:21 65:2,15
155:10,16,22 oversaturated 157:17 165:4,5 66:7 70:10 72:22
156:10 157:3,10 214:8 234:21 238:18 73:6,20 77:3
157:15,22 158:4,8 oversaturation 239:5 272:13 78:12 101:6
158:16 159:4,8,20 162:18 281:1,19 282:10 104:17 116:4,5
160:1,8,12,16 overshadow 282:22 283:9 133:11 154:8,14
161:5,10,16,19,22 242:20 312:15 313:12 169:5 176:3 194:5
162:5,10,16 163:3 overshadowed 319:1 381:14 194:7,8 215:7,18
164:6,10 169:20 279:5 pages 13:20 29:5 220:13 222:4
212:16 213:18 Oversight 273:9 43:5 46:6 47:22 223:7 234:1
214:2 245:10,12 overturn 350:17 50:4 109:1 381:20 241:14,18 246:15
245:15 295:15,16 overweighs 348:13 pale 281:9 252:14 254:1
296:1 372:20,21 overwhelm 227:12 pallet 50:15 276:7 255:17 272:1
372:22 373:18 owned 301:6 303:1 314:18 273:10,15,19
374:7,21 379:13 owner 107:8,9 panel 3:3 27:14 274:8,20 276:3
380:21 381:1,5,13 ownership 68:19 31:17 52:10 182:3 281:20 306:21
381:19,22 382:8 107:17,19,21 379:16 336:21 364:16
382:12,15 308:8 Pantheon 255:12 365:1,3 374:9
Otten's 14:13 35:21 262:15,17 263:8 parking 64:18
124:1 169:3,6 P 263:10 84:13 158:13,17
ought 273:16 P-R-O-C-E-E-D-I-... paper 165:3 170:22 158:19,22 159:4
276:16 335:7,7 4:1 paradise 280:8 159:10,15,16
outcomes 213:3 p.m 245:21,22 paragraph 88:20,20 273:8 280:8 294:4
outdoor 308:2 296:13,14 385:12 90:9 93:17 108:3 303:14,18
353:18 package 35:20 117:15,16 240:1,1 parks 104:7,21
outlay 358:20 52:19 358:4,21 240:7,10,11 283:1 122:11,18 224:8
outlined 106:17 359:6,13 283:9 313:13 347:2
231:11 page 3:2 26:12,16 322:2 part 5:18 22:11
outlines 224:11 28:11 29:9 30:1 paragraphs 239:19 24:14,15,19 28:18
outright 361:17 33:9 34:12,16 parameters 60:18 33:17 35:1,5
outside 60:17 36:12 42:1 43:12 307:18 42:16 44:2 47:16
283:7 376:9 44:16 46:7,22 paraphrasing 47:19 52:18 54:9
outweigh 4:20 47:22 54:17 56:17 238:22 56:6 67:7 68:20
230:14 231:9 63:4,18,21 65:22 parcel 37:13,16,17 69:11,13 73:6
overall 38:19 66:2,9 67:4,18 38:16 89:4 90:5,7 77:18 94:19 96:15
108:15 124:5 68:4 70:2,6 73:12 156:21,22 157:5 104:8 108:9,15
166:22 195:18 73:13 74:8,17 158:2 159:2 110:10 115:18
216:6 223:2 78:22 79:5 81:10 166:14 282:10 116:1 124:19,20
243:22 244:3 82:13 83:14 84:15 parceling 30:22 125:1 145:3 164:8
276:6 337:5,22 88:8,18 90:9 Pardon 212:12 169:4 171:3
338:1,3,16 339:13 92:15 93:7 97:11 parents 310:18 180:22 202:9
339:19 373:8,16 98:21 101:1 104:6 316:21 208:7 209:15
overbuild 148:17 105:3 107:4 108:3 Paris 255:22 216:13 224:7
149:5,8,20 150:1 111:4 114:1 park 6:5 7:10,19 225:4,19 236:4,7
278:3 289:6,8 116:14,18 117:15 11:18 24:15,19 236:8 240:2,7
overbuilding 118:4,14 119:15 25:1 29:1 36:2 252:9 259:14,17
196:19 124:17 125:13,14 42:16 43:20 44:1 265:6 274:2

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1074 **
 423

284:18 286:18 passed 196:14 perceivable 290:11 perspective 123:1

303:15 306:9 248:4 perceived 273:22 163:21 227:4
309:19,20 311:14 passing 247:13 percent 36:17 233:15 237:6
327:18 329:5 passive 224:21 37:18,20 38:8,13 240:20 241:7
345:8 347:10 path 65:18 66:22 38:17,17 97:12,18 242:15
351:8 359:19 paths 66:16,19 97:19 98:2,3,7 pertinent 172:11
364:20 365:8 patterns 315:19 101:11,17,18,21 Peter 1:15 4:5
partially 133:20 pause 22:6 44:17 102:4 122:3 phase 33:13,14
234:17 48:3 54:21 96:7 185:22 186:12,15 315:4 324:10
PARTICIPANT 130:5 132:5 186:17,20,21 376:7
384:8 150:22 170:7 187:1,7,11 188:4 phased 300:16
participants 367:19 174:6 176:14 189:5 191:8,13,14 315:7 316:15
participate 257:20 196:12 205:6 196:20 200:3,5,5 phone 281:10
329:2 331:15 266:22 296:15 201:2,9,10,11 phones 10:11,12
367:2,13,17 309:22 376:14 204:17,17,20 10:19
participated 247:17 paved 109:3 221:2 251:21 phonetic 103:13
331:11 paves 280:7 253:3 255:7 170:10 329:7
participation paving 302:16 258:19 259:18 362:5
330:20 paying 207:21 260:17 301:18 photo 44:22
particular 174:3 374:10,12,15,18 302:13 306:19 photos 42:15
192:3 198:6 259:2 382:8 percentage 109:5 phrase 288:3
259:16 303:12 payroll 370:7 187:8 260:13 physical 60:12 61:6
310:10,14 311:6 PCPs 305:9 317:4 310:13 323:10 82:16 144:9 171:2
320:13 323:16 PDF 312:6 perception 221:6 173:7 178:4 217:9
339:21 346:15 pecuniary 275:18 308:11 219:21 226:22
352:4 353:3,5 pedestrian 72:1 Perfect 313:10 physically 170:18
365:21 366:9 96:9 perfectly 9:11 pick 183:5
376:1 pedestrians 65:18 peril 256:16 picnic 116:6
particularly 8:9 pediatric 306:12 perimeter 65:18 picture 282:10
12:2,7 286:3 342:17 period 79:10 pictures 128:3
295:20 337:3 pending 330:12 366:12 piece 170:22 227:7
364:22 378:9,12 350:15 periodically 112:21 362:19
parties 4:21 5:17 penned 87:17 Perkins 22:20 56:6 pierced 149:14
5:22 6:9,15,18 Pentgrad 362:4 permeable 302:16 piercing 149:10
11:19 25:19 people 19:15 24:22 permit 30:20 150:2
378:21 384:10 25:4 31:12 66:19 permits 106:4 piles 176:12
partly 170:20 67:21 87:3 91:1 227:22 228:5 piling 154:9
partner 345:8 91:14 99:17 persistence 274:2 pipe 28:9 142:10
Partners 1:7 9:7 100:19 103:19 person 32:2 42:5 149:14
12:18 174:22 119:22 120:7 107:12 132:8 pipes 140:4,21
298:21 131:12 147:8 170:20 206:7 142:8
partnership 345:2 148:8 164:7 personal 241:12 place 46:10 61:7
parts 4:20 24:18 167:16 204:16 264:8,10 62:18 64:5 210:4
29:8 31:14 196:18 207:1,13,18,20 personally 117:19 210:15 376:14
203:7 304:7 208:11,13,17 169:21 placed 77:20 78:12
342:11 209:12,21 213:2 persons 6:11 7:20 83:15 88:10
party 168:2 214:11 318:1 8:5,5 100:12 109:17
pass 196:5 205:7 378:22 188:4 placement 78:16

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1075 **
 424

places 10:16 56:20 325:14,18,22 309:3 314:22 88:15,16 90:11

57:4,11,13 213:7 327:3,5,6 328:15 315:4 319:7 324:6 107:10 112:5
247:21 255:19 328:17 329:4 325:18 327:15 118:13 125:1
317:20 330:5,10,11 331:2 329:18 330:1,16 132:19 134:13
placing 62:9 63:6 331:4,19,22 332:2 331:9,12,13 332:7 139:3 166:12
71:2,15 77:13 332:17,20 333:11 332:12 333:3 168:4 173:4
153:12 155:11 334:6,11,13,16,19 337:13,20 355:9 175:14 178:19
plain 30:18 52:1 335:6 336:4,21 356:3 375:5 383:6 190:20 198:15
155:7,13 221:20 337:2,5,9,22 384:6 199:17 209:2
232:16 233:7 338:16 339:3,9 plans 30:3,9 48:10 210:21 245:8
234:9 340:11 341:19 48:13 74:16 261:17 266:4,9
plainly 173:16 342:3,7,22 343:7 113:12 124:18,20 289:18 317:14
plan 34:15 35:16 344:3,5,7,9 125:9 151:9 326:4 327:7 351:3
45:22 46:1 48:11 345:12,14 346:22 224:18 297:15 377:15 378:14
48:11 49:12,12 347:19 348:10 328:20 329:14,15 383:10
50:1 54:7 60:11 355:13 359:19 330:21 348:3,7,8 pointing 43:19
61:5 63:22 66:1 365:15 372:6,9,14 348:9 points 14:16 77:21
69:3 70:3 71:21 373:4,10,11 385:5 plant 70:6 221:16 78:14 333:18
81:3,20 82:10 plan's 216:14 220:1 273:13,20 280:16 police 122:11
90:11 92:1 94:2,3 343:10 plantings 73:15 327:20 328:7
94:12 95:8 96:22 planned 34:7 platinum 303:22 policies 81:20
101:10,16 104:8 107:22 276:16 323:6 101:10 118:8
111:14 114:17 300:16 304:8 plausibility 349:9 155:6 301:9
118:7 121:11 359:2 plausible 338:22 332:20 347:17
122:4 124:17 planner 297:6,9,10 349:13 373:4
125:2,7 126:15,22 297:14 298:3 play 47:1 121:14 policy 104:13,15
127:3,4,4,8,10 318:6 325:13 235:9 118:17,18 119:7
133:3,15,19,19 326:2,6 329:8,10 plays 236:21 121:20 122:4,6
153:2 157:8 168:7 330:15 331:11 PLC 2:4 180:6 196:17
180:16,20 183:19 332:13 334:10 please 5:17 14:17 224:17 225:15
190:14 217:21,22 335:5 14:17 27:8 28:17 238:20 298:14
219:5,16,20 220:6 planners 298:18 40:6 83:10 104:3 346:10 347:3,5
220:17,19 221:5 311:12 314:21 117:2 123:4 135:3 349:17,17
222:7,11 223:20 317:17 328:6,19 138:2 155:9 political 11:11 41:8
223:21 224:1,8 331:14 182:17 183:4 politics 41:10
225:18 226:2,10 planning 1:8 5:4 194:1 214:18 pools 280:13
229:2 230:6 9:21 22:16 29:17 243:12 288:11 poor 214:11
231:12 238:10,13 49:13,16 62:1 296:17 368:4 pop 343:4
238:16,20 240:3,7 75:1 101:16 379:8 381:11 population 187:9
242:13 245:13 105:12 113:4 pleasing 219:12 193:16 195:11,16
252:19 276:6 121:12 123:1 plenty 316:21 195:18 200:4,11
286:12 291:21 126:18 183:22 plinth 220:21 208:10 306:14,19
292:8 294:16 189:9 218:7,9,16 plus 299:18 348:12 310:13
297:22 300:8,11 250:7 298:14,17 Poets 357:11 pored 331:21
300:12 301:1 298:22 299:22 point 13:7 44:1 portals 222:21
302:1,15 315:7 300:18 302:3,5 45:13,19 46:11 231:3 299:6
316:3,7,10,11 304:15,20 306:22 48:16 51:11 68:13 portion 104:14
320:13 322:17 307:5,11 308:7 81:5 84:17 86:2,3 123:22 126:3

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1076 **
 425

158:9,11 224:19 preference 384:5 219:3,4,16,17 140:17 294:22

229:14 278:9 preferred 337:8 223:16,17,22 351:11 355:21
314:16 338:8 341:20 224:16 225:2 presume 82:17
portions 131:8 345:11 346:10 226:13 227:4 282:19
ports 231:5 347:8,14 353:4 228:6 230:13,15 presuming 34:20
posed 210:10 255:1 365:17 366:13 231:8,10 235:21 289:6
posit 27:19 372:13 236:1 237:6,7 presumption
position 194:11 prehearing 34:12 238:11,15,21 229:10
237:15 257:16 82:11 107:5 220:3 239:6 240:21 Prete 268:19
262:4 286:9 290:7 preliminary 7:2 9:2 241:6,16 242:5,15 pretend 261:6
positions 133:10 11:15 246:17,19,22 pretty 70:15 84:8
197:17 331:16 premise 288:21 247:3,9,16 248:4 173:3 234:7
positive 162:7,15 prepare 12:13 249:8,10,17 250:8 239:20 324:21
163:4 17:18 243:10 251:13,15,15 prevent 139:19
possibilities 254:11 253:6,16,20 156:16 190:6,7
126:17 prepared 12:18,20 254:18 256:8,16 248:5
possibility 8:10 13:3,6,10 15:5 257:10,18,21 previous 125:9
possible 92:19 37:10 82:11 94:12 258:13 264:16,17 227:19 287:14
113:13 148:10 164:20 336:15 264:18 265:4 previously 134:20
159:22 171:1 380:19 270:22 271:22 135:8 174:18
225:3 233:4 prerequisite 326:19 274:3,13 282:4 175:19 197:17
242:10 244:19 prerogative 14:20 286:18 292:11 254:10
249:9 277:21 presence 173:7 297:15 299:3,10 price 102:8 203:9
283:19 296:9 present 8:21 13:5 299:12 304:3,13 208:18 211:16,21
378:22 18:22 227:13 304:21 307:4 prices 102:12 137:6
possibly 105:16 237:9 280:18 312:20,22 313:22 199:7,8 202:22
potential 127:6 287:3,16 290:21 333:21 334:2,3,6 203:2,13,14,14,20
153:19 156:20 308:21 317:8 345:16 346:18 203:22 207:15
158:5 160:17 presentation 6:3,8 347:4 364:16 208:1,8,14,22
272:21 281:3 29:2 297:3 379:14 375:10 210:1,19,21 214:4
293:7 presented 14:7 preserve 145:11 prides 223:17
potentially 141:17 15:3 26:11 47:21 219:10 225:5 primarily 192:20
poverty 182:9 48:10 86:19 96:18 278:7 243:13 351:10
practically 136:10 97:6 257:17 preserved 133:20 primary 305:6,10
pre- 50:12 375:19 262:12 299:4,13 194:7,14 222:10 309:10,17 311:13
pre-apprenticeship 382:2 284:4 286:13 316:17 342:17
375:12 preservation 1:2,14 301:18,22 315:14 343:5
preamble 224:3 4:14,19,20 7:13 353:9 principal 215:3
precautions 147:6 8:15 9:22 22:14 preserves 346:3 principally 351:6
precedent 11:5 33:16 54:6 57:2 preserving 132:18 370:13 371:5
78:5 192:13 58:1 60:11,16 142:22 158:14 principle 194:16
preclude 154:1 61:5 71:11 96:16 233:4 278:12 373:11
precluded 331:18 127:4 129:7 132:1 presided 131:13 principles 62:1
precursor 273:18 158:1 175:22 255:4 print 103:8
predominantly 176:2,4,6 178:10 president 247:12 printed 20:13 21:8
305:8 310:19,21 192:19 215:4,5,7 presiding 1:15 66:1 70:2 125:13
prefer 34:18 168:21 215:12,15 217:19 press 128:14 125:18,20 132:13
169:22 217:21 218:7,9,16 presumably 11:19 148:17 384:22

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1077 **
 426

printing 63:18 92:9,13 94:6 29:14 49:9 281:5 185:13,16,19,20

printout 15:4 25:11 96:16 99:10,14 304:10 186:1,8 187:13,18
157:19 167:4 170:15 programmed 226:7 187:20 188:8,11
printouts 18:19 197:16 297:8 programming 188:13,18 189:19
prior 5:16 13:1 347:22 377:16 300:4 304:14 190:2,4 191:1,11
16:19 46:6 60:4 378:14 317:15 191:18 192:8
69:17 106:3,18 proceedings 7:16 programs 122:9 197:10,11 205:22
118:1 278:16 8:4,11,16,20 9:13 project 4:11 5:6 206:19 209:9,18
290:2 302:19 10:6 368:14 19:20 24:9,14 211:10 214:5,10
344:2 process 6:17 10:3 28:12,22 29:18,19 215:8,12 217:17
priorities 218:17 10:3 19:16 24:20 30:2,8,20 31:15 219:6,13 222:12
219:4 367:20 49:13,17 105:22 31:21 36:1,18 225:8 226:11
priority 184:1 106:2 112:18 39:15,21 40:13,14 227:3 228:1,13
187:15 223:15 117:18,20 119:3 41:11 42:3,10 229:16,18 230:3
250:5 305:17 161:3 165:12,18 44:3,8,12,13 45:1 231:21 233:9
355:7 356:4 367:9 171:3 220:9 46:9 49:1,4,17 237:5 248:2
367:21 274:14 298:17 50:8 52:5,11,13 250:13 251:12,16
private 184:6 300:1 315:2,2 53:11 54:14 56:7 252:7 253:12,19
privately 303:1 335:19 356:10 61:12 73:21 75:3 254:8 256:10,12
privatized 69:2 processes 303:16 75:12 77:3 80:1 257:10,12 259:14
prized 307:2 produce 20:7,17 80:18 81:1,7,18 259:17 263:20
probably 24:21 produced 80:20 81:22 82:15 85:12 272:15 273:5,11
31:5 53:19 95:7 275:6,12 85:18 86:15 87:12 275:6,13,16
111:3 157:19 product 314:22 90:20,22 91:2 277:21 279:13,22
163:18 166:20 production 196:16 92:2,4,6,16 93:9 280:11 281:2
177:2 257:12 229:3 93:22 94:1,6,19 283:3,5,19 286:5
286:8 287:18 products 308:4 96:19,21 97:9,14 286:13 291:1,5
291:21 293:5 professional 98:10,19 100:12 293:15,19 294:18
328:6 347:22 144:17 176:1 101:1,2,20,20 295:11 299:11,15
354:6 381:3 241:21 271:5,6 102:7,7,10 105:3 302:2,7 303:6,20
probe 216:3 288:16 289:4 106:5,12 107:8 313:13 314:15,17
problem 209:7 299:22 306:1,3 108:4,6,11,16 319:4,5 321:18
219:3 293:8 332:5 318:4,12 325:21 109:7,15 111:17 337:6,15 338:8,12
340:17 326:21 328:19 111:18,22 112:20 338:15 341:18
problematic 12:3 329:8,10 331:14 113:15 114:18 344:17 347:2
problems 192:5 332:14 333:10 115:3 117:4 118:1 351:6,22 353:4,16
209:10 211:10 352:22 119:4 120:8 353:22 354:4,5,13
348:11 professionals 121:16 122:15,22 355:5,16 357:22
procedure 169:22 291:9,11 304:15 124:8,11 147:19 358:17 360:13,14
proceed 14:17 proffer 149:17 147:21,22 148:5,8 362:15,17,18,20
20:11 21:17 34:9 181:4 330:14 151:4 153:7 363:15 364:21
113:11 167:12 364:9 155:18 157:2 365:15 367:4
173:10 183:4 proffered 92:7 161:7 162:8,11 370:13 372:13,16
205:9 266:10 111:18 266:16 163:12 165:19 373:13,19 374:9
296:21 328:10 proffering 111:16 175:11 176:17,19 374:12 375:13
proceeding 7:13 profitable 157:7 177:2,18 179:11 376:2
8:8,22 9:9,11 307:7 180:9 181:1,10 project's 4:18 85:4
76:11 81:6 90:16 program 25:17 183:8,12,15 185:3 92:8 113:7 119:7

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1078 **
 427

187:14 188:14 247:6 253:21 353:7 358:12 231:13 242:2

222:18 230:13 337:1 344:4 361:1,18 381:7 251:5,6,8,8
231:8 253:15 proposals 260:5 provided 11:18 253:15,17 272:21
265:6 302:3 331:1 proposed 4:18 5:8 12:15 16:13,18,21 274:12 281:3
373:2,9 6:18 50:8 52:10 75:11 81:2 82:21 283:5 284:5
projected 50:18,21 55:17 65:2 71:21 83:13 84:19,21 285:13 286:6,10
51:4 73:20 75:12 89:7 106:19 112:4 299:8,16 300:12
projector 382:3 125:9 147:22 114:17 139:21 307:22 308:1
projects 106:13 225:22 228:8,21 165:1,3,8 196:17 337:11 374:10,11
147:7 177:19 229:19 230:8,13 232:18,21 285:3 374:13,15 378:11
178:3,6,12,20 253:12 260:7 299:13 305:4,17 378:15 382:17
184:17 193:9 273:12 279:6 326:22 341:14 publicly 68:9
238:11 241:7 280:7 295:19 provider 305:6,10 147:16 261:21
248:16 250:16 304:6 314:8 329:3 305:14,20 316:18 302:22
251:1 254:18 338:7 345:8 providers 306:3 PUD 33:18 166:15
267:20,22 268:15 372:13 317:5,5,10 359:8,13 360:13
269:4,11 272:6 proposes 148:8 provides 72:2 362:2
275:11 277:6 252:19 223:22 pulling 161:14
282:12 302:22 proposing 29:7 providing 19:1,4 purchase 39:3
303:1 324:7,9,13 200:22 322:14 99:21 207:7,14 purification 222:2
325:1 330:22 proposition 326:11 218:1,2 298:18 purifying 280:15
375:9 proprietary 16:6 303:17 304:18 purportedly 343:10
prominence 221:1 21:9 309:1 317:20 purpose 151:14
prominent 273:17 PROS 347:5 provision 198:6 251:17 252:7
promise 14:10 prosaic 272:21 208:6 346:9,10 253:20 256:11
16:10 182:18 protagonist 279:10 355:6 299:9 361:11,14
promised 5:19 protect 46:13 provisions 19:19 purposeful 84:13
11:21 384:14 345:19 238:19 343:10,17 purposely 73:14
promote 253:16 protected 78:18 344:9 345:14 301:14
promoting 271:17 184:7,9,11 190:3 proximity 101:3 purposes 99:20
proper 218:6 237:20 108:17 305:13 160:6 167:3 175:5
properly 15:14 protection 247:3,15 public 8:3,6,13 9:1 215:14 228:9,16
209:10 248:9 10:1,6,20 11:9 228:20 231:22
properties 64:12,15 prove 223:14 21:9,10,10 24:8 247:8 251:13
180:10 223:7 proved 317:16 24:13,14,18 36:16 253:5 263:19
236:22 244:22 proves 306:6 46:14 47:4 48:6 264:15 265:9
272:4 325:1 376:10 48:13,16 55:12 287:8,13,21
property 66:3 157:5 provide 4:22 10:4,6 65:16 66:6,11,12 291:20 299:12
162:20 207:1 13:14 15:16 16:10 66:14 99:1,3,17 313:14
209:16 214:9 16:17 17:11,12 100:12,15,17,19 pursuant 1:15
223:9 236:2,9,16 19:2,5,6,8,10 25:4 118:22 120:18 321:19
244:10 247:22 45:22 46:2 71:22 128:13,14,18 put 5:19 21:8 28:19
277:2 287:20 98:9 101:2 109:15 131:5,6,7 133:10 57:10 64:5 73:1
307:7,19,19 144:15 166:2,5,6 144:20 145:17 85:8 89:20 115:18
308:12,13,17 173:1 178:17 147:14 148:7,7 119:1 123:6 138:7
proportions 67:2 202:6,11 221:11 184:6 214:6 149:7 155:6
proposal 202:17 224:21 250:13 220:13 225:11 167:14 170:5
226:2 231:17 300:7 325:19 226:12,13 228:13 252:16 256:15

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1079 **
 428

280:8 290:5,8 queried 12:5 375:3 377:14 Rainier 268:20

319:16 342:14 querying 318:13 379:7 382:16 raise 7:6 11:15
350:3,13,18 357:7 question 4:21 question's 313:3 182:16 296:17
382:1 383:18 10:14 17:7 23:15 questioning 99:6 raised 180:20
puts 338:20 26:18 30:5 34:18 153:4 180:18 ramp 44:5,8 270:3
putting 150:7 34:19 37:1,2,3 360:12 random 161:14
158:19 317:5 38:10 40:9 42:6 questions 13:11 range 166:20,22
46:20 47:17 48:4 24:9 25:3,8 26:21 rankings 218:18
Q 53:2 57:6,19 27:8,17 28:4,10 ranks 218:11
qualification 297:2 59:18,21 61:14 31:3,13,18 73:5 rate 12:10 37:15
325:17 326:5 62:14 68:14 70:13 97:3 103:13 186:1 209:17
331:7 332:10 81:13 83:8,11 161:20 169:1 355:4,6,12 364:14
qualifications 85:10 91:21 92:22 202:19 205:20 rated 222:8,16
175:1,14 176:10 93:6 99:8 107:7 211:12 212:8 rating 123:8 277:7
178:14 181:9 107:13 110:18 240:15,18,19 277:8 307:20
266:13 270:20 115:9 118:15 243:8 257:4 ratings 277:9
271:1 331:8 120:5 121:3,18 264:22 267:2 ratio 38:20 107:10
332:10 134:19 142:7 280:21 290:18 107:11 135:14
qualified 173:2 150:15 154:11 311:17,18 312:14 rationale 126:11
174:18 175:19 155:9 161:2 321:10 355:3 RCLC 162:1
265:19 266:3,6,8 164:15 166:12 372:3 RCLCo 162:2
270:16 271:7,10 168:5,6,7 169:1,5 quick 124:16 RCLCo's 371:12
297:7,10 298:8 173:17 191:7 205:19 245:12 reach 186:4,5
318:11 323:18 193:4,5,7,18 256:21 257:3 210:18 211:2
325:11 326:2,12 194:1,10 197:2,15 265:20 309:9 213:11 307:12
332:6,12 333:8,20 198:1,2,4,10 quiet 40:6 104:3 reaching 10:21
333:21 334:9,14 204:7 205:14,17 quintile 211:1 303:21
335:22 367:15 206:2,8 210:9 213:17 reaction 171:2
375:5 211:9 213:6 232:5 quit 74:9 read 75:1 84:3
qualifies 308:12 234:10 235:11 quite 16:20 65:9 114:7,16 124:12
356:2 237:1,19 238:18 333:13 382:20 166:18 171:18
qualify 175:20 244:8 245:12 quotation 239:3,8 197:4 198:5
179:22 183:9 251:14 254:22 quote 77:10 220:6 242:22 261:1,2,12
297:5 325:7 255:9 256:21 223:8 239:15 261:15,20,20
332:18,22 333:4 262:7 265:20 240:7,10 326:18 264:19 265:10
334:20 336:13 272:12 284:2,3,19 quote-unquote 285:8 347:22
qualities 223:11 285:1,5,13,16,20 74:16 82:15 348:9 371:13
quality 75:4 92:18 287:10 288:11 quoted 229:5 readily 161:7
93:12,20 94:7,9 289:18 290:21 238:22 239:1 reading 37:14
94:16,22 95:1 293:13,17 294:12 258:6 93:14 124:1
137:7 162:19 295:8 297:14,20 quotes 77:6 258:8 333:11 372:5
178:16 251:9 312:1 316:10 ready 131:3 170:4
307:20 321:4 317:14 321:1 R 246:13 296:3
quantify 100:11 323:5 324:19 race 185:14 real 19:15 22:22
134:12 333:11 339:10 racial 182:9 184:15 32:21 78:17
quantity 366:17 355:18 362:12,14 racially 188:17 124:16 180:5
Quarter 84:20,20 367:16 368:5 rail 274:4 293:21 207:8 213:22
quasi- 11:10 369:2,4 374:17 rain 140:18,19 273:7 280:2

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1080 **
 429

292:22 309:14 371:22 131:21 138:8 138:4

339:20 341:11 recalls 47:13 164:18 172:14,20 references 75:20
350:8 351:1 receive 30:15 299:1 199:15 225:20 347:8
reality 303:15 324:16 240:14 245:21 referencing 56:22
realize 73:4 237:6 received 6:2 8:14 296:13 349:16 62:5 143:8
really 8:2,12 13:11 11:20,22 12:1,11 350:4,13 351:2 referring 33:12
20:10,22 41:16 13:18 112:8 371:13 382:1 35:21 43:14 89:9
60:6 96:12,15 receives 251:5 384:20 385:2,12 95:4 106:13 122:5
97:3 141:4 145:14 recession 375:20 recorder 128:16 199:14 291:22
150:14 153:7 reclaiming 304:4 records 67:13,14 293:3 363:7
161:7 193:14 recognize 25:15 recreation 89:8 refinement 218:20
199:2,8 200:6,6 78:2 173:14,19 104:21 108:14 reflecting 62:2
201:1,12,15 234:11 293:4 224:20 225:8 reflexive 27:7
202:14 203:6,6,10 312:12 347:3 365:6 366:1 reform 351:14
203:18,19 204:19 recognized 248:13 366:17 374:10 reframed 193:20
208:9,22 210:20 recognizes 248:7 recreational 224:21 refresh 151:2 204:5
211:8 237:4 239:9 recollection 89:15 346:16 refurbish 317:11
255:16 256:6 204:5 Recross 295:7 refurbishing
260:10 279:21 recommendation rectangular 66:3 299:17
311:14 323:19 61:21 71:10 recycling 271:17 regard 9:9 18:1
324:2 338:4,20 recommended red 88:19 139:5 106:18 144:17
344:17 345:12 215:19 218:2 309:15 145:15 175:3
354:19 358:10,10 reconcile 385:8 redefinition 218:20 190:15 331:17
363:12 373:15 reconfiguring redesign 280:11 338:6 355:18
376:6,10 381:22 159:9 286:14 regarding 76:4
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1081 **
 430

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1082 **
 431

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1083 **
 432

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1084 **
 433

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1085 **
 434

356:13 short 130:19 sidewalks 301:21 210:17 213:10

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1086 **
 435

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300:3,15,19,22 slightest 239:18 182:13 200:15 226:22 227:7
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302:10,13,14,16 slowly 200:9 211:18 214:21 232:18,21 233:4,5
303:13 304:4,11 smack 51:22 215:1 239:7 267:8 233:11,17,22
304:19 306:10 small 114:3,5,9,15 288:12 290:20 234:4 240:2 242:2
309:6 315:14,19 114:19,22 115:11 295:7 313:2 243:3,4 278:8,14
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344:16 345:15 308:3 348:3,6 377:11 384:7,17 303:6 308:1
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355:19,20 358:12 342:15 164:5 181:18,18 366:17
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362:5,6 366:9 snarkiness 21:1 210:20,22 213:6 220:20 221:3,8,12
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243:21 272:20 250:5 307:20 335:15,16 347:14 spans 159:17
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1087 **
 436

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368:11 348:20 349:6,10 spends 172:3 359:8,10,14
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207:4 264:7 366:14,21 369:10 109:14 206:12 224:22
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325:3 334:4 374:14,15 spot 309:18 308:9 312:19
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92:12 95:21 96:19 316:2 332:20 Spring 177:2,16 357:12,12
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187:14 188:5,8,15 365:17 366:13 300:19 301:4,17 246:2,18 297:1,21
189:19 190:7 372:8,13 314:14,22 316:11 297:21 323:8,9,12
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202:16 220:19,22 86:11 90:18 94:8 stabilization starting 25:21
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250:14,21 251:6 221:17 237:22 139:22 startups 354:1
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1088 **
 437

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294:7 89:5,13 116:17,21 364:17 subsidy 180:11
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Stearns 2:4 9:6 354:3 studio 268:19 136:1 141:3,13
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Steve 74:20,20 strips 222:20 369:15 371:16 188:8 198:8
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1089 **
 438

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212:18 213:4 surrebuttal 6:15 245:16 257:15 taller 83:16,17 84:6
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305:14 surrounding 99:19 319:10,11,13 taped 128:13
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352:14 354:19 surrounds 62:20 taken 4:19 148:11 370:18 382:8
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218:15 222:9 sustainability 231:9 238:3 264:3 351:10,12 370:2
343:10,11 312:21 264:5 342:16 371:6
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129:7 280:1 302:8,17 takes 169:19 teacher 352:22
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160:21 170:20 sustained 39:5 111:4 116:15,15 team 22:12 26:14
292:21 41:7 85:22 86:20 118:5 147:3 32:20 81:13 92:9
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172:15 204:2 246:4,8,9,11 talked 49:8 114:4 301:13
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240:14 257:1 sync 346:20 213:5 232:5 technique 111:12
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313:19 327:16 T 152:9 160:18 telecast 8:12,20
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1090 **
 439

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327:11 378:21 29:6 34:22 36:21 235:20 247:5 Thakkar 22:10,11
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301:4 353:6,12,16 52:2 53:17 57:18 24:5 27:3 28:5,6 86:22 97:21 98:5
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241:1 243:8,16,19 45:10 46:17 48:8 283:1,7 284:7,14 296:1,4,5,10,16
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1091 **
 440

314:19 328:8 208:2 209:11,16 255:14 263:3 351:17 354:21

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1092 **
 441

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275:7 357:8 265:3 twice 257:11 uncomfortably
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Traceries 22:14 tree 94:14,15 two 12:8 54:3 58:10 uncompromised
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Trader 364:4 76:5,10,20 77:2 174:9 177:19 342:20
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1093 **
 442

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1095 **
 444

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1096 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1097 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1098 **
 447

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1099 **
 448

C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Applications of Vision McMillan

Partners, LLC, and the D.C. ODMPED

Before: DC Historic Preservation Review Board Hearing

Date: 09-11-17

Place: Washington, DC

was duly recorded and accurately transcribed under

my direction; further, that said transcript is a

true and accurate record of the proceedings.

-~-~y5 c
-----------------------
Court Reporter

NEAL R. GROSS
COURT REPORTERS AND TRANSCRIBERS

(202) 234-4433 ** JPA.1100 **

1323 RHODE ISLAND AVE., N.W.
WASHINGTON, D.C. 20005-3701 www.nealrgross.com
[BLANK PAGE]

** JPA.1101 **
 1

GOVERNMENT OF THE DISTRICT OF COLUMBIA

HISTORIC PRESERVATION REVIEW BOARD

HEARING

-------------------------------:
IN THE MATTER OF: :
:
Application of Vision McMillan : HPA 14-393
Partners, LLC, and the District: HPA 15-133
of Columbia Office of the :
Deputy Mayor for Planning and :

Economic Development :

-------------------------------:

Monday,

September 18, 2017

The meeting of the District of Columbia

Historic Preservation Review Board convened in

Room 220 South of 441 4th Street, N.W.,

Washington, D.C., 20001, pursuant to notice, at

9:00 a.m., Peter Byrne, presiding.

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1102 **
 2

APPEARANCES:

On Behalf of the Applicants:

CAROLYN BROWN, ESQ.

Donohue and Stearns, PLC
1750 K Street, N.W.
Suite 12-34
Washington, DC 20006
(202) 763-7538
carolynbrown@donohuestearns.com

Contesting the Applicants:

ANDREA C. FERSTER, ESQ.

2121 Ward Court, N.W.
Fifth Floor
Washington, DC 20037
(202) 974-5142
aferster@railstotrails.org

Neal R. Gross and Co., Inc.

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** JPA.1103 **
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CONTENTS

WITNESSES

Tom Moriarty . . . . . . . . . . . . . . . . . . . 7
Anne Sellin. . . . . . . . . . . . . . . . . . . .29
Kirby Vining . . . . . . . . . . . . . . . . . . .41
Edward Johnson . . . . . . . . . . . . . . . . . 113
Len Bogardad . . . . . . . . . . . . . . . . . . 274
Emily Eig. . . . . . . . . . . . . . . . . . . . 314
Matthew Bell . . . . . . . . . . . . . . . . . . 347
Shane Dettman. . . . . . . . . . . . . . . . . . 375

PUBLIC WITNESSES

Andrea Rosen . . . . . . . . . . . . . . . . . . 209

Tony Norman. . . . . . . . . . . . . . . . . . . 213
Jerome Peloquin. . . . . . . . . . . . . . . . . 218
Ronald Gluck . . . . . . . . . . . . . . . . . . 222
Daniel Goldon-Wolkoff. . . . . . . . . . . . . . 225
Roger Robinson . . . . . . . . . . . . . . . . . 232
Robin Diener . . . . . . . . . . . . . . . . . . 241

Nicola Bastian . . . . . . . . . . . . . . . . . 246

Elizabeth Floyd. . . . . . . . . . . . . . . . . 249

G. Lee Aikin . . . . . . . . . . . . . . . . . . 255

Betsy McDaniel . . . . . . . . . . . . . . . . . 260

Robert Robinson. . . . . . . . . . . . . . . . . 264

Jane Huntington. . . . . . . . . . . . . . . . . 268

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1 P-R-O-C-E-E-D-I-N-G-S

2 9:05 a.m.

3 MR. BYRNE: Well, good morning,

4 everyone.

5 MS. FERSTER: Good morning.

6 MR. OTTEN: Good morning.

7 MR. BYRNE: This is a continuation of

8 a Mayor's Agent hearing on the McMillan Sand

9 Filtration Site, on remand from the Court of

10 Appeals. And again, these applications are

11 assigned Historic Preservation Act Nos. 15-393

12 and 15-135.

13 So, I think we are ready to go. Are

14 there any preliminary matters that need to be

15 addressed? No? Okay. Ms. Ferster, I think

16 you're -- are we up to your case?

17 MS. FERSTER: Good morning, Mr. Byrne.

18 I'm Andrea Ferster, counsel for Friends of

19 McMillan Park. We are finishing up our case. We

20 have three witnesses, one who will appear

21 telephonically.

22 MR. BYRNE: Okay. Are we -- I guess

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1 I'll ask, are we prepared for the telephonic? Do

2 we know --

3 PARTICIPANT: As far as I know, Mr.

4 Byrne.

5 MR. BYRNE: Okay.

6 PARTICIPANT: -- double check on the

7 status of a computer. If anybody needs to make a

8 presentation, we'll be back and we'll know that

9 for sure. We're expecting that -- I am sure we

10 are.

11 MR. BYRNE: Okay.

12 MS. FERSTER: She'll be our second

13 witness.

14 MR. BYRNE: Okay, good. So we can

15 start. Perhaps you could --

16 MS. FERSTER: And I would like to give

17 you Laura Richards' written testimony that she

18 didn't have prepared before now.

19 MR. BYRNE: Okay, great. So, good.

20 Receiving Laura Richards written testimony.

21 MS. FERSTER: Our first witness is

22 going to be Tom Moriarty. And we are seeking to

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1 qualify him as an expert in real estate

2 development strategies. I've provided you with

3 his CV, as well as a copy of his written

4 testimony.

5 He has over 35 years in experience in

6 commercial real estate analysis and strategy

7 based development. And I think his CV goes into

8 his experience, and background, and

9 qualifications in some detail.

10 MS. BROWN: Just one more moment.

11 MR. BYRNE: That's fine. I'm sorry,

12 Ms. Ferster, could you repeat again what his

13 expertise is being called again?

14 MS. FERSTER: Real estate development

15 strategies.

16 MS. BROWN: And is it real estate

17 generally, or retail?

18 MS. FERSTER: I think he has

19 experience in retail. He has experience in

20 commercial. He has experience in residential.

21 He is, perhaps he can describe that a little

22 better, your breadth of your experience.

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1 MR. MORIARTY: It goes well beyond

2 retail. That was a primary focus for most of my

3 career. But I've also worked with public/private

4 partnership assessments, community redevelopment

5 authorities, and so forth.

6 MS. BROWN: Thank you. I have no

7 objection.

8 MR. BYRNE: Okay. Very good. We can

9 proceed with the testimony of the expert.

10 MR. MORIARTY: Yes. Good morning, Mr.

11 Byrne. I'm here on behalf of the National Trust

12 for Historic Preservation regarding the proposed

13 terms of an agreement for redevelopment at the

14 McMillan Sand Filtration Site.

15 I have a background as a consultant

16 and real estate specialist with over 30 years'

17 experience in a range of projects, those

18 involving historic preservation issues, as well

19 as new development across the United States and

20 internationally.

21 My work has included evaluation of

22 public/private development agreements and

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1 partnerships with the U.S. Department of Housing

2 and Urban Development, state and regional

3 transportation authorities for public

4 redevelopment agencies, local governments, and

5 nonprofit institutions, on deal structures and

6 proffers by private development interests for the

7 benefit of the public sector.

8 As such, my experience has provided a

9 background to provide a review of the terms of

10 this proposed redevelopment program for the

11 McMillan Reservoir site in Washington, DC.

12 My interest in this project is not,

13 and I would stress that, not to criticize the

14 developers designated for redevelopment of the

15 McMillan site, not to challenge the application

16 to subdivide the site and raise the below grade

17 historic vaults in question, nor to question

18 whether redevelopment should happen.

19 I strongly support that this site

20 should integrate new uses, and provide new

21 revenues to the District of Columbia, while

22 preserving elements of the original structures

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1 and spaces on the site.

2 The VMP development team has completed

3 successful projects in the Washington, D.C. area.

4 And as commercial developers should be expected

5 to request any terms they can that will enhance

6 their ultimate profitability. That is what

7 developers do.

8 It's also recognized that the VMP

9 development team's investments at the site will

10 eventually add to the property tax base at the

11 site, as well as creating a number of short term

12 and permanent jobs.

13 However, some of the data provided

14 does not detail what the overall benefit would be

15 to the District of Columbia, in exchange for the

16 costs and risks assumed by both the developers

17 and by the District.

18 Without this type of detail it remains

19 unclear whether the level of benefit maximizes

20 return to the City, a core objective of the

21 McMillan redevelopment plan.

22 In addition, during the amount of time

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1 since the original development program was

2 created, the market has seen significant changes

3 in both real estate demand and property values in

4 the surrounding Stronghold, Bloomingdale, and

5 Brookland neighborhood that may suggest updating

6 the proposed program.

7 Changing real estate economics

8 indicate that a possible revised program could

9 generate considerably higher revenues both to VMP

10 and to the District of Columbia, while preserving

11 more of the site's historic open space features.

12 As a public asset redevelopment of the McMillan

13 site should achieve both objectives.

14 With the current terms in place it is

15 a concern that the District of Columbia is not

16 getting the maximum benefit possible from

17 transferring ownership and redevelopment of the

18 McMillan site from the city to private sector

19 redevelopment parcels.

20 As context for the overview of the

21 proposed deal structure I've enclosed a list of

22 the documents that were reviewed. They're the

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1 ones that have been on the table for a while.

2 Based on a review of these documents

3 a number of the fundamental terms and risks

4 originally included in the deal appear to have

5 shifted away from the development team, and have

6 been assumed by D.C. government.

7 The reallocation of these financial

8 risks, combined with presumed costs and benefits

9 resulting from special merits of the proposed

10 project do not appear to represent proportionate

11 risk in response to an exclusive designation as

12 project developers.

13 It is reasonable to ask that the

14 District of Columbia can and should negotiate

15 from a stronger position, given the size,

16 redevelopment potential, and prominence of the

17 McMillan site, and its investment of between $75

18 and $80 million dollars of public funds into the

19 project.

20 In my experience the typical public

21 sector approach for a potential redevelopment

22 site like McMillan would be for the governmental

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1 entity to receive competitive bids for

2 redevelopment, incorporating detailed analysis of

3 potential uses, specific assumptions regarding

4 both the overall project financing and sources

5 and uses of funds.

6 By reducing the comparative elements

7 to final bid amount, assuming other factors are

8 also comparable between bids, the offering

9 governmental agency would be assured that the

10 maximum public benefit would be generated by the

11 project, and at the lowest cost to government.

12 However, based on the terms described

13 in Section 9.1 of the LDDA, the District of

14 Columbia, not VMP as originally agreed, appears

15 to bear a significant part of the pre-development

16 costs for site improvements, soft costs incurred

17 during secure zoning, et cetera.

18 Under the new proposal the District of

19 Columbia will pay for the 6.2 acre public park

20 and community center, one of the major public

21 amenities provided by the project plan.

22 In addition, D.C. will maintain

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1 responsibility for the historic filtration

2 structures on the north and south portions of the

3 site. These historic amenities and open spaces

4 above them will not be transferred to VMP.

5 The benefits, other than reducing

6 costs to VMP to the public, for a site that is

7 already publicly owned under this approach are

8 not of proportionate to responsibility that are

9 required by the District over time. VMP has

10 little to no risk involved in this part of the

11 project.

12 Under the earlier version of the terms

13 VMP would have assumed the costs and risks

14 associated for pre-development expenses at the

15 McMillan site. Under the new terms it does not

16 appear that the VMP development team is assuming

17 the kinds of financial risks that would make an

18 exclusive development rights agreement

19 appropriate.

20 Without competitive bidding of the

21 vertical development, or disclosure of the

22 developers rate of return on investment, there's

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1 simply no basis for determining whether

2 demolition and subdivision is economically

3 necessary to provide the proffered amenities, or

4 whether alternative development scenarios could

5 provide the same level of benefits while

6 protecting more of the site's open space and

7 other historic values.

8 Preserving open space at the site is

9 one of the core preservation values. However,

10 much of the open space in the north and middle

11 two-thirds of the site would be lost in the

12 proposed redevelopment plan.

13 One of the requirements of the special

14 merit determination under DC's Historic

15 Preservation law is for the Mayor's agent to

16 determine whether the loss of this public space

17 area is necessary in order to allow for other

18 desirable public amenities.

19 Only by analyzing the specific terms

20 of the overall development agreement can the

21 District of Columbia be ensured of receiving the

22 maximum benefit through this plan.

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1 Based on our review there's sufficient

2 information gaps in demonstrating the true costs

3 involved and allocated to the primary public

4 benefits, incorporated affordable housing, the

5 cost of losing existing open spaces, and the

6 provision of a grocery store as both an amenity

7 for onsite residents, as well as for the

8 surrounding neighborhood, to assess the magnitude

9 of public benefit created.

10 In general, there are a number of

11 analytical elements not included in the project

12 deal description to determine the expected costs

13 and returns on investment resulting from the

14 special merits of the project.

15 In the decade since the original

16 solicitation by the District government for the

17 McMillan site, the character and values of

18 residential commercial properties in the area of

19 the site have increased significantly.

20 As neighborhoods like Bloomingdale,

21 Brookland, LeDroit Park, and Stronghold have

22 attracted new investment, property values have

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1 increased enough to warrant a second look at the

2 residential categories and densities proposed for

3 the McMillan site.

4 According to data from Brightly MLS,

5 quoted in UrbanTurf.com, between May of 2007 and

6 May of 2017 the median price, and this is a city

7 wide total. The median price of a D.C. home is

8 now $600,000 dollars.

9 By unit type most categories increased

10 by double digit amounts, excluding one bedroom

11 condos and co-op units, which increased by only

12 about two percent, as shown on the table on the

13 following page, reproduced from D.C. Urban Turf

14 earlier this year.

15 While the 146 proposed townhouses in

16 the current development program would add to the

17 property tax base, shifting these housing units

18 to a higher density structure, or structures

19 elsewhere on the site would both increase gross

20 revenues to the developer, and could provide more

21 open space adjacent to filtration towers.

22 Based on increases and inflation

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1 adjusted pricing over the past ten years adding

2 more two, particularly two, and three bedroom

3 condominium units, rather than the proposed town

4 homes, would capture a greater total value both

5 for the developers and for the District, and

6 would still fall under the medium density allowed

7 under the current plan.

8 If the historic preservation concern

9 is to provide more open space, consideration of

10 denser multi-family components, instead of the

11 townhouse as proposed, would create development,

12 would increase development value, significantly

13 reduce the footprint of the development, add more

14 key open space near the service ports, and

15 potentially provide opportunities for more

16 affordable housing units, while still increasing

17 revenues to the developers.

18 Following that is a table which was

19 reproduced from the Brightly MLS post on the

20 Urban Turf website. The key element on that is

21 that two bedroom condos or co-ops, this is city

22 wide average, have increased in value 22 percent

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1 in the last ten years, and adjusted for

2 inflation. The gross price increase was 44

3 percent.

4 So, that unit type appears to be

5 highly marketable. I know -- Well, we'll stick

6 to the testimony for now. Prices are higher in

7 the area.

8 The growth rate in the neighborhoods

9 near the McMillan site over the last decade have

10 been even more dramatic than the city wide sales

11 price differential.

12 Unlike during the economic downturn of

13 2007 to 2011, houses in Bloomingdale and

14 Brookland are now frequently selling for more

15 than a million dollars. And population growth

16 throughout the District of Columbia has increased

17 demand city wide, and particularly in this part

18 of D.C.

19 The developer's own housing study by

20 RCLCO indicates that both rental rate prices in

21 the immediate, rental and sales prices in the

22 immediate area of the McMillan site have

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1 increased more than the city wide pricing shown

2 above.

3 And yet, the terms of the McMillan

4 deal have not changed. So, the developer, not

5 the District of Colombia, will be reaping the

6 benefits of this significant new urban

7 development, without an equally significant

8 commensurate increase in benefits to the public.

9 Appropriate redevelopment of the

10 McMillan site is a shared goal of both public and

11 private sectors in this area, and should also be

12 expected to generate sufficient benefit to

13 warrant major changes that will allow that

14 redevelopment.

15 Maintaining an appropriate balance of

16 public costs and public benefits is the

17 responsibility of the District of Columbia.

18 Understanding the terms of that balance will

19 require more information than has been made

20 public today.

21 And District residents deserve to know

22 what's being given in exchange for the changes in

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1 the deal structure for the McMillan site.

2 Additionally, the market shifts since

3 the economic downturn, and introduction of new

4 introduction, new investment, pardon me, into

5 this part of the city should be part of the value

6 calculation and development program as well.

7 Time has changed the market

8 environment near the McMillan site. The

9 District's negotiating position should respond in

10 kind. Respectfully submitted, Tom Moriarty.

11 MR. BYRNE: Thank you, Mr. Moriarty.

12 Do you have a, do you want to ask some clarifying

13 questions, Ms. Ferster?

14 MS. FERSTER: Just one last question.

15 So, is it the gist of your testimony that there

16 are reasonable alternatives that could allow the

17 amenities of the project that have been on the

18 table by the developers with less destruction of

19 open space and historic features?

20 MR. MORIARTY: It's certainly

21 potentially possible. It would require adjusting

22 the site plan. I know that's not an easy or fast

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1 thing to consider right now.

2 But given the difference in valuation,

3 and the demand in this area, I would certainly

4 want to take a second look, understanding the

5 time value of money, that there's an opportunity

6 here that could be left on the table that would

7 both keep more open space, and allow more

8 density.

9 MS. FERSTER: Thank you.

10 MR. BYRNE: Mr. Moriarty, just so I

11 understand, you're not arguing for the project

12 that doesn't involve demolition of the

13 underground cells, nor are you arguing for a plan

14 that doesn't involve subdivision. Am I right

15 about that?

16 MR. MORIARTY: That's correct. I'm

17 not arguing against either of those points.

18 MR. BYRNE: Thank you.

19 MS. FERSTER: A quick redirect. But

20 isn't it possible that, you know, under an

21 alternative development scenario it would involve

22 a different subdivision configuration? Obviously

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1 if you swap the townhouses for more multi-family

2 units.

3 MR. MORIARTY: Yes, if that were

4 pursued.

5 MR. BYRNE: Fair enough. Ms. Brown.

6 MS. BROWN: All right. Good morning,

7 Mr. Moriarty. For the record, Carolyn Brown, on

8 behalf of Vision McMillan Partners.

9 Just following up on that last

10 question. Is it your position that a demolition

11 permit is needed in order to build on the open

12 space?

13 MS. FERSTER: I don't think he

14 testified to that at all.

15 MS. BROWN: I think I heard that, you

16 know, that we're here to talk about the loss of

17 open space. And I just want to understand

18 whether or not he believes a demolition permit is

19 needed for the loss of that open space. He did

20 testify to that.

21 MS. FERSTER: Well, Mr. Moriarty

22 testified on the remand issue that was presented

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1 by the Mayor's Agent. Are there reasonable

2 alternatives that could preserve more of the

3 site's open space without as much demolition?

4 And I believe you amended your

5 statement of issues to strike the word no

6 subdivision, and revised it to include a

7 different subdivision.

8 MS. BROWN: That's a different summary

9 of his testimony. But I don't disagree with

10 that.

11 MR. BYRNE: I'd still like to hear his

12 answer.

13 MS. BROWN: Yes.

14 MR. MORIARTY: I am, I have not

15 replanned the site. I'm thinking, I'm describing

16 this conceptually. Given the value of unit types

17 that were originally proposed, and this is a

18 question about value, not location.

19 That the values of alternative unit

20 types I believe would generate more revenue to

21 the developers, and more revenue to the District.

22 The aspects of how that would play out in terms

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1 of physical planning, I don't want to comment on

2 it. I haven't revised the plan. I haven't

3 analyzed the plan in that way.

4 MS. BROWN: And do you think the plan

5 disposition agreement is before the Mayor's agent

6 to decide whether it has the best economic value

7 for the city?

8 MR. MORIARTY: I am reviewing this

9 deal from the context of is this the best return

10 for the District of Columbia residents.

11 MS. BROWN: And do you believe that

12 that's the issue for the Mayor's agent to decide?

13 MR. MORIARTY: I believe it's a public

14 policy issue that should be decided by the

15 District of Columbia.

16 MS. BROWN: Thank you. Are you aware

17 that there were competitive bids for this

18 property?

19 MR. MORIARTY: At what point?

20 MS. BROWN: At any point.

21 MR. MORIARTY: My understanding was

22 that the project was awarded in 2007 to this

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1 development team.

2 MS. BROWN: As a result of a

3 competitive bid, if you know?

4 MR. MORIARTY: No.

5 MS. BROWN: You don't know, or --

6 MR. MORIARTY: I don't know.

7 MS. BROWN: Okay. Thank you. Are you

8 aware that the Deputy Mayor's, maybe I should,

9 let me see how I can phrase this. Yes. Are you

10 aware whether the Deputy Mayor and the Vision

11 McMillan partners are continuing to work together

12 on the economics of the project?

13 MR. MORIARTY: I'm not aware of the

14 terms of ongoing discussions, no.

15 MS. BROWN: Are you aware of how long

16 the process takes once you get a consensus, or

17 how long it takes to get a project to the point

18 where you present it to the HPRB or the Mayor's

19 agent?

20 MR. MORIARTY: Yes.

21 MS. BROWN: And how many, how long do

22 you think that takes?

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1 MR. MORIARTY: Well, it takes longer

2 in the District of Columbia than most places in

3 the country.

4 MS. BROWN: And during that time

5 period, it could be five years to seven years,

6 ten years?

7 MR. MORIARTY: Oh, yes.

8 MS. BROWN: Okay. And the economy

9 changes during those times. At what point do you

10 just pull the trigger? Or are you always on a

11 continuing loop of having to reevaluate when you

12 get to the point where you get, when you're at

13 the entitlement stage. Would you have to

14 reevaluate it all over again, and start over

15 based on the economics at that date?

16 MR. MORIARTY: The timing of this

17 particular project was unfortunate. It is a very

18 large site. It's in a great location where

19 growth and reinvestment is moving rapidly.

20 And the economic downturn that

21 happened in '07, and continued and started

22 rebuilding here in 2011, 2010-2011, was I believe

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1 unusually strong.

2 Among the economic cycles that I've

3 been through in my career this was a really deep

4 one. D.C. didn't feel it as strongly as some

5 other markets. But it was felt here.

6 And the premise, and I would assume

7 market work that was done in preparation and

8 response to the solicitation was based on numbers

9 that are now well over ten years old.

10 Whether this should be reviewed and

11 reconsidered at this point, I believe would be in

12 the interest of the District tax payer. Because

13 the values have changed so dramatically.

14 However, I have not done that

15 analysis. And I fully understand the depth and

16 delay that that would cause. I understand the

17 time value of money. That's not the issue at

18 hand here for me.

19 We have a public asset that is in

20 play, that needs redevelopment, that has a well-

21 qualified redevelopment team. But I believe that

22 some of the changes in the market could warrant a

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1 higher return to both the District and to the

2 Developers, even understanding the time and

3 complexity of what it would take to find out what

4 works best.

5 MS. BROWN: Did you share these views

6 in 2014 to the Council, when they were reviewing

7 the LDA and disposition of the property?

8 MR. MORIARTY: I did not.

9 MS. BROWN: Thank you. Those are all

10 my questions.

11 MR. BYRNE: Okay. Thank you, Mr.

12 Moriarty.

13 MR. MORIARTY: Thank you.

14 MS. FERSTER: Thank you. Our next

15 witness is going to be Anne Sellin. So we are

16 going to try and connect her on the phone.

17 MR. BYRNE: Okay. Are we ready to

18 take some phone testimony? Do you have to push a

19 button?

20 (Off-microphone comments)

21 (Whereupon, the above-entitled matter

22 went off the record at 9:32 a.m. and resumed at

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1 9:33 a.m.)

2 MS. FERSTER: So our next witness is

3 Anne Sellin. We have offered her as an expert in

4 historic preservation. She has already been

5 qualified as an expert so we have not provided

6 her CV again.

7 MR. BYRNE: Right, because she was

8 qualified in hearings I guess in the past. Okay,

9 that's fine.

10 MS. FERSTER: That's correct. Anne,

11 I have distributed your written testimony and you

12 can proceed.

13 MS. SELLIN: All right. I am

14 testifying on historic preservation issues

15 directed by the Court of Appeals and a remand

16 hearing on McMillan Park Reservoir.

17 This is in response to the request by

18 the Mayor's Agent that the Applicants analyze

19 whether the demolition and subdivision are

20 consistent with the purposes of the D.C. Historic

21 Landmark and Historic Protection Act.

22 Destruction of key features on a

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** JPA.1130 **
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1 historic site, Emily Eig, Historic Preservation

2 witness for the developers in her report of

3 September 15, 2014, writes, the spatial

4 organization of McMillan and the portals for the

5 ground below mold, and, key, the highest level of

6 significance recognized in the report.

7 McMillan's spatial organization is one

8 of strict bilateral symmetry. It's wide open

9 centerfield explained on either side by a court

10 that accommodates the sand bend towers and

11 regulator house.

12 The two outer fields on the periphery

13 are narrower. This symmetry arrives into their

14 accommodation of the underground vaults that

15 house the sand cleaning purification and water.

16 The two parallel roads and mysterious

17 towers accommodate the wide open spaces which

18 would be destroyed in the developers planning in

19 a development.

20 The open spaces would be built over,

21 the site symmetry destroyed and the dominant

22 towers dwarfed by overpowering buildings rising

Neal R. Gross and Co., Inc.

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** JPA.1131 **
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1 69 to 110 feet.

2 Interjection of four streets would

3 further disrupt the site. In fact, the only

4 field left in the northern parcel would be a

5 small, quote, healing garden, unquote, and the

6 open space above South 14 fronting Michigan

7 Avenue situated between high buildings on the

8 north court of parcel one.

9 These open space areas may be

10 desirable from the standpoint of patients and

11 visitors, but they are not a preservation

12 feature.

13 This open space does not protect the

14 historic view shed to and from the site or the

15 site's spatial organization. It is, in fact,

16 that these open spaces are wedged between two

17 high-rise buildings and abut Michigan Avenue, not

18 the historic service courts.

19 Therefore, they do not in any way

20 mitigate the damage that the project does to the

21 site's spatial organization. A better design

22 from a historic preservation standpoint would

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** JPA.1132 **
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1 have been to place that healing garden between

2 the service court and the medical office

3 buildings.

4 Likewise, I believe that rather than

5 concentrating six acres of open space on the

6 southern section of the site, this open space

7 should have been distributed so as to preserve

8 more open space immediately north and south of

9 the southern service court.

10 In sum, notwithstanding the

11 preservation of some of the site's historic

12 structures and the isolated open spaces

13 concentrated on the north and south portions of

14 the site, the destruction of the site's spatial

15 organization and demolition of more than half of

16 a historic portals and virtually all of the below

17 ground historic vaults cannot be considered a net

18 preservation that renders the project consistent

19 with the purpose of the Preservation Act.

20 Under the Historic Landmark Historic

21 Protection Act 6-1104, Demolition, Number 7, that

22 the city which owns the property has consistently

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** JPA.1133 **
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1 ignored direction -- directives in its own

2 Comprehensive Plan that specifically addresses

3 the Friends of McMillan.

4 The City has also ignored adaptive

5 reuses of the property for the benefit of the

6 neighborhood and the City. Under the Historic

7 Landmark Historic Protection Act 6-1104, New

8 Construction, the Mayor may deny a construction

9 permit entirely when he finds that any additional

10 construction will be incompatible with the

11 character of the historic district or historic

12 landmark.

13 Notwithstanding the findings for its

14 compatibility the Mayor may find the issuance of

15 the permit is necessary to allow the construction

16 of a project of special merit.

17 The following issues concerning

18 demolition and construction show that the City's

19 own policies regarding McMillan Park Reservoir

20 and the McMillan Plan have been disregarded in

21 its decision to permit the demolition of historic

22 features of the site, most of which will be

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** JPA.1134 **
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1 completely transformed by a massive planning of

2 development.

3 Specific merit cannot be found if the

4 directives concerning McMillan and the

5 Comprehensive Plan would be violated. The Vault,

6 called the MC-2.6.2 in the Comprehensive Plan,

7 which ignores -- which governs McMillan cites,

8 quote, would restore key aboveground elements of

9 the site in a manner that is compatible with the

10 original design and explore the adaptive use of

11 some of the underground cells as part of the

12 historic record of the site, end quote.

13 For over 20 years residents have

14 pleaded with City to convert the Vaults that are

15 in better condition to active use, such as a

16 museum and/or a police substation.

17 The engineering firm, C.C. Johnson &

18 Malhotra, in its report in 2001 found that Vaults

19 16, 17, 18, and 21 in the north court had been

20 stable for the previous 30 years.

21 The Secretary of the Interior

22 standards for altering sites, Number 9, states

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** JPA.1135 **
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1 that construction will not destroy material,

2 features, and spatial relationships that

3 characterize the property.

4 Replacement construction of the wooden

5 doors to the vault, some of the gate apertures

6 which originally opened into the ramps leading

7 down to the Vaults would be included on the

8 southern court, saved as copies, but their

9 function would be obliterated if there is no

10 vault to go down to.

11 There is no plan to save all the

12 gateways. With no vaults to open into these

13 gateways applied to a wall and leading nowhere

14 are functionless accents.

15 Destruction of the majority of the

16 historic portal of one key aboveground features

17 simply is not consistent with the purpose of the

18 Preservation Act.

19 The historic McMillan Plan in central

20 Washington and the enormous number of acres now

21 shut off, the public access to that park plan and

22 open space diminishing over 300 acres to a

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** JPA.1136 **
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1 proposed 6.2 acres in its proposed proposal.

2 The Plan of 1902 is identified in the

3 Senate report as the improvement of the park

4 system of the District of Columbia. Frederick

5 Law Olmsted, Jr., who firm planned Rock Creek

6 Park, was a member of the four-member McMillan

7 commission.

8 He served as the landscape architect

9 for McMillan Park Reservoir, much of his salary

10 having been paid by the McMillan family after

11 Senator McMillan's sudden death in 1902.

12 The McMillan Plan, like the L'Enfant

13 Plan, is a key plan for Washington. This

14 proposal would leave a paltry mini park for 6.2

15 acres to be developed by the City while conveying

16 the lion's share of 19.8 acres for dense, private

17 development.

18 The McMillan Plan can open large open

19 stretches of land in a central part of the City

20 in order to allow air to flow into the

21 topographic bowl during hot summers and to

22 provide public recreational park land.

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** JPA.1137 **
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1 These open stretches, most of which

2 are contiguous, form a band along the lower part

3 of Glover Park. They consist of the campus of

4 Howard University, McMillan Park Reservoir, Holy

5 Rood Cemetery, Trinity and Catholic University,

6 and the National Shrine of the Immaculate

7 Conception.

8 The vast acres comprise the grounds of

9 the Old Soldiers' Home to the north. The

10 neighborhoods in this part of the City once

11 enjoyed a generous amount of open space and park

12 land.

13 McMillan, a combination park and a

14 water cleansing facility of 83 acres of open

15 public space, and the Armed Services Retirement

16 Home, known as the Old Soldiers' Home, of 272

17 acres open to the public provided well over 300

18 acres for enjoyment by citizens.

19 But these properties are now fenced

20 off except for the University campus which aren't

21 public. The results in this area of Washington

22 is now experiencing a startling deficit of parks

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** JPA.1138 **
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1 and open space.

2 A joint study by the National Park

3 Service, the government of the District of

4 Columbia, and the National Capital Planning

5 Commission, it's called Capital Space -- Park

6 System for the Nation's Capital 2010, reveals

7 that the area around McMillan, the area of mid-

8 city and near Northwest, now stand next to last

9 in park land and open spaces in Washington.

10 The project before you turning almost

11 20 acres into buildings and streets would forever

12 destroy the possible renewal of 20 acres for

13 public use and wreck a historic district.

14 The plan before us now will leave a

15 staggering small number of acres and public lands

16 for park use as the over 300 acres that served

17 the public before World War II and the mini park

18 proposed would be built at the public's expense.

19 Alternative possibilities. A park

20 capitalizing on the design's original function,

21 exploiting the original purpose of the park. A

22 number of parks around the world have been

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** JPA.1139 **
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1 developed and enhancements exploit its original

2 purpose.

3 For instance, in Paris the surface of

4 an old aqueduct transformed into a park full of

5 flowers. The Highline in New York was saved from

6 demolition and it has been transformed into an

7 enormously popular park. The Gas Works Park in

8 Seattle was an open space preserved, World War II

9 flack tower parks in Germany, and the Paddington

10 Reservoir Garden in Sydney, Australia.

11 Though Catholic University held an

12 extremely interesting presentation, a scholarly

13 presentation featuring reuse by the public for

14 McMillan Park, no one from the City attended.

15 Despite numerous pleas at public meetings on

16 McMillan from citizens for regeneration of the

17 whole site, the City has shown no imagination for

18 preserving it for active public use.

19 More alternative possibilities are

20 identified in my written testimony which I have

21 submitted for the record. Thank you for the

22 opportunity to testify today.

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(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1140 **
 40

1 MR. BYRNE: Thank you. Do you have

2 any questions you want to ask, Ms. Ferster?

3 MS. FERSTER: I do not.

4 MR. BYRNE: Okay. So I guess it's

5 then up to Ms. Brown for cross examination. How

6 do we do this here, you know, do you stand by the

7 phone?

8 (Simultaneous speaking)

9 MS. BROWN: I can short circuit all of

10 it, I don't have any questions.

11 MR. BYRNE: Oh, well that does make it

12 easier. Ms. Sellin, can you please explain --

13 MS. SELLIN: Yes?

14 MR. BYRNE: I'm sorry, the court

15 reporter is making an adjustment here, be right

16 with you.

17 Okay, all right. Ms. Sellin, could

18 you please explain for the record why you are

19 testifying via phone and not in person?

20 MS. SELLIN: Well, because I wasn't

21 able to be here for the hearing. I am here

22 overseeing repairs to a house in New Hampshire.

Neal R. Gross and Co., Inc.

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** JPA.1141 **
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1 MR. BYRNE: Okay. Okay, good enough.

2 Okay, I guess that's all we have then for Ms.

3 Sellin. Thank you very much.

4 MS. SELLIN: Thank you.

5 MS. FERSTER: Thank you. I'm going to

6 hang up the phone now, thank you.

7 MS. SELLIN: Okay.

8 MS. FERSTER: Yes, our next witness is

9 Kirby Vining who is the Treasurer of Friends of

10 McMillan Park.

11 MR. BYRNE: Mr. Vining, welcome.

12 MR. VINING: Thank you.

13 MR. BYRNE: So let me just note here

14 that I am receiving written testimony for Mr.

15 Vining with a number of attachments to it and I

16 kind of expect that we'll hear more about that in

17 his testimony, so please proceed, sir.

18 MR. VINING: Good morning. I am Kirby

19 Vining, Treasurer and a Board Member of the

20 Friends of McMillan Park, a non-profit 501(c)(3)

21 membership organization.

22 I will be addressing the four points

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** JPA.1142 **
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1 identified in the Notice calling this hearing on

2 the remand of the McMillan case in that capacity.

3 Prefatory to these specific remarks I

4 would like to respond to your, Mr. Byrne's,

5 characterization of the Friends of McMillan

6 Park's positions in the development of the

7 McMillan site and one of your questions to the

8 Friends witnesses on Monday, which, as the

9 Friends lawyer pointed out to you is not correct

10 and are directly related to my remarks below.

11 Attachment 1 is an op-ed the Friends

12 wrote the Washington Post earlier this year after

13 the court decision was issued and on the back of

14 it is a statement of the Friends positions and

15 concerns about the McMillan development.

16 You will note our radical position of

17 advocating that the City abide by existing rules,

18 regulations, and community consensus. DMPED has

19 not only has consistently mischaracterized the

20 Friends positions but it reimbursed three public

21 relations firms, Fontaine & Company, Chesapeake

22 Public Strategies, and Create Communitas, to

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** JPA.1143 **
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1 discredit and neutralize any opposition to the

2 project by, among other things, exactly this

3 mischaracterization of the Friends ultimate goal.

4 See Attachment 1A for the letter hiring one of

5 these firms and see Attachment 4 for the amounts

6 reimbursed.

7 The Friends and the neighborhood are

8 absolutely not against development per se, but

9 hope for something more creative that is more

10 respectful of the historic character of the site

11 and consistent with the Comprehensive Plan and

12 community surveys than the plan before you.

13 Any true alternative plans have almost

14 entirely been precluded by the sole sourced and

15 exclusive nature of the development before you

16 that offers only variance of the Applicant's

17 plan.

18 We are well aware of community's

19 wishes. The Friends intentions are much more in

20 line with those wishes than the fabrications put

21 forward by the Applicant and in no small part are

22 based on the results of a broad door-to-door

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** JPA.1144 **
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1 community survey on the McMillan development done

2 a few years ago under ANC auspices.

3 The Friends considers existing City

4 regulations and specific recommendations in the

5 Comprehensive Plan for the McMillan site, MC 2.6,

6 to be excellent guidance for the development of

7 McMillan and we wonder why these recommendations

8 and regulations have not been followed.

9 The Friends positions also accord

10 nicely with the Office of Planning's 2002 Summary

11 of Recommendations for McMillan Site

12 Revitalization which contains thoughtful and

13 practical observations and recommendations for

14 the site based on extensive community dialogue.

15 Both these are remarkably consistent

16 with the results of a survey done under ANC

17 auspices in 2012. The Friends also have a widely

18 circulated petition requesting that the District

19 consider more creative alternatives to the

20 current plan. See a sample blank page of that

21 petition is Attachment 2.

22 The Petition has over 8000 signatures

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** JPA.1145 **
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1 so far, testimony to the broad public

2 appreciation of this issue. These points have

3 apparently all fallen on deaf ears except to the

4 D.C. Court of Appeals.

5 The creative alternatives sought do

6 not simply refer to a rejigging of the DMPED plan

7 but the open request for proposals and

8 competitive bidding the City is obligated to do

9 under the 1978 Procurement Act and which has

10 never been done. See Attachment 2A inserted

11 between Attachments 3 and 4, which is the D.C.

12 Auditor's letter attesting to this fact.

13 Issue 1, the historic preservation

14 benefits proposed are the retention of much of

15 the perimeter walk that the Applicant has

16 christened the Olmsted Walk, the sand bins and

17 regulator houses.

18 Also included in the proffered

19 benefits is retention of nine of the existing 20

20 portals, the iconic entrances to the underground

21 vaults.

22 But one of these so-called retained

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** JPA.1146 **
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1 portals, all but one of these so-called retained

2 portals are in the south service court. The

3 remaining 11, the majority, will be demolished.

4 The one in the north service court is

5 retained simply because it is controlled by D.C.

6 Water for part of its flood prevention project

7 using Cell 14.

8 Thus, retention of that cell and

9 portal should not in any sense be considered a

10 benefit for the purpose of calculating special

11 merit. D.C. Water has not made that argument.

12 But please note the drawing in

13 Attachment 3 which shows one of the retained

14 portals in the south service court. What is

15 shown here is clearly a recreated portal, not a

16 retained portal as is readily seen in the lack of

17 original detail in that portal compared to the

18 actual existing portals where the dado'ing up at

19 the top is one particular point.

20 I cannot tell from these drawings how

21 many of these so-called retaining portals are

22 recreations, but I do not think that a recreated

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** JPA.1147 **
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1 portal should be given the same special merit

2 consideration that actually retained original

3 structures are given.

4 The historic features of this site

5 that would be demolished, the harms, include all

6 the belowground vaults currently under the

7 Applicant's control, the aboveground landscaping

8 from Frederick Law Olmsted, Jr., and the key open

9 space and vistas in the center of and across the

10 site in all directions.

11 The retained historic features strike

12 me as trivial when compared with the lost

13 features and rudimentary examination of what

14 features are retained are those that are

15 apparently simply not in the way of the seven

16 parcels of proposed development.

17 However, you may recall a true

18 alternative plan for development of the site

19 presented at the original demolition hearing by a

20 team of architects associated with Catholic

21 University.

22 While that plan is not before you for

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** JPA.1148 **
 48

1 consideration and the District has not taken it

2 or any alternative plan seriously it should serve

3 to inform your decisions about the fact that no

4 serious effort was made in the plan before you to

5 incorporate elements of the underground vaults,

6 which are incorporated in the Catholic Team's

7 plan.

8 Exclusive rights agreements signed by

9 the Applicants allows the Applicants to claim

10 disingenuously and without substantiation that

11 nothing else is feasible for the site.

12 Without comparative plans to argue for

13 or against degrees of integration or demolition

14 of the historic features that are possible, which

15 could help inform your own decision on this

16 matter, the argument that nothing else is

17 feasible must be rejected as unsupportable.

18 Issue 2, a community park and

19 community center, some affordable housing, a

20 grocery store, are beneficial to the community,

21 but I cannot agree that they deserve special

22 merit consideration as these things are common in

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** JPA.1149 **
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1 many developments in the City.

2 On the other hand, the community has

3 long sought development for this site that

4 includes no high rise construction and that does

5 not make traffic problems worse. This is

6 documented in the 2002 Office of Planning's

7 summary conclusions.

8 The Applicants have talked of the

9 importance of many other benefits proffered in

10 their community benefits agreement for the

11 project but it is important to note that this

12 agreement was forced upon the ANC as an

13 ultimatum, that it is this community benefits

14 agreement or none at all with no community review

15 or input and it is quite different from the

16 proposed community benefits agreement put forward

17 and developed by the McMillan Advisory Group,

18 Attachment 3A, and that's the MAG CBA, which is

19 based on actually direct input from the

20 surrounding communities.

21 The MAG CBA has been entirely ignored

22 and many of the benefits proffered in the

Neal R. Gross and Co., Inc.

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** JPA.1150 **
 50

1 Applicant's CBA are not benefits the community

2 has requested or has any interest in. Those in

3 the proposed MAG CBA are.

4 The Applicant's CBA does not represent

5 the desires or requirements of the communities

6 surrounding the site. The Applicant's CBA in

7 that sense is much like the Applicant's arguments

8 concerning the medical office building, it's this

9 or nothing.

10 But documents before you claim that

11 the Applicant's CBA was the result of

12 collaboration with the surrounding communities,

13 it was not.

14 You will note that the MAG CBA is

15 addressed, because MAG members, including myself,

16 hoped that this would be the starting point for

17 negotiations, that never happened.

18 Note among the several whereas clauses

19 in the MAG CBA description of the role that the

20 MAG is chartered by the District to perform

21 representing the residents' concerns as they

22 relate to this development.

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** JPA.1151 **
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1 Paragraphs I through M in the MAG CBA

2 document in detail the specifics of the MAG's

3 role, intended role, in negotiating aspects of

4 this development, and Paragraph 5 insists that

5 the MAG have an active role in the CBA for this

6 project, that also did not happen.

7 Important specific examples of how the

8 MAG CBA differs from the Applicant's CBA can be

9 seen under Traffic, Safety, and Transit, Page 15

10 of the MAG CBA.

11 Note the careful thought the community

12 put into this crucial aspect of the development

13 plans, and in particular Paragraph 21 arguing

14 that shuttle service serves the existing

15 community should be included.

16 The Applicant's CBA shuttle plan

17 benefits residents and employees of the project

18 buildings, not the residents in the existing

19 community and thus must be considered as

20 mitigation efforts against the very real traffic

21 problems the project would cause, but in no sense

22 do these plans benefit the existing outside

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** JPA.1152 **
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1 community in a positive sense.

2 None of the proposals in the

3 Applicant's Transportation Performance Plan or

4 follow-up details on transit commitments, which

5 is Attachment 3B, also submitted as Zoning

6 Exhibits 849(b) and 862, indicate that the

7 proffered shuttle services will not accommodate

8 persons other than the persons coming to and from

9 the development and are thus in no sense a

10 community benefit and will not provide any net

11 traffic benefit.

12 Also note that there is no mention in

13 the MAG CBA for the healing gardens, which is

14 wedged between high rise buildings and a bus

15 turnaround area on busy Michigan Avenue.

16 The Applicant's claim that this

17 feature was requested by the community, but it

18 was not. This applies to many other proffers in

19 the Applicant's CBA.

20 Please consider in your evaluation of

21 this case that a CBA is supposed to be the result

22 of dialogue and negotiation with the community.

Neal R. Gross and Co., Inc.

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** JPA.1153 **
 53

1 The Applicant's CBA is not.

2 The draft MAG CBA is precisely that.

3 The Applicants worked out their CBA with the ANC,

4 not the community or the appointed McMillan

5 Advisory Group, and put considerable pressure on

6 the ANC to adopt the Applicant's language.

7 See Attachment 3D for a November of

8 2013 exchange between the Applicants and the ANC

9 according to which the ANC adopted and simply put

10 on letterhead the Applicant's text of the ANC

11 resolution supporting development, which was

12 obtained by FOIA, and my own letter to the ANC

13 complaining about the complete lack of community

14 engagement in this, and a December 2013 exchange

15 in which the ANC and the Applicant colluded to

16 prevent the MAG from having any role in the CBA

17 process, this was also obtained by a FOIA

18 request.

19 It is, therefore, simply false to

20 characterize this CBA as in any way representing

21 the surrounding neighborhood, that the

22 surrounding neighborhood supports this project.

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1154 **
 54

1 As the Friends' Counsel pointed out to

2 the D.C. Court of Appeals during oral argument in

3 the appeal of the last decision, ANCs who are

4 legally prohibited from going to court to

5 challenge the lawfulness of Agency approvals

6 often agree to take it or leave it benefit

7 packages in an effort to secure something for the

8 community however inadequate.

9 More importantly, past Mayor's Agent

10 decisions have made clear that grants or payments

11 for scholarships, Main Street improvements, et

12 cetera, are offsite benefits that do not

13 constitute special merit benefits.

14 The preservation law does not permit

15 developers to pay non-profits as the price tag

16 for being allowed to destroy our City's historic

17 properties. To suggest otherwise improperly

18 confuses the historic preservation law with the

19 PUD process.

20 The word "community" really doesn't

21 belong in any of these Applicant documents

22 because the community was deliberately excluded

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** JPA.1155 **
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1 from this process. ANC benefits agreement might

2 be more apt.

3 In your consideration of benefits

4 versus harms and losses for this project please

5 consider the precarious finances of this project.

6 This is relevant to your decision because the

7 Historic Preservation Act requires that you find

8 that the owner has demonstrated the ability to

9 complete this project.

10 During recent zoning hearings the

11 Applicant stated in response to questions about

12 reducing the height or density of the project

13 based on the court's questions that this was

14 really not about a valid question, saying in so

15 many words that it's either this project as is or

16 nothing and that the kinds of changes suggested

17 at zoning would kill the project and yet

18 Applicants do not have an anchor tenant for their

19 planned 860,000 square feet of medical space

20 which apparently will include facilities

21 requiring licensure by the D.C. Department of

22 Health that they have no guarantee will be

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** JPA.1156 **
 56

1 forthcoming.

2 See the Friends post-hearing

3 submission to the Zoning Commission, which is

4 Exhibit 953 in the Zoning Record, Attachment 3C

5 here.

6 This sounds like there is considerable

7 fragility here in spite of the fact that DMPED

8 has paid all of the pre-development costs for the

9 project amounting to some $14 million so far.

10 See Attachment 4 for a summary of

11 those reimbursed costs through October 2016, also

12 obtained by a FOIA request, and the proposed sale

13 of the land for a mere quarter of the current

14 assessed value of the land.

15 Given all of the financial benefits

16 and incentives provided to development teams,

17 still, apparently, the project is too financially

18 precarious to admit a significant revision.

19 But where are the true alternative

20 plans that could inform this question. Merely

21 stating that nothing else is feasible is self-

22 serving and must not be taken seriously without

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** JPA.1157 **
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1 comparisons.

2 The Preservation Act requires that a

3 permit for new construction be issued and that

4 the Applicant has the financial ability to

5 complete the project before a demolition permit

6 can be issued or a subdivision recorded.

7 However, following the issuance of

8 your Order, your prior Order approving the

9 demolition, but before the issuance of any new

10 construction permit a demolition permit was

11 issued on December 2, 2016.

12 There's a copy of it, it's Attachment

13 5. This Attachment is followed by a copy of

14 correspondence between the Friends legal counsel

15 and two senior office planning officers bringing

16 to their attention the fact that the issuance of

17 this demolition permit is in violation of the

18 Preservation Act. That correspondence is

19 Attachment 5A.

20 It is essential that any order issued

21 by the Mayor's Agent approving demolition or

22 subdivision include appropriate conditions to

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1 ensure that these statutory requirements are

2 satisfied before any demolition or subdivision

3 takes place on the site.

4 Further, we have serious concerns

5 about the enforceability of the Mayor's Agent's

6 Order to the extent that it depends on getting

7 one aspect of the project as part of its special

8 merit.

9 For example, if obtaining LEED ND gold

10 status is part of the project's special merit how

11 will the Mayor's Agent ensure that this status is

12 secured. The prior zoning order simply requires

13 best efforts to secure the promised LEED levels.

14 If a grocery store or other retail or

15 affordable housing, or 860,000 square feet of a

16 healthcare facility is part of the basis for this

17 special merit how will these promises be

18 enforced.

19 I note that the Zoning Commission's

20 prior Order specifically does not require the

21 Applicant to get LEED certification. Without

22 seeing the specific LEED certification checklist

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1 for this project, Mr. Bell's representations last

2 Monday about the master plan status as meeting

3 LEED ND gold standards are not verifiable or in

4 any way enforceable.

5 This is not a unique case of the

6 District failing to abide by its obligations

7 following an Order from your hand. Attachment 5B

8 is correspondence concerning the implementation

9 of a loan for development at 2228 Martin Luther

10 King, Jr. Avenue, Southeast, the Big K project.

11 Your Order deemed this a project of

12 special merit because it would provide badly

13 needed Class A retail space, yet the letter

14 specifies that the commercial space will be used

15 for the indefinite future as a child development

16 facility contrary to your Order.

17 The issuance of the McMillan

18 demolition permit on December 2, 2016, creates

19 considerable doubt as to whether responsible

20 District agencies tasked with enforcement of

21 orders issued under your hand either willingly or

22 negligently failed to do so in this case calling

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1 into grave question the issue of whether this

2 proposed project would be implemented in

3 accordance with your own or other Orders

4 concerning it.

5 This unfortunately is not a problem

6 unique to this project or historic preservation

7 concerns as seen in Attachment 5C, which is two

8 recent press reports of the failure of the

9 District to monitor compliance with other

10 projects.

11 You'll see that the McMillan

12 demolition permit was issued just seven days

13 before the Mayor's groundbreaking event for the

14 project, subsequently referred to as a sand-

15 breaking event, see Attachment 6, further

16 evidence that the District either willingly or

17 negligently failed to comply with your Order.

18 It is imperative that the Mayor's

19 Agent take steps to ensure that no demolition

20 permit will be issued or subdivision be recorded

21 until the building permit is issued and the

22 Applicant demonstrates the ability to complete

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1 the project.

2 The traffic mitigation proffered for

3 this project cannot conceivably be considered a

4 special merit benefit because the demolition and

5 subdivision necessary for the construction of the

6 large buildings would cause the increased traffic

7 problems that would be created at the expense of

8 the existing historic features.

9 Thirty-one thousand additional car

10 trips per day are going through the intersection

11 of North Capitol Street and Michigan Avenue is

12 what the Applicant indicated is the likely impact

13 of transportation to and from the project

14 buildings.

15 And the Department of Transportation

16 already regards that intersection has failed,

17 having more daily traffic than it can support

18 now.

19 The Applicant's proposed mitigation

20 measures are not realistic and mention is made of

21 this in the MAG CVA referred to above. Shuttle

22 buses have been proposed but no one seems to be

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1 willing to pay for them and realistically they

2 will be ensnared in the same increased traffic

3 which currently grinds to a halt north and

4 southbound three times each weekday.

5 I fail to see that there is any

6 benefit in the traffic problems or their proposed

7 mitigation directly associated with the extensive

8 proposed demolition and subdivision, never mind

9 benefit worthy of consideration for special merit

10 purposes. This is just mitigation of harms, not

11 benefits.

12 This is my community. I live just

13 four houses from North Capitol Street in the

14 Stronghold neighborhood. I will be personally

15 negatively impacted by the destruction of this

16 magnificent historic site, which I frequently

17 tour and experience, as well as the adverse

18 effects of the high-density development proposed,

19 most particularly the unacceptable levels of

20 traffic on area roadways that are already

21 congested.

22 Stronghold and other nearby

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1 communities are struggling with greed in the

2 current real estate market as never before.

3 Families that have been here since the 1950s are

4 confronted with rising tax obligations due to

5 numerous totally renovated houses raising the

6 market value of their own homes to nearly $1

7 million each.

8 See Attachment 6A for a very recent

9 example of just how expensive condos in the next

10 door Bloomingdale neighborhood are and consider

11 the selling price of these two condos to see what

12 the house, formerly a single-family home, is now

13 worth, an example of just how astronomical the

14 sales boom really is.

15 While this may sound nice to someone

16 interested in selling for a profit, this is

17 having a disastrous impact on people who just

18 hope to die in the house that has been their home

19 for decades, which, in fact, I think is the basis

20 for the Court's concern about displacement and

21 gentrification.

22 I hope to do the same with this house

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1 that saw my marriage and the birth of my son, but

2 my tax obligation is moving up at a fast rate,

3 and the reason for that I was told by the Office

4 of Tax and Revenue Officer who reviewed the

5 challenge I made to my real estate, the tax

6 assessment increased 8 percent this year alone,

7 is the value of the Chancellor's Row townhouses

8 just about a mile away from my home, I live in

9 the same cluster for tax purposes, built by one

10 of the Applicant's development partners.

11 More such townhouses would only

12 accelerate the fight I am waging to keep my taxes

13 at a reasonable level for the years that I have

14 left.

15 I am one of the closest neighbors to

16 the site of the Friends of McMillan Park family,

17 though a couple of our members live in homes

18 directly facing the park.

19 These are examples of things that

20 brought our group together in the first place.

21 Couldn't something reasonable with less damaging

22 impacts on this astonishingly beautiful part of

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1 our neighborhood bring it back to life in a way

2 that we could look forward to without such huge

3 and negative consequences.

4 Many factors contribute to some of the

5 cases I see in my neighborhood of relatives or

6 descendants of the original homeowner are

7 essentially camping out in what once were

8 thriving, stable family homes.

9 While an increased property assessment

10 is just one of the pressures on my neighbors,

11 these are indeed factors that I think should be

12 considered in how our City changes.

13 This project is clearly driven

14 primarily by financial concerns above all.

15 Attachment 7, which document is also in the

16 Zoning Commission record, is Exhibit 87 for this

17 case, is an email from the chair of one of the

18 development team principals to the DMPED obtained

19 by a FOIA request.

20 The email dated March 2009 is the

21 first indication that a medical center was to be

22 proposed for the project and the rationale is

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1 financial.

2 Quoting from the letter, "Bottom line

3 we need the City to approve of the addition" of

4 this company and the medical center "to move

5 forward in this tough economic environment."

6 The medical office building was not

7 presented as necessary to achieve any larger City

8 goals, only that the financial goals of the

9 development partners.

10 Other justification of and a rationale

11 for this medical building we have heard in

12 testimony is clearly an afterthought, but ever

13 since that introduction of the proposed medical

14 center mysterious things have happened to the

15 project plans.

16 Page 63 of the Land Disposition and

17 Development Agreement for this project passed by

18 the Council as Bill 20-707, which is Page 63 of

19 that Bill is Attachment 8 here, identifies the

20 so-called medical building, which does not have a

21 tenant, as a speculative healthcare facility with

22 first floor retail.

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1 How can a speculative building be

2 eligible for special merit consideration? In

3 fact, it would seem that the medical facilities

4 adjacent to the proposed development have already

5 long since made their plans for expansion both on

6 their existing campus and at the former Walter

7 Reed development, but not on McMillan. See

8 Attachment 8A for brief details and master plans

9 for Children's, Veteran's, and MedStar Hospitals.

10 This does not support the Applicant's

11 arguments that more medical facility space is

12 needed in an area, nor that there is a likely

13 tenant out there somewhere.

14 Several aspects of the project are

15 cited by the Applicants as exceptional when in

16 fact they are quite ordinary. The EYA townhouses

17 have floor plans identical to those in several

18 other EYA developments.

19 The jobs and tax revenue that the

20 project buildings would provide are quite similar

21 to those for the Wharf at 27 acres, Capitol

22 Crossing with 2.2 million square feet of

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1 development, and other DMPED projects with

2 similar numbers.

3 Nothing exceptional here except that

4 this project would desecrate a D.C. historic

5 site.

6 Issue 3, the proposed development is

7 not one project, but seven, thus the need for

8 subdivision. The City has not considered a plan

9 that would keep the site intact as one parcel and

10 it signed an exclusive rights agreement early on

11 in the development process that locked this group

12 of separate developments into place precluding

13 the consideration of any true alternatives.

14 So the necessity of subdivision has

15 not been truly considered or established nor has

16 the developer considered a different plan of

17 subdivision that would preserve more of the

18 site's key open space, an area above the vaults,

19 or a development proposal that was so internally

20 coherent as to make subdivision unnecessary.

21 We have seen some changes proposed

22 that amount to moving some buildings around on

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1 their original pads, but not the idea of

2 reorganization to consider a less damaging impact

3 on the underground vaults of the vistas,

4 similarly for the demolition.

5 Without alternative plans for a

6 development of the site, which would be an

7 opportunity to look at incorporation of more of

8 the above and belowground elements of this site

9 in a development proposal. This also is a moot

10 point.

11 Likewise, for an economically viable

12 mixed use development alternatives have not been

13 considered for a comparison for any other

14 evaluative purposes.

15 Issue 4, this is a question, Issue 4,

16 that the Friends of McMillan Park and many in our

17 community want an answer to, a request for

18 proposals and design composition would sort out

19 the answer to this question.

20 It was before you as a take it or

21 leave it, sole-sourced, heavily subsidized

22 project proposal and ultimatum yet without a

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1 tenant for the largest buildings.

2 Why it came to be this way is a

3 political question beyond the scope of this

4 hearing, but it is fact no true alternatives have

5 been considered.

6 Minimal demolition and no subdivision

7 could be among the terms of a request for

8 proposals, but there has been no request for

9 proposal seeking the answer to just this

10 question.

11 I think the onus is on the applicant

12 to present alternative plans, and it is not,

13 there is presented only a slight variance of its

14 original plan. Comparing various models of

15 Chevrolet is not the same as comparing a

16 Chevrolet with an Aston Martin.

17 In my concluding remarks perhaps most

18 appropriate for Issue 1 concerning the

19 preservation of harm versus benefits I would like

20 us to recall what this landmark historic site is

21 really about.

22 The Secretary of War, later President

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1 Taft, dedicated McMillan park to the memory of a

2 Senator from Michigan, a wealthy and powerful

3 railroad magnate, who took upon himself the task

4 of ridding our city of the scourge of annual

5 typhoid epidemics and laid down a plan for the

6 development of Washington prominently including

7 our lovely park system to beautify it and make

8 our city take its honorable place among the

9 world's most beautiful capital cities.

10 That plan, now referred to as the

11 McMillan Plan, is his legacy and McMillan Park is

12 the only place in our country dedicated in name

13 to this man's work.

14 In 1902 Senator McMillan presented to

15 Congress the work of his committee, the Senate

16 Parks Committee, consisting of Daniel Burnham,

17 Charles McKim, and Frederick Law Olmsted, Jr.

18 The opening of that report they gave

19 to Senator McMillan presented to Congress on that

20 day states "The desirability of a comprehensive

21 plan for the development of the District of

22 Columbia has long been felt by Congress during

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1 the bad few years particularly.

2 Questions have arisen as to the

3 location of public buildings of reserving spaces

4 for parks in the portions of the District beyond

5 the limits of the City of Washington, of

6 connecting and developing existing parks by

7 attractive drives, and are providing for the

8 recreation and health of a constantly growing

9 population."

10 And in the absence of a well

11 considered plan the solutions of these grave

12 problems has either been postponed or else has

13 also resulted in compromises that have mired the

14 beauty and dignity of the national capital.

15 I think we should pause in our work

16 here today and reflect on the selfless higher

17 order of public service of these people, the

18 Comprehensive Plan they bequeathed to our City

19 and what is in our power to further this plan.

20 Thank you.

21 MR. BYRNE: Thank you, Mr. Vining.

22 (Off microphone comments)

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1 MR. BYRNE: No questions, okay. Ms.

2 Brown, cross examination?

3 MS. BROWN: I did have a question

4 about the MAG, but Mr. Vining did clarify that

5 the agreement was with the Advisory Neighborhood

6 Commission, so I think that that answered my

7 question about which community address it.

8 I do have objections to several of the

9 attachments in his testimony as irrelevant and

10 beyond the scope of this hearing.

11 MR. BYRNE: Okay, all right. This is

12 probably a good time to present those.

13 MS. BROWN: You know, several I think

14 are irrelevant, but they are within the scope of

15 the hearing, such as Exhibit 1, 1A I believe is

16 irrelevant, but it deals with McMillan loosely,

17 but they wanted it to be struck from the record.

18 MS. FERSTER: Do you want to deal with

19 it one at a time?

20 (Off-microphone comments.)

21 MS. FERSTER: So you are moving to

22 strike Exhibit 1A, which is an email dated

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1 December 12, 2013, regarding the, I guess the

2 public relations firm that was hired by the

3 District of Columbia government to advocate for

4 the McMillan project within the community?

5 MS. BROWN: Are you testifying that

6 this --

7 (Simultaneous speaking)

8 MS. FERSTER: No, I'm just identifying

9 this.

10 MS. BROWN: Oh.

11 MS. FERSTER: I am identifying --

12 (Simultaneous speaking)

13 MS. BROWN: I don't think we know

14 exactly what it is and I think that we just, we

15 need to strike it. It doesn't say who it's from,

16 who it's by.

17 MR. BYRNE: Are you talking about 1A

18 now?

19 MS. BROWN: 1A where it's an email

20 from the --

21 MR. BYRNE: From --

22 (Simultaneous speaking)

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1 MS. BROWN: Yes, Chit Nualdas to Jamie

2 Fontaine and Co., and it's with respect to some

3 correspondence presumably about the

4 misconceptions about the site and the moniker of

5 the term "park." I think it's irrelevant to the

6 proceeding.

7 MR. BYRNE: Okay.

8 MS. FERSTER: If I can respond?

9 MR. BYRNE: Please.

10 MS. FERSTER: I mean I think that the

11 Mayor's Agent, you yourself, have brought up and

12 have reflected a lot of the misconceptions about

13 the position of the Friends of McMillan Park that

14 has saturated the Applicant's testimony.

15 The Friends of McMillan Park they only

16 want a park, they don't want any development, et

17 cetera. And I think this email that clearly

18 identifies who it was from and who it is to

19 clearly shows that this misconception is not

20 happenstance, it's part of a paid campaign.

21 MS. BROWN: Objection.

22 MS. FERSTER: A paid campaign financed

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1 by the District of Columbia to influence public

2 opinion about this project. So I think the

3 Applicant and you yourself have brought this,

4 made this a highly relevant submission.

5 MR. BYRNE: "You've made this a highly

6 relevant submission." I don't really get what

7 the, you know -- So I have never, I don't know

8 really what you're talking about, that in the

9 sense of the influence of the public relations

10 firm has no influence on me, I am not aware of

11 their work.

12 I am basing my reactions on the

13 testimony I am hearing. Ms. Sellin just

14 testified about the desirability of keeping the

15 site open for a memorial, et cetera.

16 I am confused about what your position

17 is. You have had one witness who testified

18 saying that it's inadequately, there should be

19 denser development on the site, you've got

20 another witness saying there basically should be

21 just townhouses on Shining Street.

22 So I am confused and I don't see the

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1 relevance of an email about misconceptions from

2 somebody in the office to a bunch of people who

3 are on the development team. What is this

4 supposed to show?

5 MS. FERSTER: Well, I do need to

6 clarify, of course, that our expert witness is to

7 the extent that they think there should be more

8 or less development.

9 They are experts, they are offered

10 because they have their expertise, they have

11 offered some personal opinions in the context of

12 their expert testimony about density, more or

13 less, but the official position of the Friends of

14 McMillan Park was articulated today and has been

15 consistently articulated by Mr. Vining and other

16 representatives of Friends of McMillan Park as

17 Mr. Vining has stated.

18 So it does cause us some concern when

19 the Mayor's Agent Hearing Officer asks a question

20 of one of our witnesses that says isn't it true

21 that Friends of McMillan Park want this entire

22 site to be a park, and, clearly, somebody is

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1 hearing, is articulating that as being Friends of

2 McMillan Park's position.

3 MR. BYRNE: I would suggest it is your

4 witnesses who are articulating it. So I heard

5 Mr. Vining and I very much appreciate his

6 testimony, I thought it was very thoughtful and I

7 take it very seriously, and so what you are

8 trying to tell me is that I should accept this

9 email to show that somebody in the District

10 things that there is misconceptions about the

11 position of the developers and that they are

12 trying to, they are hiring a public relations

13 firm to try to articulate what the vision of the

14 developers are.

15 So, yes, I don't feel a need to

16 exclude this. I am going to have it in the

17 record, but I don't appreciate the way you put

18 it.

19 Any other -- I am going to leave this

20 in the record. Anything else?

21 MS. BROWN: I don't have an objection

22 to Attachment 2 or 3. I do have an objection to

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1 2A, which is the Office of the District of

2 Columbia Auditor letter. I think it's irrelevant

3 to the remand issues that were presented to the

4 Mayor's Agent.

5 It's well beyond the scope of anything

6 that the Mayor's Agent could address and consider

7 and we have -- It's a 2015 letter and if we

8 wanted to go through the whole history of what's

9 happened subsequent to that we probably could,

10 but I don't know what good it would do the

11 Mayor's Agent to have a whole litany of testimony

12 on this letter.

13 MR. BYRNE: I --

14 MS. FERSTER: So -- If I may respond?

15 MR. BYRNE: Yes, please.

16 MS. FERSTER: So a number of our

17 witnesses have talked about the difficulty that

18 Friends of McMillan Park has in understanding

19 that it is the Applicant's burden, of course, to

20 show that there are no feasible reasonable

21 alternatives to this particular project that

22 would involve less harm to the historic property.

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1 It is difficult when this project the

2 vertical development has not been competitively

3 bid and this letter I think quite clearly from

4 the D.C. Auditor shows that this project should

5 have been competitively bid but it was not.

6 We are not -- And we are offering this

7 simply to, as part of the explanation for why it

8 is, why the Applicants have really failed to

9 satisfy their burden of proof in showing

10 alternatives and why this proceeding appears to

11 shift the burden on us where it shouldn't have

12 been.

13 Had this project been competitively

14 bid we would have had alternatives, so they would

15 have been able to show that there were

16 alternatives that had been considered.

17 MR. BYRNE: Okay, but that --

18 MS. BROWN: I --

19 MR. BYRNE: No, go ahead.

20 MS. BROWN: Oh, I'm sorry. I really

21 do have to clear up one point on the record and

22 it's a false statement that Ms. Ferster is making

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1 about whether or not this project was

2 competitively bid and it's been repeated numerous

3 times and it's not true and you can go to the

4 link that's in our pre-hearing statement on Page

5 30 to the counsel proceedings where it explains

6 in detail through those documents that it was

7 competitively bid, so we need to get that clear

8 on the record.

9 MS. FERSTER: Well, if I could

10 respond, I said the vertical development. We

11 understand that there was a competent competitive

12 process asked of the D.C. Auditor to select this

13 particular development team as the master

14 planners for the project.

15 They were never intended to be the

16 actual developers. That changed at some point in

17 the project as the agreements that are in the

18 record show and it was always the intent that the

19 vertical development would be competitively bid.

20 It has not been competitively bid and

21 that is why the D.C. Auditor wrote this letter.

22 MS. BROWN: The bottom line I think

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1 that this goes to something that is completely

2 irrelevant and wholly outside this proceeding and

3 should be excluded from the record.

4 MS. FERSTER: I mean it's a public

5 document. It is accessible via internet website

6 searches.

7 MR. BYRNE: All right.

8 MS. BROWN: Doesn't make it relevant.

9 MR. BYRNE: All right. I'm going to

10 -- I think in this cases it's appropriate to have

11 a paper trail, a relaxed notion of relevance of

12 documents that go into the record.

13 There has been ongoing testimony by

14 people who oppose the application pointing to the

15 lack of, you know, at least design competition

16 going forward and so I'm willing to accept it on

17 that grounds.

18 MS. BROWN: I have no objection to 3A.

19 I don't think it's relevant, but I don't think

20 it's -- I don't have an objection to it being in

21 the record.

22 The same for Item 3B. I think it's

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1 irrelevant but I don't care if it's in the

2 record. I do have an objection to Item 3C.

3 MR. BYRNE: Item 3C is a letter from

4 Ms. Ferster's office to the Zoning Commission of

5 earlier this month. Why is this in here, Ms.

6 Ferster?

7 MS. FERSTER: Well, I'd like to hear

8 the basis for the objection first.

9 MS. BROWN: The objection is that it

10 belongs in the Zoning Commission record and

11 that's where it is and I don't see any relevance

12 to this case if it's dealing with a zoning issue.

13 MR. BYRNE: All right. Ms. Ferster?

14 MS. FERSTER: Okay. So there was a

15 bit of overlap between the Zoning Commission's

16 request that their remand proceeding, where they

17 indicated that there would be an evaluation of

18 alternative, there should have been an evaluation

19 and asked for an evaluation of alternatives, and

20 this provides a response, a supplemental response

21 in the context of that issue.

22 It also deals very specifically --

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1 Sorry. Can you show me where in your testimony

2 it might have been?

3 (Off-microphone comments.)

4 MS. FERSTER: Right. I mean, as Mr.

5 Vining's testimony indicates, you know, this

6 really deals with the medical facility and

7 whether or not this is a special merit component

8 and a lot of the factual arguments that have been

9 made here are rebutted in this statement.

10 So in the interest of Mr. Vining not

11 simply repeating these arguments he just attached

12 this testimony. He could simply read this as

13 part of the Friends of McMillan Park's position

14 that the medical office building is not, you

15 know, is not a special merit feature.

16 And if you don't want the letter,

17 which was just attached for efficiency purposes

18 he could just read it as part of his testimony.

19 I wrote it on behalf of Friends of McMillan Park.

20 It's just an efficiency item.

21 MR. BYRNE: Well, it's peculiar to

22 have an advocacy piece by a lawyer read into the

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1 record as evidence I must say, but also at the

2 same time I don't want to put Mr. Vining and the

3 rest of us to the point of listening to him read

4 it all into the record.

5 Mr. Vining, are you willing to say

6 that the factual assertions in here are correct

7 to the best of your knowledge?

8 MR. VINING: Oh, you're talking about

9 specifically this point we are discussing right

10 now?

11 MR. BYRNE: Yes, this letter to the

12 Zoning Commission by Ms. Ferster.

13 MR. VINING: Yes. The point was, I

14 hope it was clear, maybe it is not, so we're

15 talking about the traffic, what the project is

16 doing in the way of traffic, it looks like

17 mitigation, unsuccessful mitigation, and it's

18 being argued in some sense in here as a benefit,

19 and I was trying to address that.

20 MR. BYRNE: I don't think actually --

21 Is that what this was?

22 MS. FERSTER: Well, let me ask a

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1 question, Mr. Vining. Before I submitted this

2 letter did you review this letter and contribute

3 to it and does it reflect the position of the

4 Friends of McMillan Park?

5 MR. VINING: Yes, definitely, because

6 there was dialogue there, we're trying to

7 emphasize a point here, we, and the Friends of

8 McMillan Park.

9 MR. BYRNE: Okay. Well, all right.

10 I mean the Zoning Commission has done what the

11 Zoning Commission is going to do, but I will

12 allow it in the record on that basis.

13 MS. BROWN: May I ask one follow-up

14 question now that it's in the record? Mr.

15 Vining, did the Zoning Commission find this

16 letter persuasive and adopt the use of it?

17 MS. FERSTER: I object to that

18 question. He does not know what the Zoning

19 Commission thinks or does not think. They have

20 not issued their written order.

21 I think it is public record that the

22 Zoning Commission has approved the PUD, but their

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1 particular reasoning or what they found

2 persuasive or not persuasive is, you know, as yet

3 unknown.

4 MR. BYRNE: I'll sustain the

5 objection.

6 MS. BROWN: I have an objection to

7 Attachment 5, it's the demolition permit that was

8 hotly contested at the July 14th hearing. That

9 was determined not to be within the scope of this

10 hearing and now it's in the record if you admit

11 it.

12 MS. FERSTER: Okay, I'd like to

13 respond to that. It was not -- The demolition

14 permit was determined not to be within the scope

15 of the Applicant's testimony, but there was a

16 specific colloquy, you know, where I think there

17 was a general consensus that it is highly

18 relevant to the proceeding as a whole and

19 certainly the conditions that the Mayor's Agent

20 order, eventual order, should it approve the

21 demolition and subdivision, that the Friends of

22 McMillan Park believed should be attached to it

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1 and I think it's important that everybody

2 understand the consequences of not including

3 appropriate conditions.

4 And the letter that is drafted here

5 that was sent to the D.C. Historic Preservation

6 Office also includes emails, email correspondence

7 written by me to Mr. Dennee at the Historic

8 Preservation Office where, again, repeatedly

9 raising our concerns about the possibility that a

10 demolition permit could be issued without, prior

11 to any new construction permit and how

12 dismissively they were treated at the HPO level.

13 And I think that's important for this

14 Mayor's Agent Hearing Officer to understand that

15 this time around it is critically important that

16 the Mayor's Agent Order include appropriate

17 conditions.

18 MS. BROWN: What I find confusing is

19 that this is Mr. Vining's testimony yet we're

20 hearing now Ms. Ferster argue that their merits,

21 the contents of these documents, which you

22 specifically said were beyond the scope of this

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1 hearing, because once you let this demo permit

2 in, and this type of letter in, you are now

3 opening up a can of worms about whether this was

4 properly done or not and it's Ms. Ferster's

5 assertion that it was improperly done and that

6 conditions were not put on the Order that would

7 prevent such "untoward action" here.

8 That's a whole argument before the

9 Office of Administrative Hearings or something

10 through DCRA and to imply that there is some

11 wrongdoing here and something nefarious is

12 completely and wholly wrong.

13 We don't know the facts of the

14 issuance of this permit and this is not the place

15 to determine what that is or whether there was

16 anything wrong that happened --

17 MR. BYRNE: So they're --

18 MS. BROWN: -- and by implication that

19 there was something wrong.

20 MR. BYRNE: Okay. Just so to

21 understand, if there is an ongoing proceeding

22 involving the appropriateness demolition --

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1 MS. FERSTER: No, there's not. Of

2 course, we could have challenged the demolition

3 permit before the Office of Administrative

4 Hearings, but it's a violation of the Historic

5 Preservation Law.

6 It's not an OAH issue and fortunately

7 --

8 MS. BROWN: Ms. Ferster is

9 misrepresenting the facts.

10 MS. FERSTER: Fortunately in this

11 particular case after the demolition permit had

12 been issued the court decision came down

13 literally days after the demolition permit has

14 been issued so the permit evidently was

15 cancelled, so no OAH proceeding is necessary or

16 appropriate.

17 I would suggest if we had filed any

18 kind of proceeding before the OAH it would have

19 been dismissed as moot in any case.

20 And, again, you know, the Applicant is

21 able and can provide rebuttal testimony to show

22 what they plan, you know, whether or not, to show

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1 that this demolition permit was lawful, but I

2 mean it's public record that no construction

3 permit had been issued before this demolition

4 permit was issued.

5 So I just think it's really important

6 that the Mayor's Agent understand the importance

7 of appropriately conditioning it, the Order, in

8 light of the fact of what happened last time.

9 And I also note on the record that

10 when the Mayor's Agent issued the Order approving

11 the demolition the last time around before the

12 Order became final Friends of McMillan Park filed

13 the Motion to Correct asking that the Order be

14 appropriately conditioned as required by law.

15 We received an email again from HPO

16 saying we're going to do what we have to do under

17 the law, nothing is necessary to correct the

18 Order.

19 The Mayor's Agent never responded to

20 our Motion to Correct, it was never addressed

21 even though the Applicant did oppose it, again,

22 also, saying, you know, of course, they're going

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1 to do what they need to do under the law.

2 It was even omitted from the

3 administrative record that was sent up the Court

4 of Appeals. I had to appeal to the Office of

5 Attorney General to include the Motion to Correct

6 in the official administrative record.

7 So this issue has gotten lost, it's

8 gotten ignored, it's gotten dismissed, and it

9 needs attention.

10 MR. BYRNE: Well, the only way that I

11 can give it attention is, as I understand you are

12 saying, is to make, to attach conditions that are

13 necessary to see that any demolition is carried

14 out consistent with the Historic Preservation

15 Act, is that correct?

16 MS. FERSTER: I think --

17 (Simultaneous speaking)

18 MS. FERSTER: And we had some colloquy

19 about the possibility of in our proposed Findings

20 of Fact and Conclusions of law that it would

21 include what we believed to be appropriate

22 conditions to ensure that no demolition or

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1 subdivision is carried out until those

2 requirements of the law are complied with and we

3 do --

4 MR. BYRNE: Those requirements of the

5 law meaning?

6 MS. FERSTER: That no demolition or

7 subdivision be -- No demolition permit be issued

8 and no subdivision be recorded unless a new

9 construction permit is issued simultaneously and

10 the Applicant demonstrates the ability to

11 complete the project, which are the legal

12 requirements.

13 And, you know, we do plan in our

14 proposed Findings of Fact and Conclusions of Law

15 to include what we believe to be appropriate

16 conditions that would ensure that those, that the

17 legal requirement be complied with.

18 MR. BYRNE: So, obviously, you will do

19 that, I would expect that you would do that and I

20 would expect that I would consider those on the

21 merits, so I don't want -- Well, I have no

22 intention of litigating the issue of whether this

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1 permit was issued correctly or not.

2 MS. FERSTER: And we don't offer it

3 for that purpose.

4 MR. BYRNE: You are offering it for

5 the purpose of reminding me to pay attention to

6 the conditions that you want to attach to the

7 permit for the board?

8 MS. FERSTER: And because of -- And

9 illustrating the consequences of not paying

10 attention that happened the last time around.

11 MR. BYRNE: Well, but that involves

12 assessing whether this was handled correctly or

13 not correctly --

14 MS. FERSTER: I mean --

15 MR. BYRNE: -- by the Historic

16 Preservation Office and I don't want to do that.

17 But I do take your point about that, you know,

18 the Court of Appeals did not like the fact that I

19 left up to the HPO, excuse me, to the Historic

20 Preservation Review Board, to make further

21 assessments, and I got that.

22 If it is in the record solely for the

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1 purpose of encouraging me to take seriously the

2 need for considering conditions attached to a

3 demolition permit I can accept it for that

4 purpose.

5 MS. BROWN: I strenuously object to

6 that. I think that -- I do not object to having

7 conditions in the Order that follow the statutory

8 requirements.

9 MR. BYRNE: Right.

10 MS. BROWN: I don't think we need

11 these documents to remind us what the statute

12 says.

13 MR. BYRNE: Well, I appreciate that.

14 What --

15 MS. BROWN: And I don't want them in

16 the record because it will get convoluted as it

17 goes as it goes up to court and I know how the

18 can of worms gets opened by Ms. Ferster when we

19 go on appeal and I just don't want these

20 documents --

21 MS. FERSTER: I really object to those

22 sorts of characterizations of our mitigation

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1 tactics.

2 MS. BROWN: I let you speak. I let

3 you speak, let me speak.

4 MR. BYRNE: Yes, go ahead, Ms. Brown.

5 MS. FERSTER: I don't want to see

6 these in the record. They are irrelevant, they

7 don't belong here, and you don't need to remind

8 him what the statute is, the Court does not need

9 reminded what the statute is.

10 MR. BYRNE: All right. Ms. Ferster?

11 MS. FERSTER: Again, you know, I am an

12 officer of the court. I do not engage in

13 litigation tactics and I am offended by counsel's

14 discourteous characterization of my

15 representation of my client, A.

16 B, I agree with the Mayor's Agent that

17 a letter from a lawyer is not going to, you know,

18 it's not going to be confused by anybody other

19 than what it is offered for.

20 It is our belief that this issue

21 should be given full and due attention now. We

22 are not litigating a demolition permit that no

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1 longer exists, it's been suspended at this point.

2 So this is simply a statement of fact

3 to correct what I believe was, you know, an

4 unfortunately incomplete record that went up to

5 the Court of Appeals the last time around.

6 I don't think that anybody is going to

7 misinterpret it and I certainly have never

8 engaged in any efforts to mislead or deceive any

9 tribunal in which I am heard before.

10 MR. BYRNE: Very good. I think I am

11 going to take this under advisement. So why

12 don't we take a little, maybe we could take a

13 short break here, I'd like to read the letter

14 more carefully.

15 Why don't we take a 10-minute break

16 and we'll commence again at 10:47.

17 MS. BROWN: If I could just say

18 quickly, for the rest of the documents I think

19 they are irrelevant but I don't object to them in

20 the record.

21 MR. BYRNE: Thank you, okay.

22 (Whereupon, the above-entitled matter

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1 went off the record at 10:42 a.m. and resumed at

2 10:53 a.m.)

3 MR. BYRNE: All right, folks, let's

4 recommence. I am going to allow this letter to

5 come into the record for the purpose of

6 suggesting that what the Mayor's input might do

7 in terms of issuing conditions attached to any

8 future demolition order, and that purpose only,

9 and, you know, we can talk about conditions

10 later.

11 I know the claim made under the Act,

12 no demolition permit is supposed to be issued

13 unless a claim for new construction is issued and

14 the owner demonstrates the ability to complete

15 the Act. It's not a question as to who is

16 responsible for making those determinations.

17 It's not stated in the Act and, you know, maybe

18 we can resolve that right now. Okay.

19 MS. FERSTER: That concludes -- unless

20 there's more cross examination for Mr. Vining,

21 that concludes the testimony of Friends of

22 McMillan Park.

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1 MS. BROWN: And we have no more cross.

2 MR. BYRNE: Okay, fair enough. Okay.

3 I guess Mr. Otten has some presentations to make.

4 MR. OTTEN: Yes. It's going to take

5 me a moment to get set up.

6 (Pause)

7 MR. BYRNE: Okay, now you're going to

8 be presenting some slides?

9 MR. OTTEN: I was hoping to present

10 some, yes, some slides that would have some

11 information we'd like to include. It's directly

12 connected to our testimony.

13 MR. BYRNE: Okay, so I'm looking at a

14 screen in the back. I can't possibly read that.

15 MR. OTTEN: Right. So how I'd like to

16 approach this is, as I read through my testimony,

17 I'll pull up the slides that I want to

18 specifically reference you to from this list.

19 So, for example, let's say we were to --

20 MR. BYRNE: Well, what I'm thinking is

21 that perhaps I can turn on one of these.

22 (Off-microphone comments)

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1 MR. BYRNE: This one, yes. Just turn

2 it on here. All right, very good. We've been

3 able to, with the help -- I can now see them on

4 my screen. So that's good, thank you.

5 PARTICIPANT: Okay, sure, Your Honor.

6 MR. BYRNE: Go ahead, please proceed.

7 MR. OTTEN: Okay. Good morning, Mr.

8 Byrne. My name is Chris Otten, for the record,

9 representing DC For Reasonable Development.

10 We're a city-wide association of

11 citizens and groups formed according to DC code

12 as an unincorporated non-profit association with

13 the expressed mission to preserve and protect our

14 members' personal and property interest as it

15 relates to development here in the District of

16 Columbia.

17 As testified to by the Applicant, this

18 is a very important rehabilitation project for

19 this site, a historic site on the National

20 Historic Register and in the DC Register of

21 Historic Sites.

22 And we're coming back before you. As

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1 you know, DC for Reasonable Development had

2 presented a case at the 2015 hearings, I believe

3 on July 2015. Information is already on this

4 record as to the pertinent issues before you.

5 Now that the Court has vacated and

6 remanded, there are several issues that you are

7 entertaining now to look at this project

8 objectively and see if it rises to one of special

9 heritage.

10 And there was, of course, the factors

11 giving rise to that include, you know, some of

12 the benefits of the project, and the land use

13 planning around that project, and whether that

14 rises to something that's been taken adequately,

15 given the two million square feet of development

16 we're looking at here with this project.

17 And so we have, as I explained at the

18 last hearing, we have put all of our attachments

19 and testimony on a USB stick which we'd like to

20 submit to everybody, all the parties and to

21 yourself. And that was confirmed last time, at

22 the last hearing. And what I want to do today is

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1 --

2 MR. BYRNE: Well, it hasn't been

3 admitted yet.

4 MR. OTTEN: Right.

5 MR. BYRNE: But you can proceed with

6 that --

7 MR. OTTEN: Right, right. I'll try to

8 admit at the end of the presentation. I also

9 expect a witness who's running a little late, and

10 he should here. But I believe I can start my

11 presentation. Both as a --

12 MR. BYRNE: So just to understand,

13 you're going to be a witness?

14 MR. OTTEN: I am a presenter and a

15 witness, I guess, at this point, representing our

16 members, of which I'm the co-facilitator of the

17 group.

18 MR. BYRNE: Okay.

19 MR. OTTEN: And we also have an expert

20 witness.

21 MR. BYRNE: Okay.

22 MR. OTTEN: So when he arrives, at

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1 that point, I will stop my presentation, or find

2 a good point to stop, and he should be here at

3 any minute, and present him to you and to the

4 parties as an expert, so you can determine at

5 that time.

6 MR. BYRNE: Okay. So I don't -- I

7 don't think you've been sworn as a witness.

8 MR. OTTEN: I have not. Should I do

9 that now?

10 MR. BYRNE: I think so. Okay, yes.

11 So just please raise your right hand.

12 (Witness sworn.)

13 MS. BROWN: I'm sorry, I was hoping

14 that, for any other witness in the room that

15 needs to be sworn in, it could be done at one

16 time if that's convenient, or if you want to do

17 it one-on-one.

18 MR. BYRNE: Let's wait until after --

19 I hear you, and I'm happy to do --

20 MS. BROWN: That's fine.

21 MR. BYRNE: -- your witnesses when the

22 time comes. Okay.

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1 MR. OTTEN: Okay, I think first it's

2 important to note for the record that DC for

3 Reasonable Development, that's all of our

4 arguments, and citations, and facts that we've

5 introduced to the record over two years ago, and

6 subsequently since the Court remand, in our

7 presentation today.

8 We do the same for -- we adopt the

9 submission to the presently known Park in the

10 argument except by which where maybe our

11 positions diverge. But otherwise, we will adopt

12 all the facts and submissions by phone, and the

13 same with everybody who testifies in opposition

14 by the public.

15 And like I was starting out with, this

16 is a very big project. And it's going to have

17 very serious impacts to the future of this site

18 and the surrounding area.

19 We're talking two million square feet

20 of construction work on a historic site that has

21 25 acres of open, continuous land right now.

22 It's fully public and, yes, limited in

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1 accessibility to the public but certainly not its

2 views, and its vistas. And it's a wonderful

3 planned property, in the summer especially, for

4 our members.

5 We want to put on the record to start

6 that, also, we feel we've been denied some due

7 process in the lack of being able to cross

8 examine the co-applicant in this case which is

9 DMPED.

10 While we did get to cross examine Mr.

11 Kenner at the July 14th hearing, there was a very

12 serious concern that we would not be able to

13 cross examine the actual folks who are on this

14 project from DMPED. And I think that's Mr.

15 Gilles Stucker. He was here at the July 14th

16 hearing, but he hasn't been -- he wasn't put up

17 for cross examine.

18 And we feel like that's hurt us,

19 because we'd like to ask them questions specific

20 to their analysis of this case, vis a vis what

21 you need to decide.

22 And for some reason, I've lost my

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1 window -- Let me go back to the USB stick. Let

2 me just pull that back up. Here we go, okay.

3 And so what I wanted to start out with

4 was the government organizational chart which

5 shows very clearly that DMPED, as the co-

6 applicant, is the head of the Office of Planning

7 and Historic Preservation Office. And so there's

8 an inherent conflict of interest in this case and

9 for the zoning cases as well. And this is not

10 any fault of yours, it's just how it is.

11 And we just wanted to put that on the

12 record, that it's very hard for our Office of

13 Planning to actually separate out planning from

14 economic development. And one of the key things

15 that's been raised in this case is that the

16 economic development is part of the benefit of

17 this project, the significant tax revenue that is

18 being claimed to be generated by this project.

19 We would argue that there's also going

20 to be significant taxes spent to construct the

21 project and then to ultimately operate the

22 project, taxes that go to the land use issue,

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1 whether it be, you know, new streets, new pipes,

2 new electric, new utility lines, new police and

3 fire stations, and emergency responders that

4 would be needed, new schools, new senior centers,

5 new libraries.

6 This type of analysis, unfortunately

7 the economic engines are driving this, and the

8 planning engines have been taking a back seat.

9 Because conflict of interest, we believe, is

10 largely part of it.

11 These fundamental, whole neighborhood

12 approach land use issues have not been dealt

13 with. And we just wanted to bring that to your

14 attention. That should have really been dealt

15 with in Zoning, but it did not occur in large

16 part.

17 With that said, one of the other

18 benefits that we heard about in this case is the

19 housing and the significant affordable housing

20 being claimed by the Applicant.

21 We have a situation in the city right

22 now where some of the new projects being approved

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1 by the Zoning Commission, such as the apartments

2 on U and 13th Street, are, according to the

3 Washington Post dated August 8th of this year, we

4 have rents ranging from $3,035 for a one-bedroom

5 to $13,500 per month for the largest apartment,

6 which is 2,000 square feet, $13,000 a month.

7 There's really no clear analysis of

8 what the cost of rent, and of the new townhomes,

9 purchase prices, or anything like that on the

10 record. But we expect, just like the other

11 apartments that are being built new in this city,

12 that the significant luxury presented in this

13 case will claim high rents, and high costs, and

14 will make it very unaffordable for most

15 Washingtonians.

16 Now, the Applicant's testimony

17 affirmed that one of the District-wide objectives

18 of the city is that 30 percent of new housing

19 city-wide should be affordable. And there's

20 obviously a housing crisis in the city, an

21 affordable housing crisis. And the applicant is

22 offering what they claim to be 20 percent of the

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1 units will be affordable.

2 Now, affordability is measured not on

3 the number of units because, in this case, the

4 affordable units are much smaller than the luxury

5 units. You would think that 20 percent of the

6 units would mean 20 percent of the gross floor

7 area of the entire project, or the residential

8 components of the project would be affordable.

9 But it's not.

10 If you do the math from the Zoning

11 Commission order, it's actually 14 percent of the

12 proposed project. Because new housing will be

13 considered affordable across McMillan's 25 acres.

14 So this cannot be considered substantial in any

15 means.

16 And that's what's, you know, what's

17 directed by the comprehensive plan, is 30

18 percent. We're half of that, we're less than

19 half of that. And we're also looking at some of

20 the laws that were passed, maybe perhaps after

21 this deal came before you the first time.

22 But now it's several years on where

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1 the law says, you know, public land, which this

2 is, along public thruways that are busy, like

3 major bus routes, require 30 percent. That's

4 just as a baseline. So we're in an affordable

5 housing crisis that's seeing rents on U Street at

6 $13,000 a month. Certainly what's being

7 proffered here cannot be considered housing of

8 special merit.

9 And there are reports throughout the

10 city that show right now that the stabilization

11 of existing neighborhoods far outpaces the menial

12 affordable housing proffers like that proposed by

13 the Applicant in this case.

14 City planners seem not capable of

15 tracking trends in real estate speculation. But

16 it's clear that DC land values continue to jump

17 with each new large luxury project on either

18 public land or private by rights of element.

19 And where OP's latest news about city

20 development lacks much information, UrbanTurf and

21 BizNow news feeds are booming and developers are

22 burning and churning to spend. I mean, it's

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1 being celebrated right now. The first million

2 dollar home in Bloomingdale was just touted on

3 BizNow. And these hurt.

4 So the real estate market in this city

5 is hot. And it's one of the hottest in the

6 Nation. And so therefore the question of

7 affordability and the crisis that is underway is

8 a critical one to analyze in your reviewing

9 whether or not this is special merit.

10 Unfortunately, we believe the

11 financial incentives here are driving the

12 planning, the land use planning. And we're not

13 sure what VMP is promising their investors for

14 return on investment. But we would imagine it's

15 unreal, it's unreal percentages. But that's not

16 on the record as of yet.

17 Part of what's at play is that it's

18 not just a few houses. There's 600-plus houses,

19 500-plus luxury units. And that will inevitably

20 be more destabilization and pressure on land

21 values in the surrounding community. So while

22 the Applicant may argue there's no direct

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1 displacement, of course, on the site there is no

2 housing on the site.

3 In serious ways, the surrounding area

4 will be further displaced. And particularly,

5 what you won't find on the record is any sense of

6 any analysis, demographic analysis of the local

7 surrounding community who may be more vulnerable

8 to displacement than others.

9 And that's the people we want to help.

10 That's who we want go seek out and ensure that

11 any conditions in the order are mitigating the

12 displacement pressures on the folks who live in

13 the surrounding area. That has not been done.

14 And that is a serious failure in land use

15 planning in this case.

16 I think, on that note, my expert has

17 arrived. I'd like to call him up and introduce

18 him as an expert, so we can move that.

19 MR. BYRNE: Okay. Let's proceed with

20 that.

21 MR. OTTEN: Okay, for the record, DC

22 for Reasonable Development is bringing forward

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1 Mr. Edward M. Johnson, a licensed architect and

2 planner here in the District of Columbia for

3 many, many decades. As you have his resume

4 before you, we would offer him up as an expert in

5 land use, planning, and architecture for the

6 purposes of this hearing.

7 Mr. Byrne, I want to point out too

8 that Mr. Johnson has sat on the Historic

9 Preservation Review Board. He is also a US

10 Department of Housing and Urban Development

11 Fellow. In 1996, he received a Distinguished

12 Alumni award back at Howard University Club of

13 Washington where he's gotten his degrees and

14 significant, obviously, experience in historic

15 projects, construction projects, an expert

16 consultant. And he can address any of these --

17 MR. BYRNE: Mr. Johnson, when were you

18 on the Historic Preservation Review Board?

19 MR. JOHNSON: Just as former Mayor

20 Marion Berry was leaving, for a couple of terms.

21 MR. BYRNE: Okay.

22 MR. JOHNSON: Or I should say during

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1 his last term.

2 MR. BYRNE: During his last term.

3 MR. JOHNSON: Yes.

4 MS. FERSTER: Friends of McMillan Park

5 has no objection to his expertise as a land use

6 planner.

7 MR. BYRNE: Okay.

8 MS. BROWN: I have a question about

9 what he's being qualified as. I just heard

10 something different from what Ms. Ferster said

11 and what I thought I heard Mr. Otten say.

12 MR. OTTEN: To be clear for the

13 record, I am bringing forward Mr. Johnson as a

14 land use expert and as an architectural --

15 architect expert, architectural expert.

16 MS. BROWN: And I have no objection to

17 his qualifications as an architect, as an expert

18 in that field. I have -- and I see his

19 qualifications in landscape architecture. And I

20 wondering if I could just ask a couple of

21 questions about the urban planning for

22 clarification. I may have missed something going

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1 through this about the urban planning

2 qualifications.

3 MR. BYRNE: Please proceed.

4 MS. BROWN: Oh. Mr. Johnson, could

5 you explain your urban planning experience and

6 expertise?

7 MR. JOHNSON: Sure, nationally first,

8 my firm developed the national design guidelines

9 for planning noise barriers across America. So

10 as all of us in this space traverse all of the

11 highways in America, you're looking at our work.

12 My former company name was Organization for

13 Environmental Growth. It later changed to Edward

14 M. Johnson and Associates, PC.

15 Beyond that, let's go locally. Oh, by

16 the way, beyond that, we set in place national,

17 again, US DOT Federal Highway Administration, we

18 set in place the national guidelines for planning

19 primary and secondary schools that are forced to

20 relocate based on highway construction. That is

21 US DOT Federal Highway.

22 Now, let's go to former Urban Mass.

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1 We developed a number of national projects, one

2 of which is called self-service fare collection,

3 which was designated by Urban Mass as state of

4 the art. We set in place the planning,

5 ultimately the self-service fare collection

6 programs across America, and a whole series of

7 other projects for Urban Mass.

8 Now, locally, my firm developed the

9 downtown street network analysis of the entire

10 central business core of downtown, 147 city

11 blocks, M Street North, Pennsylvania Avenue

12 South, 15th Street West, and North Capitol.

13 Some of the recommendations in that

14 urban design transportation plan have been

15 implemented, and folks are experiencing them

16 today, one of which was the removal of the island

17 on F Street, the recesses in the sidewalks for

18 parking on New York Avenue, the changes in street

19 patterns, north/south, some of the one-way

20 streets.

21 Part of our analysis, recommendations,

22 the study of the land use analysis of the Fort

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1 Totten Metro stop which served as the basis for

2 planning of projects which have occurred in the

3 future, which is now now. Another was the

4 environmental assessment of the proposed Metrobus

5 garage in southwest Washington, D.C.

6 Beyond that, I'm a native

7 Washingtonian, I have experienced the growth of

8 development projects in the city, and especially

9 those that are in place now in Ward 5, and

10 specifically Brookland, and those that are being

11 planned for new development. And I'd like to

12 address them.

13 Architectural -- oh, wait a minute,

14 let me mention something else. My firm developed

15 120,000 square foot, four-story plus, 40,000

16 square foot headquarters for the Girl Scout

17 Council in the nation's capital to be developed

18 on the southeast corner of North Capitol and New

19 York Avenue.

20 We finished, had a model developed,

21 submitted the permits, they had some serious

22 money issues and walked away from the project. I

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1 learned a lot about the soil and the water under

2 that site which is also present at McMillan.

3 In addition to that, some years ago,

4 for the Department of Economic Development, my

5 firm developed a design concept for the McMillan

6 Reservoir site which they did not go forward

7 with. Those are a few of my experiences.

8 By the way, I've been in business in

9 the District of Columbia for over 35 years. For

10 20 of those years, I've been winning zoning

11 cases. So there's another area of my knowledge

12 and my experience. I've won land use changes,

13 special exceptions, and zoning variances in DC.

14 MS. BROWN: Thank you, Mr. Johnson.

15 I think you're extremely qualified in

16 architecture, and it seems that you have an

17 expertise in planning related to transportation

18 features. Do you have -- you're very well

19 educated. Do you have a degree in urban

20 planning?

21 MR. JOHNSON: Yes, I do.

22 MS. BROWN: Wonderful.

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1 MR. JOHNSON: Yes, I do. I have a

2 master's in urban planning. As a matter of fact,

3 I hold three fellowships, Housing and Urban

4 Development Fellowship in 1970, they only gave 50

5 in the nation, Urban Mass Transportation Fellow

6 and Doxiadis Fellow in, I'm sorry, 1969. At the

7 time, Doxiadis was the international planner in

8 the world. And so it was a tremendous honor to

9 have won all three of these fellowships at the

10 same time.

11 And I have used the knowledge from the

12 academic experiences and the professional

13 experiences to apply to my business and to the

14 projects we've been involved in.

15 My resume addresses -- personally, it

16 does not address all of the variety of

17 experiences my firm has achieved in the nation's

18 capital.

19 MS. BROWN: I think he's qualified.

20 Thank you.

21 MR. BYRNE: I agree. Please proceed.

22 MR. OTTEN: Thank you, Mr. Byrne.

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1 Thank you, Mr. Johnson, for being here. It's an

2 honor to be sitting next to you.

3 Just for the record, you have seen the

4 plans for McMillan Park as submitted for the

5 record by the Applicant, correct?

6 MR. JOHNSON: Yes, I have.

7 MR. OTTEN: Okay. And you said you'd

8 lived in Ward 5 and you work in Ward 5 for how

9 many years now?

10 MR. JOHNSON: To be specific, I've had

11 an architectural planning practice with zoning

12 added for almost 40 years.

13 MR. OTTEN: Got it.

14 MR. JOHNSON: I lived in both Mount

15 Pleasant, but I've lived in -- I now live in the

16 Ward 5 area.

17 MR. OTTEN: Okay. And this is

18 situated at North Cap and Michigan which is on

19 the border of Ward 1 and Ward 5, as you know.

20 MR. JOHNSON: Yes.

21 MR. OTTEN: You'd asked me to bring

22 this Ward 5 map which kind of shows some of the

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1 major byways and thruways. And also the black

2 dots represent some of the major projects in the

3 area, correct?

4 MR. JOHNSON: Yes.

5 MR. BYRNE: So are you going to put

6 this into the record?

7 MR. OTTEN: I would like to, yes.

8 MR. BYRNE: Yes. Well, I think you

9 must.

10 MR. OTTEN: Okay.

11 MR. JOHNSON: Absolutely, absolutely.

12 MR. OTTEN: I think what we wanted to

13 do is bring a nice, big, printed version so you

14 can point to some of the major issues that you

15 might see happening as far as land use.

16 Because, as you know, and correct me

17 if I'm wrong, one of the issues that gives rise

18 to whether a project is of special merit is its

19 good land use and planning, correct?

20 MR. JOHNSON: Yes.

21 MR. OTTEN: And how would you describe

22 this project as presented by the Applicant to Mr.

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1 Byrne in terms of land use? Does it rise to one

2 of special merit?

3 MR. JOHNSON: No.

4 MR. OTTEN: Go ahead, tell me why.

5 MR. JOHNSON: Let me put this project

6 in its proper context. I don't have issue with

7 the architectural merits of this project. But

8 let me put this in a broader context.

9 We are here on this planet as

10 caretakers. The life force of our community is

11 the quality of its air, and the quality of its

12 water. The two most important substances that we

13 consume in our bodies on a daily basis, number

14 one, air, number two, water. And after that

15 food.

16 My concerns are the environmental

17 impacts of this project. It is occurring at a

18 time when, by the way, I've written several

19 articles about the impact of land development in

20 Ward 5. Why is it happening? Downtown has no

21 more major opportunities except to tear down and

22 rebuild. Ward 5 and, especially Brookland, has

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1 substantial areas of vacant land.

2 Oh, let us not forget, most recently

3 this 1,500-car parking garage built at 10th and

4 Michigan Avenue NE. All of this development is

5 going to, and is having, major impact on our

6 roadways, and the quality of our health.

7 And quality of our health speaking to

8 air quality. Not only air quality, but noise.

9 The Post wrote an article August 17th about the

10 fact that the major accesses for delivery of

11 products of services in the city, South Dakota

12 Avenue, Rhode Island Avenue, North Capitol, it

13 didn't really talk about North Capitol, South

14 Dakota. So we have major truck traffic

15 permeating our streets and, as the article said,

16 4:00 or 5 o'clock in the morning, so people can't

17 sleep.

18 And think about the toxins that these

19 massive continuous flow of traffic day in and day

20 out are having on the quality of life. Oh, by

21 the way, one of the biggest problems we're

22 having, you know, with kids in Ward 5 is asthma,

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1 not to mention sinusitis.

2 I've been paying attention, trying to

3 pay attention to the folks in this room who are

4 cleansing their nose and coughing because of

5 sinus issues and lung issues. They're becoming

6 very serious because of the massive amount of

7 development.

8 Let's take -- and we have to, as I

9 said, put McMillan in the proper context. Major

10 development is planned for Veteran's Hospital

11 directly north across the street. How do I know?

12 I have the report that was developed in 2010.

13 Major development plan for Irving and

14 Michigan right down the block, hotel, apartment

15 building, major development plan by Catholic

16 University's west campus, all of this is going to

17 have a tremendous impact on truck traffic,

18 automobile traffic, which we're already having

19 issues with.

20 Every person that I speak to in this

21 city, on a continuous basis, complains about the

22 inability to move properly during rush hour,

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1 either coming in the city or leaving the city.

2 I read a report some years ago that 70

3 percent of the jobs in DC are held by outsiders.

4 So how do they get here? By car. Why do we have

5 a 1,500-car parking garage developed at Tenth and

6 Michigan? To satisfy the needs of those who are

7 coming into Maryland, coming from Maryland to get

8 on the Metro right at Tenth and Michigan.

9 Oh, let's not forget, major

10 development plan for the Brookland Metro stop

11 which is two blocks from my office. Developments

12 have already occurred along the 12th Street

13 corridor. There used to be a period when I could

14 park in front of my building. I can't do that

15 anymore. Because there is so much traffic

16 traveling along the 12th Street corridor in the

17 morning and at night.

18 Now, let's go back. So we have

19 traffic impacted by the north Capitol corridor,

20 trucks, cars, on a continuous basis. Michigan

21 Avenue, Michigan Avenue serves as the east/west

22 access from North Capitol. Michigan takes you

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1 South Dakota, to Baltimore, to New York going

2 west all the way through the city, ultimately

3 Georgetown, veering north to North Maryland or

4 further to Virginia. Sorry, North Capitol, north

5 to the southwest access.

6 And so let me just mention what I

7 wrote in 2015, the development projects that are

8 impacting this ward which are having a major

9 negative impact on vehicular movement and the

10 quality of our health.

11 Parking garage, north side Brookland

12 Metro, Ridge Road Northeast, South Dakota already

13 a massive development. Walmart at the end of

14 South Dakota and Ridge. Mixed use, South Dakota

15 to Hamilton, Rhode Island Metro, done, Fort

16 Totten residential, done. Hotel, Michigan and

17 Irving, which I just mentioned, Michigan

18 Reservoir development, in planning now.

19 By the way, I want to emphasize, I am

20 not dealing with the architecture of that

21 project. That's not the most important element.

22 We have to look beyond the benefits of the money

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1 that this thing is generating, and the health.

2 Look at how this project and all of the traffic,

3 the noise, and the air pollution are going to

4 impact our grandchildren and our children's

5 children. That's what we need to consider.

6 I saw a movie on television some years

7 ago called Soylent Green. It dealt with

8 development. Over-development had occurred at

9 such a rate that the only time human beings would

10 have a chance to see nature is on a television

11 screen before you die. And I thought it was

12 scary at that point.

13 But if we look at the proposed

14 development projects for Ward 5 and other areas,

15 it appears as if, outside of Rock Creek Park,

16 practically every vacant piece of green land is

17 being wiped out.

18 Now, why is green, why are trees, why

19 are plants so important? Because they produce

20 two processes. One is called stomata which pulls

21 -- the leaves pull the carbon monoxide and the

22 carbon dioxide out of the air and bury it in the

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1 soil.

2 The other process is called

3 transpiration which brings water from the soil up

4 through the roots, through the trunks and leaves,

5 and releases oxygen into the air. So the more we

6 destroy the natural landscape the more we destroy

7 our health.

8 Those are of paramount importance,

9 more than the benefits of the economics. And I

10 have serious concerns about the economics. Why?

11 Because with all the development that is

12 occurring in the nation's capital, with all the

13 taxes they are supposed to be generating, why are

14 taxes overwhelming people here? Why aren't we

15 benefitting with reasonable increases?

16 I am not opposed to development. Why

17 would I be? I'm an architect. I benefit from

18 buildings being built. But when is enough

19 enough? When do we continue to destroy the

20 natural landscape, when do we continue to put

21 trucks continuously.

22 Oh, by the way, I looked at that site.

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1 But for those of you are going to cross examine

2 me and tell me you've got 700 trees, 700 trees

3 will not grow overnight, 10, 15, 20 years. And

4 so while you're developing, all the toxins are

5 being released into the air, even when you plant.

6 And so let me go back to finishing

7 this, 13th and Rhode Island, major development.

8 One, land's been vacant for years, used to be a

9 seven-story building there, it's coming back.

10 Across the street, Brookland Manor, almost a

11 billion dollar project. Rhode Island Avenue

12 Metro I just mentioned. No, I'm sorry. Rhode

13 Island and Monroe. Yes, development there.

14 Colonel Brooks, oh, let's not forget

15 Colonel Brooks. Why did Colonel Brooks fail and

16 did not go forward? Colonel Brooks did not go

17 forward because the community opposed the scale,

18 and the magnitude, and the traffic, and the rats

19 that are going to be generated when they start

20 digging that hole. And the same think is going

21 to happen at McMillan.

22 But the rats coming out of that hole

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1 when they start to dig, we already have a rats

2 problem. It is identified periodically in the

3 Washington Post and sometimes on television.

4 So these environmental impacts that

5 are going to affect that neighborhood directly to

6 the east and to the south, not to mention the

7 hospitals directly across who are already

8 involved in their expansion programs.

9 Oh, by the way, why are we

10 experiencing so much expansion with medical

11 facilities? Because the health of the public is

12 not improving. We have got, oh, heart disease

13 rising, heart disease rising, saying it again for

14 emphasis, and respiratory problems, because of

15 the quality of air that we are losing. And as

16 that article stated, on the 17th of August, we

17 got real problems, folks.

18 By the way, look at another project

19 that I didn't mention, Lowes, and Costco at South

20 Dakota which was what, totally massive amounts

21 of trees, now two massive buildings, and a

22 parking lot, and a couple of minor trees,

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1 impacting air quality for all those townhouses

2 that have been recently developed which also

3 wiped out all the trees. When is enough enough?

4 When do we reduce the scale of some of these

5 developments.

6 MR. OTTEN: Mr. Johnson, could I -- so

7 it sounds like part of what would be a beneficial

8 project here is one made of land use that

9 considers the cumulative impacts of the various

10 projects as you highlighted on the map and in

11 this list.

12 MR. JOHNSON: Absolutely.

13 MR. OTTEN: Is that fair to say?

14 MR. JOHNSON: Absolutely. As a matter

15 of fact, I've seen a couple of reports, even the

16 transportation reports. Transportation report

17 deals with the regional impact. I live here.

18 And other people live here and work here. So

19 we're concerned not just of the regional impacts

20 but the impacts to our lives on a daily basis.

21 I just had some developer buy the two

22 buildings next door to me, now wants to put three

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1 stories -- so I've had to complain -- and then

2 applied for a permit to do minor demo, and then

3 did major -- demoed everything inside the

4 building.

5 There's so much cheating, and lying,

6 and lack of ethics going on in the marketplace

7 everywhere. So these people did major

8 construction and, I'm sorry, major demolition in

9 this building with the intention of putting three

10 stories without even letting anybody know. So

11 we've had to put a stop work order, get the city

12 to put a stop work order.

13 MR. OTTEN: So let me understand this.

14 MR. JOHNSON: Yes.

15 MR. OTTEN: So in your analysis of

16 this case, in terms of the land use, the

17 evaluation on the two things that you have just

18 testified to as being most important to humanity

19 --

20 MR. JOHNSON: Traffic and air quality.

21 MR. OTTEN: -- air and water --

22 MR. JOHNSON: And water.

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1 MR. OTTEN: -- is what I understood.

2 MR. JOHNSON: Can I interrupt you a

3 second? Let me say one other thing about water.

4 DC, for the record, DC has a preponderance of

5 major streams running everywhere. And as more

6 and more developments occur, that water is being

7 displaced.

8 And so more and more residences in

9 that area, meaning the Ward 5, Brookland,

10 Woodbridge area, are experiencing water problems

11 in their basements.

12 We get involved in some residential

13 projects. How do I know, an example of one of my

14 projects, you develop a 42,000 square foot,

15 three-story school at 8th and Varnum, down the

16 block from Providence Hospital which was a former

17 Catholic University dormitory.

18 Apparently, there was a water problem

19 years before I got involved in this project. And

20 one of the -- it's a U-shaped building, and in

21 the south quadrant was a manhole with standing

22 water that had probably been standing there and

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1 moving for the last 20 years.

2 The building had so many water

3 problems that I convinced the client to provide a

4 ring of drainage around the building to dump into

5 the street. The same thing occurred at my site

6 at North Capitol, and New York Avenue, and in

7 other areas of the city.

8 So the more -- oh, I got a client

9 that's a church not far from that high-rise

10 apartment building that straddles the New Jersey

11 Avenue tunnel. When the building directly behind

12 them got built, they started having water

13 problems. They called me to do an assessment as

14 a planner and an architect.

15 I was able to assess that when they

16 built his building and put three levels of

17 parking in the ground, they didn't track the

18 water flow. So it went around the building and

19 went into their basement.

20 So this is occurring more and more.

21 So yes, this site needs more attention to its

22 overall environmental impact to areas around it,

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1 not just this is a great project existing as an

2 island. This is not an island. It has major

3 impacts. It's almost in the center of the city

4 at Northwest Texas, North Capitol, and the

5 east/west access, Michigan Avenue.

6 Go ahead.

7 MR. OTTEN: Mr. Johnson, with all your

8 experience, you covered a lot of ground in what

9 you just testified. So I just want to tighten it

10 up to some of the key features of this project.

11 You just spoke to the water issues, so

12 when you build projects how that might affect the

13 underground watersheds. Are you aware, and the

14 Applicant affirmed this under testimony, that the

15 Tiber Creek flows under this site?

16 MR. JOHNSON: Yes, I am.

17 MR. OTTEN: And so construction on the

18 site would affect that waterway. Is that fair to

19 say?

20 MR. JOHNSON: Could be. I don't know.

21 MR. OTTEN: And others, right?

22 MR. JOHNSON: Could be, yes.

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1 MR. OTTEN: But the lack of analysis

2 on that is apparent.

3 MR. JOHNSON: Yes, could be.

4 MR. OTTEN: And the --

5 MR. JOHNSON: And not only affecting

6 the water below, but it's going to affect how

7 water flows and impacts the adjacent areas.

8 MR. OTTEN: Right. And that's the

9 most important thing, right?

10 MR. JOHNSON: That's very important.

11 MR. OTTEN: But you mentioned

12 regional, they did regional impact studies. I

13 presume you're talking about the air and water

14 quality, the DDOE report that was --

15 MR. JOHNSON: Right.

16 MR. OTTEN: -- put on the record.

17 MR. JOHNSON: Right.

18 MR. OTTEN: Okay. So regionally, the

19 impacts may not seem as big as an analysis or an

20 evaluation of the local land use impact?

21 MR. JOHNSON: Right.

22 MR. OTTEN: For the surrounding area?

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1 MR. JOHNSON: Well, one thing you want

2 to consider regionally, there are a lot of open

3 areas once you leave the borders of the nation's

4 capital, beyond urban areas. There are a lot of

5 open areas. So you've got trees, and grass, and

6 plants to absorb a lot of the toxins that these

7 cars and commercial service vehicles are

8 producing.

9 MR. OTTEN: Right.

10 MR. JOHNSON: And --

11 MR. OTTEN: So it's fair to say

12 though, if you were to -- the 25,000 additional

13 vehicle trips expected on Saturdays alone, that

14 would have more of an impact on the local

15 community than regional areas considered under

16 regional metrics, right?

17 MR. JOHNSON: Absolutely.

18 MR. OTTEN: And you did see that,

19 right, in the Grove Slade, March 2014 exhibit,

20 right, that shows just on Saturdays alone they're

21 expecting 25,000 vehicular trip generations,

22 correct?

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1 MR. JOHNSON: Right.

2 MR. OTTEN: And that's --

3 MR. JOHNSON: What the report -- sorry

4 to interrupt.

5 MR. OTTEN: Yes.

6 MR. JOHNSON: What the report isn't

7 addressing is the fact that we've already had a

8 lot of new developments occur since the

9 development of that report.

10 As a matter of fact, because I

11 traverse Michigan Avenue on a frequent basis, my

12 office is on 12th and Newton, two blocks east of

13 the Metro stop, I had experienced such traffic

14 congestion that, recently, to come up North

15 Capitol, turn right, and traverse Michigan to my

16 office, took almost 15 minutes to get to Irving,

17 took almost 15 minutes. Why? Here's a major

18 issue for traffic along that corridor. We have -

19 -

20 MR. OTTEN: We could show it on the

21 map right now.

22 MR. JOHNSON: Oh, no. I don't need

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1 to. These folks know. They know.

2 (Laughter)

3 MR. JOHNSON: They know. I don't need

4 to get up and show you where Michigan Avenue

5 traverses -- intersects Irving. We have

6 Children's National Medical Center, we have

7 Hospital Center, we have Veterans. And they go

8 to work in the morning, thousands of people, they

9 leave in the afternoon. So we have people

10 converging on that intersection at Michigan and

11 Irving, those who are going home along Michigan.

12 And the traffic is so bad that the

13 lights can't control the flow. They have to come

14 into Michigan from Irving and, you know, traffic

15 coming from North. Because that Irving Street

16 access carries you all the way to Connecticut

17 Avenue and beyond. Traffic comes into Michigan,

18 then you have a light there. Then you have

19 another light at Harewood Road. So you've got

20 northwest traffic there, north/south traffic.

21 But the point is, the lights can never

22 be synchronized sufficiently to control the flow

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1 of traffic coming into Michigan and Irving and

2 traffic going east along Michigan Avenue.

3 And the fact that we have so much new

4 development planned for Veterans, and the

5 McMillan site, it's going to be a nightmare.

6 Matter of fact, it's already a nightmare, trying

7 to get along these corridors during rush hour in

8 the morning and evening. It's only going to be

9 exacerbated with new development, not to mention

10 the quality of air.

11 MR. OTTEN: That's very important. To

12 that point though, for Mr. Byrne's analysis here,

13 one of the things that's being touted as a

14 benefit is the, I guess, although we don't

15 believe it can be, but the mitigation of the pure

16 volume here. We have a pure volume number, as

17 attested to by the Applicant's expert, of 25,000

18 vehicle trips just on Saturday alone.

19 You're saying that an additional half

20 lane added, let's say, at First and Michigan, or

21 a few extra lights that are timed, doesn't do

22 anything about the volume of traffic. Is that

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1 right?

2 MR. JOHNSON: The volume will increase

3 based upon the number of new development, massive

4 new development projects that are allowed to be

5 constructed in the area and elsewhere.

6 Because remember, Michigan Avenue is

7 serving not only the area between the Hospital

8 Center on First Street and Catholic University.

9 But it's also serving all of those projects that

10 are being developed along that corridor that is

11 carrying us west. So that traffic is flowing

12 along Michigan, that traffic is flowing along

13 Irving.

14 Oh, let's not forget, traffic flowing

15 along Rhode Island Avenue and the developments

16 that are planned for Rhode Island Avenue. And I

17 mentioned two of the major ones, Brookland Manor,

18 massive traffic, 13th and Rhode Island, massive

19 traffic, and others.

20 MR. OTTEN: And so what -- it's the

21 volume of traffic. I think you mentioned Ward 5

22 already has a problem with its air quality. Are

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1 you aware that the children of Ward 5 have an

2 acute issue with that?

3 MR. JOHNSON: I just mentioned that.

4 MR. OTTEN: Okay.

5 MR. JOHNSON: Yes, asthma.

6 MR. OTTEN: Right.

7 MR. JOHNSON: Sinusitis.

8 MR. OTTEN: Right.

9 MR. JOHNSON: And more of us are going

10 to develop the same issues, same problems, as

11 more and more major development occurs in our

12 urban areas, as we destroy the green.

13 MR. OTTEN: Right.

14 MR. JOHNSON: Which is here, God gave

15 us this to protect the quality of our health.

16 And we're destroying it slowly everywhere.

17 MR. OTTEN: So let me ask you, in

18 terms of the Applicant's master plan, which is in

19 their printed July 14th hearing booklet, they are

20 showing a plan that has some green space.

21 They're claiming that as one of the benefits.

22 What's your take on the green space they're

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1 providing versus what's there now?

2 MR. JOHNSON: Well, I think providing

3 green scape, I'm sorry, green space is a

4 contribution. Providing 700 trees is a

5 contribution. By the way, as I mentioned

6 earlier, it's going to take five years for these

7 700 trees to be developed.

8 The other concern I have, if you want

9 to address the architecture -- not the

10 architecture, the urban design impacts, is that

11 here we have this massive, high-rise, mid-rise,

12 and low-rise development affecting the folks to

13 the south, air quality, sun quality, traffic

14 quality, affecting east, south, because there is

15 where your residents are. And the impact will

16 extend beyond.

17 And matter of fact, let me speak

18 specifically about this development. This is a

19 couple of billion dollars. It's not going to

20 happen overnight. It's going on for years. So

21 the amount of trucks, commercial -- construction

22 vehicles servicing this site is going to have a

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1 tremendous impact on the folks who live in the

2 path where the traffic has to travel, not only --

3 MR. OTTEN: So they put a, during the

4 zoning hearings, which is not necessarily

5 applicable here, but it speaks to the land usage,

6 they put a construction management plan on the

7 record. In your review of that or understanding

8 of that, do you understand it taking into account

9 some of the acute issues of construction over

10 many, many years, such as vibrations.

11 MR. JOHNSON: So I'm not sure, but I

12 think when we get into the construction plan, I

13 think that's kind of outside my field anyway.

14 Because it'd be a Zoning Commission issue.

15 MR. BYRNE: Yes, it really is.

16 MR. OTTEN: Okay, so then let me ask

17 you this. Because, Mr. Johnson, one of the

18 things that is before Mr. Byrne is the

19 alternatives and possibly weighing alternatives.

20 Is it fair to say that an alternative plan, if

21 there's less demolition, if it's smaller in size,

22 would therefore bring about less impact?

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1 MR. JOHNSON: Yes, more open space,

2 less development. As a matter of fact, let me

3 mention something else, going back to that

4 argument.

5 Interesting the Washington Post came

6 out with that article on the 17th about truck

7 traffic, no accident. It was meant to be

8 revealed to the public. So we've had our local

9 Councilman, Kenyan McDuffie, make comments about,

10 well, we need to look at doing something.

11 Oh, my God, what do you mean look at

12 doing something? This traffic, this massive

13 noise, vibration -- Oh, by the way, vibrations

14 from these heavy continuous flow of trucks has an

15 impact on the foundations of these buildings,

16 vibration loads, constantly, constantly. Folks

17 are going to start to get leaks in the

18 foundation.

19 Hitting these streets with these

20 thousands of pounds of steel being carried by

21 these trucks, and concrete being carried by these

22 trucks, and other construction materials which

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1 must traverse these streets to support McMillan,

2 it is going to be -- it is going to have a

3 tremendous impact on the surrounding area in a

4 major way.

5 And I keep saying you can't look at

6 this in isolation. You've got to look at -- I

7 never finished my list. Oh, yes, I did. All

8 these projects, everywhere, everywhere, impacting

9 air quality, impacting the road system, impacting

10 our health, the noise, the water issues, and on,

11 and on, and on, noise, water, air quality.

12 MR. OTTEN: So in terms of Mr. Byrne's

13 balancing of the special merit of this project,

14 it's fair to say that your position is that the

15 proffered positive aspects of this project must

16 be considered against the negative impacts. And

17 there should be a cumulative understanding of

18 those negative impacts of this project in this

19 corridor --

20 MR. JOHNSON: That's fair, right.

21 MR. OTTEN: Is that right?

22 MR. JOHNSON: Absolutely. It cannot -

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1 - and I have to emphasize, if it's going -- look,

2 wait a minute, our government's responsibility is

3 to exercise its fiduciary responsibility to

4 protect those who live and work here now and

5 provide access for newcomers.

6 But the number one priority and

7 obligation is to protect the health and welfare.

8 That's why we have zoning regulations, protect

9 the health and welfare of the folks that live and

10 work here now. And we've got serious issues with

11 that, with the massive amount of development.

12 MR. OTTEN: And so you're saying

13 there's no District law or principle that says

14 the bottom line of the developers and financial

15 incentives is paramount to impact analysis and

16 human impact?

17 MR. JOHNSON: No. Now, speaking about

18 financial analysis, let me address that. There's

19 only one major source of economic development in

20 America. And historically land has been fought

21 over, I mean, battles have been fought over land

22 everywhere in the world.

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1 We have land development which

2 generates all the major jobs, all the major

3 contracts. However, when looking at the city's

4 last year audit report which addresses the

5 hundreds of millions of dollars that are being

6 provided to develop -- subsidizing developers, it

7 also says by law they are required to spend 35

8 percent with small business.

9 The report goes on to say the District

10 isn't monitoring these jobs. And during the same

11 time, I'm having a meeting with the director of

12 Small Business back in September, she says -- I

13 said small businesses are suffering, and

14 especially minority businesses are suffering.

15 They're not getting any substantive business.

16 Her response is, "Yes, I know."

17 Our program is open to everybody. So

18 we have firms coming from everywhere in America

19 setting up businesses in the District, qualifying

20 themselves as small business. And it's hurting

21 us that live here.

22 So with all this massive development

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1 that is ongoing on a continuous basis, the city's

2 own records identify the fact that local

3 businesses are not benefitting to the degree that

4 they should. I'm not saying not at all, but to

5 the degree that they should.

6 MR. OTTEN: And you're also aware of

7 the auditor's report speaking of the promises

8 made in these projects and how those promises

9 largely stay unfulfilled?

10 MR. JOHNSON: Yes, another prime

11 example, the new hotel in Adams-Morgan. All they

12 had to do for obligation for all the money the

13 city gave them was hire 100 people. They didn't

14 even do that. They didn't even do that.

15 So we've got issues with not being

16 taken care of, and we're giving too much credit

17 to developments which support folks outside.

18 I'm not interested in living here.

19 And folks that live across the street in our

20 neighborhood and neighborhood's beyond, they own

21 their homes. And a lot of them are being forced

22 out because as real estate values improve -- no,

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1 as real estate is being developed, the land

2 adjacent to these properties increase in value.

3 And so some of these residents are

4 being forced out because of the fact that they

5 can't afford the increased taxes. And with all

6 this tax increase, why are people having such

7 problems with their taxes when we're supposed to

8 be drawing so much tax to satisfy the needs of

9 the city now?

10 But everywhere we turn, DCRA, there

11 are so many fees associated with DCRA. Can't

12 raise the taxes, it's not just slowing down

13 traffic. It's a tax, the parking meters are

14 taxed, getting through DCRA.

15 Oh, let us not forget all of the

16 development in the streets? This is very

17 important about the impact of McMillan. Why are

18 we having so much digging in the streets in our

19 community? Because the utilities in the ground

20 are not of sufficient nature, quality, size, to

21 support these massive developments. So

22 therefore, now they're digging everywhere.

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1 And who's paying for this, probably in

2 a disproportionate fee, those of us who live and

3 work in this area.

4 MR. OTTEN: So in terms of Mr.

5 Byrne's, again, balancing the benefits here, I

6 mean, would it be fair to say that he should also

7 be considering, as much as tax generation is

8 being claimed as a benefit, the tax costs on the

9 surrounding area? And DC residents generally

10 should also be considered.

11 MR. JOHNSON: Absolutely.

12 MR. OTTEN: And what are these costs

13 for infrastructure, new infrastructure, new

14 police, these sort of costs? These are tax

15 costs?

16 MR. JOHNSON: What --

17 MR. OTTEN: Additional tax costs.

18 MR. JOHNSON: Let me mention this.

19 Developers feel that we're generating a lot of

20 taxes which support infrastructure costs in other

21 areas. Here are some of the costs continuously

22 associated with development projects that will

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1 move forever, street improvements -- no, first of

2 all, new utilities that we have to pay for,

3 disproportionately, street improvements, police

4 protection, fire protection, ambulance service,

5 snow removal, water removal.

6 I am a native, and I have a presence

7 in Brookland for many many years, I'm listening

8 to the police complain all the time about being

9 over taxed. Because now, their resources, even

10 though they're getting new troops, their

11 resources are being stretched to provide support

12 for these massive new developments. We've got

13 one down on South Dakota and, what is it,

14 Hamilton, that are made for families.

15 I'd like to know for the record, and I

16 ask that someone put on the record how much of

17 that money got spent with local business in this

18 community, not downtown, not across town, not

19 Maryland, or Virginia. That's a huge problem.

20 All these projects being developed and local

21 businesses, local residents are not benefitting

22 from any degree.

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1 MR. BYRNE: All right, Mr. Johnson, we

2 really need to focus. I understand the fact that

3 you -- and you're making a very strong point

4 about the need to consider the planning questions

5 in the context of the surrounding -- this local

6 community and the city as a whole.

7 MR. JOHNSON: Yes.

8 MR. BYRNE: But I really do want to

9 hear about this project at this point and not

10 about other projects where there were problems.

11 MR. JOHNSON: Okay.

12 MR. OTTEN: Okay. So let me, well, I

13 think what I'll do is I'll ask questions to kind

14 of keep this a little more acute to this project

15 if that's okay.

16 MR. JOHNSON: Sure.

17 MR. OTTEN: So, you know, as you

18 speak, I'm pulling in some certain points that

19 you're hammering on, that are important. I guess

20 you mentioned local businesses. There is nothing

21 on the record to date in any analysis of what

22 local businesses are in the area around the park

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1 and how they may be affected by this project. As

2 a land use planner, is that an appropriate way to

3 proceed in planning?

4 MR. JOHNSON: No.

5 MR. OTTEN: How about the local

6 understanding of vulnerability to gentrification?

7 In other words, in the surrounding area, the

8 residents who live in the surrounding area, there

9 is no analysis of those folks and how they may be

10 more vulnerable to gentrification. Can that be

11 considered good land use planning?

12 MR. JOHNSON: Well, the focus has been

13 on the limited number of businesses in the

14 adjacent area.

15 MR. OTTEN: But I'm talking about

16 residents now.

17 MR. JOHNSON: Yes, residences. The

18 economic impact will extend exponentially over

19 the District of Columbia.

20 MR. OTTEN: But what I'm asking you

21 about, to my knowledge, and I'm asking you as an

22 expert, there has not been a record, anything on

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1 the record provided that shows local impacts of

2 gentrification in the --

3 MR. JOHNSON: No, no.

4 MR. OTTEN: Is that good land use

5 planning?

6 MR. JOHNSON: I don't know that. As a

7 matter of fact, I haven't been questioned by any

8 of the developers, since I'm head of the Greater

9 Brookland Business Association, about the impact

10 this could potentially, positively have on the

11 businesses in the Greater Brookland area.

12 MR. OTTEN: Could it also raise the

13 cost of leases and that sort of stuff?

14 MR. JOHNSON: Absolutely.

15 MR. OTTEN: And so that could be a

16 negative.

17 MR. JOHNSON: Because the cost to buy

18 or to lease is going to be predicated upon the

19 construction cost when these projects are

20 completed. It's going --

21 MR. OTTEN: The rents?

22 MR. JOHNSON: The rents and leases.

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1 It's going to drive up cost in adjacent areas or

2 nearby areas. I shouldn't say just -- this

3 project is not just going to impact the adjacent

4 neighborhood. It's going to have an impact, a

5 ripple impact, throughout that northeast area.

6 MR. OTTEN: I understand that. But we

7 are, well, we'll get into that in the

8 presentation. I also want to affirm that you saw

9 the Mayor's Climate Ready DC planning documents

10 from 2015 which shows McMillan smack dab in the

11 middle of an internal flood plain. Have you seen

12 that?

13 MR. JOHNSON: Yes, I've seen it.

14 MR. OTTEN: And how does that --

15 you've talked about water earlier, and the water

16 impacts. Is that a major land use issue that

17 should be reviewed in this matter?

18 MR. JOHNSON: I think it should be.

19 And the reason I believe it should be, if it's in

20 an area where we have a preponderance of the low

21 grade water, we really don't know the extent.

22 And we really won't determine the extent of water

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1 traversing the low ground until the digging

2 occurs. And because of the magnitude of the --

3 Can you hold that drawing up again? No, the site

4 plan.

5 MR. OTTEN: This is the 2000 --

6 MR. JOHNSON: The most recent site

7 plan. This site plan appears as if it's going to

8 change 100 percent of the site. It's going to

9 have an impact with building-related structures

10 on probably 70 percent of the site. And as a

11 consequence, there's going to be a lot of

12 digging. And it's going --

13 MR. OTTEN: You're aware that --

14 MR. JOHNSON: -- to impact the water

15 table. I don't know what the long term effects

16 are.

17 MR. OTTEN: Well, you said that they

18 could drill down now and get some soil borings

19 and understand what might be under there?

20 MR. JOHNSON: But even the soil

21 borings may not necessarily give a clear picture

22 of all the water problems in the ground. Because

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1 the soil borings are only three and four inches,

2 three inch holes.

3 MR. OTTEN: Okay. So then how did --

4 (Simultaneous speaking)

5 MR. JOHNSON: So they'll get us some.

6 MR. OTTEN: To the issue of the water

7 that we are -- McMillan is at -- it slopes down,

8 does it not, north of there, the Soldier's Home,

9 it slopes down --

10 MR. JOHNSON: North to south.

11 MR. OTTEN: Right. Which gives rise

12 to the views from, let's say, Lincoln's Cottage

13 down to the Capitol. And that sloping issue is

14 what has given rise to this internal flood map,

15 is what I'm presuming. Is that fair to say?

16 MR. JOHNSON: Well, you know --

17 (Simultaneous speaking)

18 MR. JOHNSON: That analysis is

19 addressing McMillan.

20 MR. OTTEN: This is city --

21 MR. JOHNSON: Yes, I understand. But

22 your comments are, I should say your comments are

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1 addressing McMillan.

2 MR. OTTEN: Right.

3 MR. JOHNSON: But we have to -- as I

4 said initially, we have to put our comments in

5 the context of how that area is being impacted by

6 proposed development to the north and to the

7 east. So it doesn't exist -- so the water issues

8 are going to be probably tremendous.

9 MR. OTTEN: Right. So I asked you

10 earlier that a smaller, less dense project would

11 mean less impacts over --

12 MR. JOHNSON: Absolutely. Less

13 building, less disturbing of the natural

14 landscape.

15 MR. OTTEN: And you saw the 2002, I

16 have the report up on the screen now, this is the

17 2002, February of 2002 Office of Planning report

18 regarding McMillan.

19 MR. JOHNSON: Which recommends 50

20 percent or more of this site be left open for a

21 green area.

22 MR. OTTEN: Correct. And that report

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1 also says the remainder of the site being

2 developed with low and moderate intensity uses,

3 correct.

4 MR. JOHNSON: Yes.

5 MR. OTTEN: And so this master plan,

6 so from 2002 to 2006, we don't know what

7 happened. But somewhere along the way, it jumped

8 to this master plan which has stayed largely the

9 same up to the current master plan now before Mr.

10 Byrnes.

11 MR. JOHNSON: Yes.

12 MR. OTTEN: This project, is it fair

13 to say, represents high density and medium

14 density development versus what was suggested in

15 2002 as low or moderate density?

16 MR. JOHNSON: There's no comparison.

17 MR. OTTEN: There's no --

18 MR. JOHNSON: The current proposal

19 represents substantial development.

20 MR. OTTEN: And there's far less open

21 green space than 50 percent, correct?

22 MR. JOHNSON: Yes.

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1 MR. OTTEN: That's what -- I wanted to

2 get those key pieces on the record. The

3 hospitals, you mentioned hospitals and the

4 equity, not the equity, but you mentioned the

5 location of all the hospitals in the area. Is it

6 fair to say that Ward 5 in this area is currently

7 served robustly with medical service centers with

8 all of these complexes in the area?

9 MR. JOHNSON: I'd say the hospitals,

10 including Providence, serves the population here

11 but also elsewhere. Hospital Center and

12 obviously Veterans are serving people across the

13 metropolitan area and the country, for that

14 matter. So you have a certain influx of traffic

15 to the hospital because the health of the public

16 is not improving.

17 MR. OTTEN: And is it fair to say

18 that, with the additional volume of traffic

19 proposed in this case, that those emergency

20 vehicles would have a more difficult time getting

21 to those hospitals?

22 MR. JOHNSON: I would think so, yes.

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1 MR. OTTEN: Okay.

2 MR. JOHNSON: Yes, not I would think

3 so. Yes, obviously if you -- let me come back to

4 this. And I've experienced this, because I'm

5 traversing these streets on a consistent basis.

6 Emergency vehicles, traffic in both directions,

7 and you've got a blockage.

8 So you've had a couple of folks in

9 certain situations, which I've seen with my own

10 eyes, cars and trucks moving onto the sidewalk to

11 move over so a police brigade or an ambulance can

12 get through. And that's the traffic that is

13 being generated now, not to mention the traffic

14 of the future.

15 And, oh, Metro is not the only --

16 Metro is not solving all our problems. We are

17 having problems with Metro.

18 And, oh, as the climate -- let's look

19 at another issue. Climate is changing,

20 obviously. Floods, fires, tornadoes, and DC has

21 had an earthquake. And beyond that, we're seeing

22 rainfalls like we have never seen except in the

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1 past, probably five, six, seven, eight years.

2 In the past, we experienced rain for a

3 few hours and it stopped. Maybe it rained all

4 day and it stopped. Now it's raining days, and

5 days, and days. So we're having more flooding in

6 basements now. We're having -- even DCRA has

7 required that sump pumps be provided in basements

8 now. We're having so many problems with water.

9 And so as the site is developed, who

10 knows? Only God knows the impact of the water

11 that exists below this site on surrounding areas

12 and the impact of other major developments on

13 water in the ground. And I mentioned Veterans

14 Hospital, hotel at Irving and Michigan, major

15 apartment building, Catholic University West

16 Campus, Soldier's Home, we don't know.

17 MR. OTTEN: Well, you're a land use

18 planner --

19 MR. JOHNSON: But I got to --

20 MR. OTTEN: Okay, sorry.

21 MR. JOHNSON: -- finish this point. I

22 have emphasize, we are here as caretakers for our

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1 planet and our city. And the government has a

2 fiduciary responsibility to protect the interest

3 and welfare of the folks that are here and

4 provide opportunity for new folks to come. But

5 when is massive development enough? When is

6 enough enough?

7 MR. OTTEN: Just so I understand,

8 because I'm a little bit confused, as a land use

9 planner, and as somebody experienced with this,

10 cannot planners determine a sense of the

11 underground water channels, and waterways, and

12 potential, just to understand the potential of

13 displacement of water if a project is built, such

14 as in this case with a 3,000-car parking lot --

15 MR. JOHNSON: Yes.

16 MR. OTTEN: -- parking garage?

17 MR. JOHNSON: A lot of technology

18 helps us to identify issues.

19 MR. OTTEN: Seismic technology?

20 MR. JOHNSON: Yes, water technology,

21 seismic and otherwise. And I'm aware the city's

22 putting in a new water system because we've had

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1 so much flooding at First and Rhode Island

2 Avenue.

3 MR. OTTEN: Okay.

4 MR. JOHNSON: But that's not the

5 saving grace. Because water exists across the

6 city.

7 MR. OTTEN: But it will good to

8 understand where it is.

9 MR. JOHNSON: Yes, yes. Yes, it's

10 going to be good to understand. But there's no

11 guarantee that, as we complete our additions

12 studies on the site, and studies have not been

13 done to address water impacts in other areas that

14 will impact this site and other areas -- They

15 haven't been done. And so we really don't know.

16 MR. OTTEN: Last question, Mr.

17 Johnson.

18 MR. JOHNSON: Yes.

19 MR. OTTEN: As far as evaluating

20 impacts, land use impacts, if you do not do the

21 evaluations, can you come to mitigation

22 conditions? If you don't understand the impacts,

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1 how do you mitigate them?

2 MR. JOHNSON: I can't answer that, how

3 we mitigate it. Mankind does not have all the

4 answers. If he did, we wouldn't have leaks in

5 the Metro tunnels, we wouldn't have the crime in

6 the Metro tunnels that we're having, we wouldn't

7 have to fire the personnel in the Metro tunnels,

8 and the bus traffic. We don't have all the

9 answers. We're not --

10 MR. OTTEN: But the issues you just

11 raised there, those contend with tax costs. That

12 has to do with funding.

13 MR. JOHNSON: Well, yes, they have to

14 do with funding, but it also has to do with the

15 number of people who are utilizing these

16 services. It impacts the tax base, it impacts

17 the services, it impact the number of trips which

18 impacts the vibrations, the noise.

19 And I'm not just talking about the

20 subsurface trains which travel below grade and

21 above grade, but also the buses that traverse the

22 streets on a continuous basis, the impact loads,

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1 impact loads, impact loads.

2 What do we design bridges for, as

3 engineers? I'm not an engineer. Engineers have

4 to design to impact loads, because you're only

5 there for a few moments and across, boom, boom,

6 big trucks, big busses. Oh, not to mention the

7 tour buses.

8 So the more we develop sites like

9 McMillan, the more we have the impact loads of

10 tour buses. And we don't know the impact, we

11 don't know the impact it's going to propose on

12 adjacent residential areas.

13 I didn't even mention the residential

14 area at the northeast of Michigan Avenue and

15 North Capitol, tremendous apartments there.

16 Fortunately, it was properly screened, landscape

17 screened, so you don't really notice that. But

18 it's going to have an impact on the people's

19 lives there. And those are folks in close

20 proximity to the site.

21 MR. OTTEN: I think that's all I have.

22 Now, I think what I would like to ask, do you

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1 have to leave soon? Because if so, I -- how much

2 time do you have?

3 MR. JOHNSON: Well, I was planning to

4 be here at 12:00. And I made arrangements to

5 change my commitments so I could be here early.

6 I really dropped everything. I did make a few

7 phone calls and ran down here.

8 MR. OTTEN: Thank you.

9 MR. JOHNSON: So if I'm going to be

10 cross examined, can it be done now?

11 MR. OTTEN: Well, I would ask Mr.

12 Byrne. I mean, I'm not done with my general

13 presentation, but I think for the purposes of

14 cross examine, maybe we can do that now.

15 MR. BYRNE: All right. Ms. Browne,

16 does that work for you?

17 MS. BROWN: Yes, that's absolutely

18 fine. And I have no questions.

19 MR. BYRNE: Okay

20 MR. OTTEN: Okay.

21 MR. BYRNE: Well, thank you, Mr.

22 Johnson.

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1 MR. JOHNSON: Sir, can I make just one

2 other statement? Most people in this city don't

3 know that my passion is nutritional and spiritual

4 healing. My theory is simple. God put on the

5 planet everything we need. I give health advice

6 to a lot of physicians and everyday people.

7 Because of my knowledge of health, and

8 healing, and giving health advice to a lot of

9 physicians, I did a presentation on healing

10 before the AIA September 12th, 2012. They

11 wouldn't let me talk about herbs, and vitamins,

12 and foods, but only the impact of architectural

13 landscape, architectural features to improve the

14 quality of health.

15 That document that I left for here is

16 more important today than it was in 2012. We

17 have to pay more attention to the health of the

18 environment. I've got more people coming to me

19 we with asthma, sinusitis, heart, cancer, all of

20 these issues because of air quality, air quality

21 in the existing buildings, one guy, cancer, lung

22 cancer from working in a school that didn't have

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1 proper air flow.

2 So as we're developing, here are my

3 recommendations before I walk away. My

4 recommendation, number one, that the density is -

5 - if this project is going to be developed, that

6 the density be reduced, that more open space and

7 more trees be planted. Matter of fact, the

8 landscape element ought to be done first to

9 cleanse the air and to provide some support.

10 Why do we go to nature, we do we go to

11 the beach and to the pool, because it's soothing.

12 It's water -- we need a water fountain,

13 waterfall. In Las Vegas, that singing water

14 fountain along the avenue brings thousands, and

15 thousands of people every night, because we have

16 this affinity to water. It is the most important

17 substance we put in our bodies after oxygen.

18 We don't know what we're doing to the

19 water table. I turn on my water and it smells

20 like chlorine. I turn on my -- and other people

21 tell me the same thing. I turn on the water, and

22 it comes out sudsy.

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1 So yes, we're making changes. How

2 much can we tolerate the chemicals placed in our

3 water to purify our water? And the more building

4 masses we have, what do we have? McMillan

5 Center. There's two million square feet of new

6 development which means cleaning products for

7 buildings, floors, the toxins from leaking cars,

8 and leaking trucks, and leaking cars, cleaning

9 that.

10 All of this is going to have a

11 tremendous impact on the quality of our health as

12 we move forward. We need to think more about our

13 grandchildren, and their children to come. We

14 need to reduce the density, we need more open

15 space, we need more landscape elements here.

16 The only area where we have major open

17 space and landscape features is Rock Creek Park

18 once we get out of this area, and a little park

19 in our area which is all trees at 14th and

20 Northeast.

21 And oh, by the way, major open space

22 at Taylor, South Dakota, and 14th Street, this is

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1 about to go away, acres and acres of beautiful

2 open space owned by Howard University. This is

3 about to go away.

4 So practically all the major projects

5 -- I've said it, there's just so much development

6 going on everywhere. And the interest seems to

7 be profits more than the quality of life for the

8 people here, even the quality of life that are

9 coming, because the cost of moving into DC is so

10 high.

11 The condo that's just developed maybe

12 100 feet from my front door, $700,000 for an

13 apartment. That used to be a single family house

14 and an old gas station that's been closed for

15 probably 25 years, so then open space.

16 So again, we've got to pay attention

17 to the impact to noise, to vibration, to traffic

18 flow, which is already a nightmare, to

19 vibrations, to the health of our population,

20 which is also aging.

21 MR. BYRNE: Thank you, Mr. Johnson.

22 MR. JOHNSON: Thank you all, thank you

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1 all. And I pray that you make --

2 MR. OTTEN: For the record, I want to

3 make sure we get this document in. This is where

4 you list all the various projects --

5 MR. JOHNSON: You have a copy of --

6 MR. OTTEN: -- that's reflected in the

7 maps.

8 MR. JOHNSON: You need to bring it

9 back, bring me my -- this is my only copy for the

10 record.

11 MR. OTTEN: This is your only copy?

12 MR. JOHNSON: So if you're going to

13 make a copy --

14 MR. BYRNE: You know you can submit

15 that afterwards, after your closing statement.

16 MR. JOHNSON: What you need to submit

17 is "When is Enough Enough," which I wrote March

18 14th, 2011. And the analysis that -- this four-

19 page analysis that I wrote in 2011 is having a

20 more powerful effect even today.

21 And I go back to that article in the

22 Post. You can't get rid of the commercial

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1 service vehicles. If South Dakota Avenue is the

2 access, they're going keep coming. And more and

3 more, because more development is occurring.

4 And you can't stop it, because you've

5 got to have these big 55-foot tractor trailers to

6 support the development, not to mention, once

7 they're finished, all the goods and services that

8 have to be supported, and all the emergency

9 vehicles that are going to increase as a result

10 of the development. So the air is going to be

11 toxic.

12 MR. OTTEN: Thank you, Mr. Johnson.

13 MR. BYRNE: Thank you.

14 MR. OTTEN: Mr. Byrne, I have to use

15 the restroom.

16 MR. BYRNE: Okay. Let's see. Would

17 it make sense to stop for lunch now?

18 PARTICIPANT: Your mic's not on.

19 MR. BYRNE: Sorry, thank you. We'll

20 reconvene at 1:15 with hopes that we can conclude

21 everything by 5 o'clock today.

22 MR. JOHNSON: Mr. Byrne, I can give

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1 him copies of these documents so he can submit

2 them for the record.

3 MR. BYRNE: Great.

4 (Whereupon, the above-entitled matter

5 went off the record at 12:20 p.m. and resumed at

6 1:26 p.m.)

7 MR. BYRNE: Okay, we were going to

8 call this session back into session, call this

9 hearing back into session. All right, Mr. Otten,

10 I think we're done with Mr. Johnson, and so you

11 may proceed.

12 MR. OTTEN: Okay. So for the record,

13 Chris Otten for DC For Reasonable Development. I

14 think now that Mr. Johnson has testified, we

15 don't have any more witnesses. So what we're

16 doing is presenting our case as to why this

17 project does not rise to special merit in your

18 balancing act.

19 And to do that, I want to just go

20 through narrative, and then I will show some

21 exhibits associated with that. And then I think

22 at the end I want to just point out some of the

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1 more critical, I guess, contentions between what

2 the applicant is claiming is a benefit versus

3 what we're seeing is actually not a benefit, or

4 in actuality an impact that you should consider

5 when looking at this.

6 But you can see by this slide here, it

7 shows the site in its context. And this of

8 course is the bird's eye view of the reservoir,

9 and then the red line surrounding McMillan Park.

10 And of course, underneath there is the

11 underground water filters.

12 The reason why I wanted to show you

13 this is as you can see, generally around the site

14 you have fairly low density zone districts. And

15 what is proposed here is a very high density

16 project, high density and medium density project.

17 And so in the context of its

18 surrounding neighborhood there, it's going to

19 bring serious impacts. And Mr. Johnson went over

20 a few of those. But we also have this is the

21 plan, the parcels and street dimensions from the

22 submission by the applicant in 2014 showing that

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1 one of the key things here is the view sheds.

2 I mean, the massive project, high

3 density project, will destroy the historic vistas

4 and view sheds into the park, through the park

5 from every direction. If you're standing on

6 Michigan Avenue looking south, you'll be able to

7 look across Cell 14, but then your view shed will

8 be blocked by the large building on Parcel 4.

9 The only view shed that continues to

10 exist is a narrow one, basically looking down Cap

11 Street and out to wherever that might push out.

12 But you're viewing it through a corridor. And

13 we've asked for kind of perspectives of this.

14 It's not on the record. Even if

15 you're standing in the North Service Court, most

16 of your south views, which are the famous ones

17 down to the Mall, are blocked. And even if you

18 can see them down these small, narrow streets,

19 it's highly shrouded between large buildings.

20 The building on Parcel 4 is I think 75

21 feet. Parcel 3 is 100 plus feet. Parcel 2 is

22 100 plus feet. These are large, downtown size

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1 buildings. And so your view sheds are blocked,

2 and there's no way around that.

3 The Parcel 2 building here, there's

4 actually a hyphen that cuts across Quarter

5 Street, or it would be Three Quarter Street.

6 Even if you are standing in the North Service

7 Corridor, that hyphen between the two buildings

8 blocks entirely that historic view shed to the

9 south, to the monument, to the Capitol.

10 Now that's not just our, you know, our

11 words for it. Lincoln's Cottage wrote the staff

12 there, wrote official letters, highly concerned

13 about blocking of the Capitol from where Lincoln

14 wrote his important documents. And that was in

15 2014 that letter was written.

16 And then the National Trust For

17 Historic Preservation in 2013 also mentioned it

18 and referenced some of the initial planning that

19 had been envisioned for this site in 1990 which

20 described, you know, four story buildings as

21 maybe, it says right here, "From this analysis we

22 find that one, a distinctly open space character

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1 McMillan Park is still scenically desirable as a

2 federal interest.

3 "And two, any structures to be

4 introduced within the District owned part of the

5 McMillan Park should be widely spaced, not exceed

6 the four story height of Veteran's Hospital, and

7 preferably have lower transition heights to blend

8 with the immediate landscape."

9 None of this is happening with this

10 project. It's a high density project. And we

11 have determined that the historic vistas into and

12 through the site are one of the key defining

13 characteristics of this site.

14 And why is that important? Well,

15 that's important because as brought forward again

16 by the applicant, and as mentioned in the

17 testimony by the applicant, the Tregaron case

18 which is also referenced by the Historic

19 Preservation Office staff, you know, talks about

20 why Tregaron is important as a key case in

21 historic preservation and what it means.

22 And one of those important parts of

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1 that decision was the invisible nature of the

2 buildings on the overall site. Here it's the

3 opposite.

4 We have very, very large buildings

5 that aren't widely spaced apart, that are

6 shrouding the above ground historic assets that

7 eliminate the vistas and views of these historic

8 assets as well as through the site by the people

9 that enjoy them now.

10 And those people include DC For

11 Reasonable Development members. And you know, I

12 mean, like Ms. Judd who lives just south of the

13 site, who's lived in her house for 45 years, Ms.

14 Joan Carrow who lives on Girard Street who looks

15 down Girard down through to see historic Howard

16 University campus across the park and to the

17 reservoir.

18 And she talks about the cool air

19 coming off the site down Girard to her home, how

20 that will be injured. Ms. Flores who also lives

21 on North Cap who's highly concerned about the

22 massive traffic. So we have these injuries to

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1 these key defining features of the site that are

2 part of the historic aspects of the site.

3 So when taken together, the structures

4 as proposed by the applicant located on the north

5 side of the park would substantially destroy the

6 north/south vistas, including from the vantage of

7 the historic North Service Court itself.

8 The Zoning Commission also did nothing

9 about it last week. You know, they made their

10 decision to reapprove the project. And they did

11 nothing about in Parcel, I believe 4, the poor

12 and elderly and segregated lobby in the so-called

13 multi-family building.

14 I mean, we think this is an adverse

15 impact. We think this is a negative aspect to

16 the site. None of the seniors living at Jair

17 Lynch's Building will be able to have extended

18 family live with them as their clock winds down

19 in these sites. They're literally it's studios.

20 It's not living that we would consider

21 as a special benefit. And the Meadow Complex

22 among the other 100 foot tall buildings on the

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1 northern portion of the site will shroud the

2 above-ground assets, permanently block the

3 cherished public and historic views of the

4 Capitol and downtown cultural resources.

5 You know, these historic McMillan

6 vistas are celebrated today on Twitter and other

7 social media sites. I mention the Lincoln's

8 Cottage. I mean, they're still talking about it

9 as of even today.

10 Let's see, I'm just going to scroll

11 down. Lincoln's Cottage tweeted out in June, did

12 you know you can see the Capitol Dome from

13 President Lincoln's Cottage? During the Civil

14 War, Lincoln saw it as a reminder of his duty.

15 These are the sites that are going to be blocked

16 in a significant way.

17 We also want to put to bed the whole

18 fact that this was never considered a part. The

19 applicant still seems to take that position. We

20 would like to introduce plenty of evidence that

21 was pulled up by a local resident, Paul Cerutti,

22 acknowledging this park and what it meant to the

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1 community at the time when the fence wasn't up.

2 Of course, the fence was put up in

3 WWII, and it was supposed to come down soon

4 thereafter but it never did. But just because

5 the site hasn't been readily accessible doesn't

6 mean it's been closed for decades as the

7 applicant wants to suggest.

8 You know, as of 2013 even, there was a

9 tour of the site. And these are tours not only

10 led by the community but also the Council Member

11 at the time, Harry Thomas, and by DMPED we

12 believe. But the latest one, like I said, was a

13 stronghold tour of McMillan Park in November of

14 2016. And there is some folks under the ground

15 there and the historic waterfalls.

16 And speaking of water, in this slide

17 here you can hear Mr. Johnson, how important

18 water was. And one of the actual more delightful

19 aspects of this project before it's now come back

20 to you was the water features as proposed in the

21 southern portion of the site.

22 All of those now are gone. So there

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1 won't be a water fountain flowing off the silos.

2 There won't be a water feature in any significant

3 way as pictured in this version of the design.

4 So those were eliminated.

5 Also eliminated, like I'm saying, are

6 the vistas. I mean, we have amazing views to the

7 Basilica, to Howard, and to downtown. So these

8 are all key to finding aspects of the site that

9 are being eliminated by this not-so-special

10 project. And we believe it's being done for

11 VMP's profit margins and really not about the

12 aspects of historic preservation.

13 A special merit project considers

14 exactly what is largely missing in this

15 application, that is good use, good land use

16 planning. Mr. Johnson has reviewed some of that.

17 And besides Mr. Johnson, we adopt the expert

18 testimony brought forward by Friends of McMillan.

19 But forgetting about us for a moment,

20 the independent auditor of DC also complained

21 about the project having, failing to have any

22 real vertical competition. And we do believe

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1 this is in part why there isn't any vertical

2 construction alternatives to really point to.

3 The alternatives that the applicant

4 references in their July 14th, 2017 printed

5 testimony demonstrates birds-eye only drawings

6 with structures larger than the scene density and

7 with the same land use going back to 2008.

8 The applicant shows us they shifted

9 some of the buildings around, but the project

10 largely remains the same. And we don't concede

11 that these so-called alternatives were ever shown

12 publically, or that the public received access to

13 supporting notes and/or written meeting reports

14 each one of these alternative designs may have

15 been shown off by the applicant.

16 In contrast, we would ask you to

17 consider the very thoughtful and detailed report

18 that was put out by the Office of Planning in

19 2002 which Mr. Johnson reviewed. And that

20 includes a map with the state of repair of the

21 McMillan Waterworks filter beds.

22 And the state of repair of the

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1 underground waterworks, they're largely in the

2 same condition as that shown by the maps in the

3 Silman-Eig reports of 2012, 2014.

4 The 2002 OP report has, in the slide

5 right here, also include several land use maps

6 demarcating options of intensity, land use

7 intensity discussed by the community as it

8 relates to the future of McMillan Park.

9 In the end, the final recommendations

10 show a collaborative, a collaboration of

11 discussion and ultimately a compromise between

12 the various future land use options deemed

13 feasible.

14 In contrast to the proposed VMP plan

15 at the time, the community sought to keep 50

16 percent of the site, at least, remaining open,

17 green, and public, and with the construction of a

18 low and moderate density structures to

19 financially support the rehabilitation of the

20 park.

21 DC for RD believes the 2002 OP report

22 and resulting community compromise served to

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1 forge city planning policies such as in the

2 conference plan. And the future vision of

3 McMillan Park emphasizing the protection of the

4 existing substantial open continuous space and

5 vistas, as well the least demolition of the

6 historic and below ground assets of this amazing

7 waterworks, filter beds, pumps, and sand beds.

8 Now so that report, we believe, fed

9 into the 2006, where is it, just give me a

10 moment. Well, is this it? Yes. So the 2006,

11 the solicitation for the land development partner

12 was issued. And we believe a lot of the

13 recommendations about the lower density and

14 intensity was found throughout this solicitation.

15 Then all of a sudden it jumped to, in

16 2008 to the plan that's in the printed, I guess

17 it was also in 2006, the plan that was presented

18 to you as the initial alternative. We just don't

19 understand how it jumped from 50 percent

20 remaining open and green, and low and moderate to

21 such a significant project that is now before

22 you.

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1 And nothing in the record, nothing we

2 could find under testimony under cross can

3 explain the extreme jump of intensity as the

4 plan, as their current plan shows. It's

5 interesting that the jump in the intensity and

6 density between the maps of 2002 planning and

7 that of 2006 and '08 grew as numerously as the

8 developers, attorneys, and administrative staff

9 involved in this case, which taxpayers are

10 funding right now.

11 Yet despite all these players

12 involved, as we heard from Mr. Johnson and on the

13 record, basic land use evaluations to get

14 baseline levels of existing public services can't

15 be found on the record, water use, air quality,

16 pollution, noise, social impacts, health impacts,

17 land value destabilization, existing utility use,

18 community facilities, emergency response

19 capabilities, and other planning metrics.

20 So one cannot weigh the impacts versus

21 the benefits of the existing public services and

22 environmental qualities are not understood in a

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1 meaningful way, particularly through the lands of

2 land use planning.

3 The proposed VMP project is likely to

4 prove to be a negative development that hurts the

5 surrounding community and injuring property

6 values to a significant degree. As the applicant

7 may argue, it may profit themselves, it's a

8 profit through city tax generation.

9 But there's absolutely no accounting

10 for the amount of tax dollars needed to fund the

11 ongoing operation of this project. New public

12 streets, new public pipes, utility conduits,

13 transit services, police, fire. You get the

14 picture. I mean, libraries. You cannot find

15 that on the record.

16 So one cannot weigh tax generation as

17 a special benefit of the project without looking

18 at the interrelated potential adverse tax costs

19 of the project.

20 And what of the costs associated with

21 giving away and privatizing this amazing public

22 site? One of the important key to finding

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1 aspects of the site is that it's publically

2 controlled. This will end if this project is

3 approved.

4 And that's an impact on special merit.

5 We will not have control over the future of this

6 site. We will not be able to determine if at a

7 later time, since the re-zoning is to high

8 density, whether or not the surrounding area will

9 be rezoned and displaced, or let the townhomes

10 that are part of this might be later raised and

11 go to high density.

12 So what is the cost of giving away and

13 privatizing this land is a very real question.

14 And it's not something that's I guess so profound

15 as just more basic planning protocol and

16 fundamental common sense. These questions should

17 be asked now and answered. They have not.

18 The lack of evidence and the absolute

19 negligence in planning and across the complicity

20 of all these actors is especially criminal

21 considering how many children in DC will go to

22 bed hungry tonight, or how many homeless families

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1 are seeking shelter tomorrow night.

2 The failure in land use planning and

3 the lack of evaluation impacts versus the so-

4 called benefits as touted by the applicant

5 therefore permeates all other discussions

6 regarding this project such as the so-called

7 exemplary architecture and sustainability.

8 No architecture is exemplary when it's

9 flooded out. McMillan site, excuse me, the

10 McMillan site is located in the center of an

11 internal DC flood plan. And I would like to pull

12 that up real quick.

13 Here it is. So this is from the

14 Mayor's Climate Ready Plan, this was passed in

15 2015. And I would like to submit this. This is

16 part of some of the analysis that should have

17 gone into this project, but it has not. The land

18 use planning here did not consider that locating

19 the hospital complex, or the medical facilities

20 as proposed is obviously a problem in an area

21 anticipating major flooding.

22 And these warnings have been ignored

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1 by Trammel Crow's Medical Complex placed at

2 McMillan's crown. And you know, it's interesting

3 because this same building that's going to be

4 placed in a flood plain is also going to block

5 the views of all the folks who are healing in the

6 other hospitals that they enjoy now, looking out

7 across McMillan.

8 At first blush, the Parcel 1 behemoth

9 bears an eerie resemblance to the tear-it-down-

10 now FBI Building. Now I realize the FBI Building

11 is a brutalist style, and maybe this is more of a

12 modern proposal that they're proposing in the

13 northern parcel.

14 But it's, in terms of its immensity,

15 in terms of its styling of windows, it is very

16 similar, and it is a massive wall. This complex

17 is so monolithic in its context to the directly

18 adjacent above-ground sand bins and regulator

19 houses as to laugh at the black letter of the

20 Tregaron holding, the same highlighted by the

21 applicant and Office of Planning.

22 There is nothing invisible about these

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1 buildings, especially in the historic open and

2 contiguous area in context of McMillan Park.

3 The other aspect of land use planning

4 and the hospitals, besides the fact that they're

5 trying to locate it in a flood plain, is the real

6 question of equity of medical complexes in the

7 City.

8 As you can see here, right around

9 McMillan in Ward 5 and in Ward 1, we have a

10 cluster of hospital complexes, as testified to.

11 And in cross examine, we were told that there was

12 no analysis done of whether or not this type of

13 project would be better associated with needs in

14 Ward 7 or Ward 8.

15 And we believe that there is no

16 accounting for equity in medical services here

17 and with this project as it regards our neighbors

18 across the Anacostia River. And clearly right

19 now, Ward 1 and Ward 5 neighbors have wide access

20 to robust medical services in the facilities just

21 north and east of McMillan.

22 In contrast, the size of the food

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1 issue, Wards 7 and 8 have limited access to

2 medical services, and unfairly so. Inequitable

3 planning, we believe, is discriminatory planning,

4 but it's certainly poor land use planning. And

5 it substantially reduces the merit of this

6 project especially.

7 To the hospital issue, I just want to

8 point out that one of the experts of the

9 applicant, Ms. Eig, produced a report in 2010,

10 the Historic Preservation Report for the Proposed

11 Redevelopment of the McMillan Slow Sand

12 Filtration site in July 28th, 2010.

13 I just want to point out that on Page

14 77, or I guess Page 80 of this PDF, Ms. Eig says

15 during the latter half of the 20th Century, the

16 construction of the medical complexes to the

17 north of McMillan severed the physical

18 relationship that originally existed between the

19 McMillan site and the Soldiers' Home, and

20 interrupted the once continuous open space of the

21 McMillan site and the homes dairy pastures.

22 So basically, you know, running up

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1 north of the slope. She goes on to say despite

2 this intrusion, the site retains its overall

3 setting as a public works facility and the

4 sprawling urban development of the City. And

5 therefore, the McMillan site retains a moderate

6 degree of integrity of the setting.

7 So here we are seven years later. And

8 the concern Ms. Eig had about the interruption

9 and this intrusion north of the site is now on

10 the site, a large medical complex on the north

11 Parcel 1 of the site therefore destroying what

12 she claims is what was at least at that time the

13 site retaining a moderate degree of integrity of

14 the setting.

15 That's very important because we

16 agree, it does destroy the moderate degree of

17 integrity of this setting. And it's a historic

18 setting of its open, contiguous space which is

19 referenced in the HPRB reports, and in the

20 applicant's reports, and in the application to

21 put this site on the national registration all

22 mention the importance of the open, contiguous

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1 space that this site historically has had. And

2 it is being obliterated by this high density

3 project.

4 And that gets us to the, I think I

5 might have spoken about the alternatives. But it

6 gets us to the issue about what was visioned,

7 what was the future of this site always

8 envisioned to be.

9 I reference the 1990 documents, the

10 comprehensive plan of 2006 documents. And you

11 know, the fact that our own Historic Preservation

12 Office and the October 2013 reporting to HPRB,

13 Mr. Callcott, "As this project will result in

14 substantial demolition of character defining

15 features, and the redevelopment will compromise

16 the open space quality of the site."

17 They conclude the project does not

18 meet the Secretary of the Interior standards for

19 rehabilitation and guidelines of renewability and

20 rehabilitating historic buildings.

21 This is in a historic district. And

22 what happens to McMillan is going to affect the

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1 whole historic district. It also contravenes

2 these covenants that run with this site.

3 We saw the applicant provide

4 information about the filter beds that are

5 underneath this site. These are magical, magical

6 spaces that are poetically, can be reactively

7 used for amazing things. We saw that according

8 to the May 2016 EIG report and the Silman study,

9 they are at least three filter beds that are in

10 very good shape right now.

11 And we saw that the, about half the

12 site, yes, the filter beds are in poor shape.

13 But half the site they're moderate to good shape.

14 But we see a project here that blows out all of

15 the, at least the perfectly fine filter beds,

16 with massive buildings.

17 And we don't quite understand this.

18 What we heard testified to is that the filter

19 beds themselves could collapse at any moment.

20 Let's see, let me just pull that up real quick.

21 So Mr. Ruiz which who is the expert

22 for them said, "The unreinforced concrete fails

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1 without warning and catastrophically," in

2 reference to these cells just because a cell

3 isn't collapsed, or a collapse did not occur does

4 not mean it will not.

5 These failures involve a sudden

6 collapse, tons of soil and concrete materials, a

7 very dangerous situation. And the coloring of

8 those cells represent the years of damage and

9 that, as noted previously, the conditions can

10 change without warning meaning the green cells

11 can become yellow, yellow to red, red to

12 collapse.

13 So when you look at the filters, when

14 you look at, you know, that map, I mean, we have

15 DC Water right now working in Cell 14. That is a

16 yellow colored cell in the northern, northeast

17 corner. They're cutting through it, there are

18 people down there, there are machines down there.

19 DC Water has not put on the record at

20 any point they were nervous that these filter

21 beds would be collapsing on top of them and on

22 top of their project which is supposed to be

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1 there until 2022.

2 We can save many of these filter beds.

3 The applicant has failed to show alternatives

4 that does far less demolition to these beds than

5 what's being proposed. In fact, they want to

6 save half of Cell 28, which as you can see down

7 in the southwest corner, is one of those orange

8 cells that could turn red at any moment and

9 collapse according to their expert.

10 They want to save half that cell. So

11 it would seem they would have to double the

12 amount of work just to get half that cell to be

13 retained because the cell is one incorporated, I

14 mean, the way it was designed is one incorporated

15 fixture. And if you start cutting through it,

16 supposedly, this could collapse. So they would

17 have to do double the work to just save half that

18 cell.

19 We really find this unacceptable.

20 Without the competition as noted by the auditor,

21 there are no alternatives that help save more of

22 these cells. This is a key part of this project.

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1 It has been noted by HPO that this substantial

2 demolition here does not follow the Preservation

3 Act, and it does not follow the covenants that

4 are on this site.

5 And we would reference, we'll

6 reference our prior submission in terms of the

7 covenants. I don't want to get too much into

8 that today within our presentation.

9 To conclude, the land use planning

10 here is very poor, and nowhere near special. The

11 so-called exemplary architecture, like I said, in

12 a flood plain will not be exemplary when it

13 floods. The project fails equitable distribution

14 of the health care access. And without

15 competition, there's no alternatives.

16 We would like to submit the exhibits

17 we have on this USB in total, which I would like

18 to give to Ms. Brown and Ms. Ferster, and also to

19 Ms. Jackson of the Preservation Office.

20 And what we have done is we've listed

21 the folders that are on this USB that have all

22 the stuff I just showed you, maybe some

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1 additional things like our membership rolls and

2 stuff like that.

3 During the, I actually just

4 remembered, during one of the, during the cross

5 examine, we talked briefly about, you know, the

6 park and how that's being considered a benefit.

7 But you know, there are serious

8 intrusions into this park we believe will happen,

9 that therefore that should also be considered.

10 For example, this was their, let's see, the First

11 Street tunnel project.

12 You know, we had this environmental

13 assessment document that's publically available.

14 But it shows how within that park there will be,

15 they will need to access it, and they will need

16 to have a, the mining shaft in there will need to

17 have a cover, an access point, and gratings

18 around it that will interfere with that park use.

19 And they haven't really explained that.

20 But we think that's an actual negative

21 impact in that park, and it's actually going to

22 take up a significant portion of that park. So

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1 we wanted to put that on the record as well. And

2 I think we covered it.

3 (Off microphone comments)

4 MR. BYRNE: So I think because you

5 presented a lot of factual information, we need

6 to have cross examination. I would like this not

7 to, at this point, develop into an argument about

8 the law necessarily. I mean, I trust your

9 judgement.

10 But I'm going to, if it starts to have

11 that character then I'll intervene. But I do

12 want, you obviously have to have a chance to

13 address factual assertions that you've presented.

14 So with that in mind, please proceed.

15 MS. BROWN: Actually, I think most of

16 the issues that he has brought up are already in

17 the record, both in the 2014 case, the 2015 case,

18 and what our witnesses have already testified to.

19 So I don't think I have any cross examination

20 questions.

21 I do have an objection to, or

22 potential objection to the materials on the flash

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1 drive. I haven't had a chance to review them. I

2 don't know what's on them, and I would like an

3 opportunity to do that.

4 And reserve the right to object to

5 anything that I believe is beyond the scope of

6 the hearing. And I think that's probably best

7 done in writing at this point.

8 MR. BYRNE: Yes, that's my sense as

9 well. So you do have to have an opportunity to

10 look at the documents and see if there's stuff

11 that you want to object to. So why don't we

12 provisionally accept it now, with the

13 understanding that you can, in writing, argue to

14 strike documents from the record based upon

15 whatever grounds you want to assert. That sounds

16 like a good way to go.

17 MR. OTTEN: Okay, so what I'm going to

18 do now is, just for the record, on the USB stick

19 that I used for this presentation I'm going to

20 give to Ms. Brown. And it's the entirety of

21 everything I showed plus a few extra exhibits.

22 And again for the record, and for you,

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1 Ms. Brown, this USB stick has these folders on

2 them. And the exhibits are kind of divvied up

3 based on these categories, or these folders.

4 MR. BYRNE: So I assume you have

5 another copy of this?

6 MR. OTTEN: A copy of?

7 MR. BYRNE: Of what's on the stick.

8 MR. OTTEN: I have three sticks.

9 MR. BYRNE: Oh, you have three sticks?

10 MR. OTTEN: Yes, so one for you.

11 MR. BYRNE: All right.

12 MR. OTTEN: One for Ms. Ferster, and

13 one for Ms. Brown.

14 MR. BYRNE: Okay, that's great. Okay.

15 (Simultaneous speaking)

16 MR. OTTEN: Let me just close this

17 out. All right, I don't know how to do this

18 quickly. So maybe I'll just shut the computer

19 down, I have a lot of stuff open. Okay, so

20 should I give this to Ms. Jackson?

21 MR. BYRNE: Yes.

22 MR. OTTEN: Okay, and Ms. Ferster.

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1 And I'll just clean up here.

2 MR. BYRNE: Okay.

3 MR. OTTEN: Thank you.

4 MS. FERSTER: While he's -- Andrea

5 Ferster. While he's getting ready, I do have,

6 before we go into the public testimony, I do have

7 a request at this point. After the public

8 testimony, there will be an opportunity for the

9 applicant to provide rebuttal testimony, and then

10 for the opposing parties to provide surrebuttal.

11 And because our witnesses, you know,

12 have other obligations, they have all left. But

13 you know, I have their cell phone numbers, and I

14 have told them that I will let them know at this

15 point, you know, whether we're going to need them

16 for surrebuttal so that they can come back, take

17 the time to come back while the public is

18 testifying.

19 So I would ask at this point if the

20 applicant could identify their rebuttal witnesses

21 so I can know which of my witnesses I need to

22 bring back.

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1 MR. BYRNE: Are you prepared to do

2 that?

3 MS. BROWN: I think it's kind of

4 ironic that every time I ask for something I'm

5 refused, and the requests still come in from Ms.

6 Ferster. I don't have a problem with that

7 because we have nothing to hide.

8 And the witnesses are the ones that

9 she had seen before, Mr. Bell, Ms. Eig, Mr.

10 Bogardad, Mr. Thakkar, and potentially some

11 engineers, Mr. Kurt, and Mr. Shane Dettman if I

12 didn't mention him.

13 MS. FERSTER: Thank you.

14 MR. BYRNE: Okay. So as I understand

15 it now, we will be ready to hear from public

16 witnesses who wish to speak. As indicated

17 earlier, we would like to limit members of the

18 public speaking on their own to three minutes

19 each.

20 You don't need to be sworn. We are

21 open to reading your extended comments in

22 writing. You can extend it to the Office of

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1 Planning, please, Historic Preservation Office.

2 And I know that people have strong feelings, and

3 have made an effort to be here, so I want to hear

4 what you have to say.

5 But I remind us all of the old

6 observation that everything's been said but not

7 everybody's had a chance to say it. So to the

8 extent to which you would like to just associate

9 yourself with remarks that you've heard, that's

10 fine.

11 But we will then proceed. I have a

12 little timing device here I'm going to use. So

13 let me, we have here, we can do about six at a

14 time at the table. So if there are six people

15 who would like to speak, I invite you to come to

16 the front and have a seat here at the table.

17 If we have more than six, we'll wait,

18 we'll just sort of assort yourselves.

19 MR. OTTEN: Mr. Byrne, also -- I'm

20 sorry, Chris Otten for the record. I'm just

21 going to also submit this for the record as well.

22 MR. BYRNE: Okay, this is the, Mr.

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1 Otten is submitting a map of Ward 5 that Mr.

2 Johnson used for his testimony to show about

3 other development sites.

4 MR. OTTEN: Yes.

5 MS. BROWN: And I assume that I'll be

6 getting a copy?

7 MR. OTTEN: I have to take a picture

8 of this and send it to you.

9 MS. BROWN: Thank you. And Mr. Byrne

10 out of an abundance of caution, I might suggest

11 to you that the witnesses be sworn in -- when

12 involving public testimony, they're supposed to

13 be attesting to the facts. Again, I leave it to

14 you.

15 MR. BYRNE: So just help me, where

16 does that come from?

17 MS. BROWN: From the other contested

18 case proceedings that I've participated in before

19 the Board of Zoning Adjustment and the Zoning

20 Commission, and in this Office of Administrative

21 Hearings. However, even public witnesses are

22 sworn in.

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1 MR. BYRNE: Really? Well, okay, thank

2 you. I don't think I've done that before. It

3 adds to your dignity if they're sworn in, so we

4 will do that. So this is easy to do. So all the

5 people who wish to speak will do this all at

6 once.

7 (Witnesses sworn)

8 MR. BYRNE: Thank you all very much.

9 All right, let's proceed. And let me ask you,

10 we'll start with you, ma'am. As everyone begins

11 to speak, will you please identify yourself for

12 the record? Thank you. And if you have a

13 written version of your testimony, I'll take it

14 and I'll share it with these guys.

15 So please proceed. Again, three

16 minutes each.

17 MS. ROSEN: My name is Andrea Rosen,

18 and I'm testifying regarding Issue number 2. The

19 court decision vacating approvals of McMillan

20 town center requirements the District to consider

21 the PUD's "potential effects on neighboring

22 property values and the risk that neighborhood

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1 residents would be displaced," consistent with

2 the comp plans mid-city element, protection of

3 affordable housing.

4 VMP promises to build 96 new units for

5 households earning 50 to 60 percent AMI. And it

6 asserts that because no housing exists on the

7 McMillan site, no affordable housing can be lost

8 to the PUD.

9 These points side-step the question of

10 whether the development would protect or erode

11 the existing stock of affordable housing in the

12 century old low rise neighborhoods abutting it,

13 Bloomingdale and Stronghold.

14 For decades, these neighborhoods have

15 been inhabited by families and seniors of modest

16 means. Ever rising property taxes is a major

17 factor in displacement. Would a massive PUD at

18 McMillan raise property taxes for nearby

19 residents? Would the PUD deliver to the

20 community more affordable housing than it would

21 eliminate?

22 To try to answer these questions, I

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1 researched property tax data for the properties

2 and squares around a large market rate townhouse

3 PUD called Chancellor's Row built in the

4 neighborhood, I'm sorry, Ward 5 neighborhood of

5 Edgewood in 2012.

6 Tax bills for the older properties

7 proximate to Chancellor's Row have increased an

8 average of 11 percent annually since Chancellor's

9 Row was built.

10 While the assessments in the City

11 overall were raised by five and a half percent

12 for 2018, assessments for these Edgewood

13 properties were raised an average of seven

14 percent with land values up by ten and a half

15 percent for 2018.

16 But the PUD effect is not limited to

17 properties adjoining it. A mile from

18 Chancellor's Row and separated from it by a large

19 cemetery, Stronghold consists of some 270 single

20 family rowhouses, very few of them remodeled.

21 Stronghold's land valuations also have

22 been raised in response to Chancellor's Row

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1 according to OTR. Since 2012, Stronghold

2 residents have paid an average nine percent

3 higher property tax each year, and for next year

4 Stronghold's land valuations have been raised

5 10.8 percent.

6 If OTR is raising Stronghold's land

7 assessments on the basis of Chancellor's Row a

8 mile distant with no functional connection to

9 Stronghold, the effect on Stronghold and

10 Bloomingdale of a PUD right across the street

11 will be greater.

12 Even if affordable units were made

13 available for seniors living in nearby rowhouses

14 on a one-for-one basis, studios and one bedrooms

15 are not a fair exchange. Moreover, they won't

16 preserve existing affordable housing.

17 Rising property taxes and the pressure

18 they exert on developers to recoup land expense

19 will displace many in the communities surrounding

20 McMillan.

21 I ask the Mayor's Agent to balance the

22 loss of affordability around McMillan against the

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1 promised "affordable housing" before concluding

2 that the PUD delivers special merit necessary in

3 the public interest.

4 Does a real calculation of net costs

5 justify sacrificing the Preservation Act and the

6 historic landmark it is meant to protect?

7 MR. BYRNE: Thank you, Ms. Rosen. Now

8 sir, please.

9 MR. NORMAN: My name is Tony Norman, I

10 serve as Chair of the McMillan Park Committee.

11 The McMillan Park Committee is the group that

12 originally designated the site a historic site,

13 landmark before the DC Preservation Board.

14 I also had the opportunity as serving

15 as President of the Bloomingdale Civic

16 Association in the past, which is where this site

17 is located, in Bloomingdale. I also had the

18 opportunity of serving as Chair of ANC 1B which

19 the historic site, majority of the historic site

20 is located in ANC 1B.

21 And I've been involved with this

22 project since the outset for the last 30 years.

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1 I've been to 99 percent of all the community

2 meetings. And contrary to popular belief, the

3 community and people opposing this site are not

4 against development.

5 I wanted to make that very clear I

6 think to you as the Mayor's Agent to understand

7 that very clear. As a matter of fact, we were

8 the ones who approached Jair Lynch and EYA, the

9 developers on this site, to get involved in this

10 project because we wanted a project that is truly

11 spectacular.

12 So we approached them to get involved

13 in this project, to develop McMillan. So we're

14 not opposed to developing. We have an idea, and

15 we'll speak to the historic character of the

16 site, that I don't think that as much as they're

17 demolishing, that the benefit that they're giving

18 to the community is not much in terms of historic

19 character.

20 When the developer developed this

21 plan, and I want to also state this, that I think

22 if you really look at Emily Eig's report, I think

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1 it's an excellent report, and we said so when it

2 came out. The only probably is the development

3 project was finished before her report was

4 completed, the overall concept of the master

5 plan.

6 So if you look at the evolution of

7 this project, the bottom line is that essentially

8 you have a pig that's being putting lipstick on

9 and dressed up as to be something other than

10 itself. And the pig is as a large box

11 development.

12 And that concept is to maximize the

13 profits of what they develop, and then to come

14 back later to justify that project.

15 And I think Bell which is an

16 outstanding firm, they've done an excellent job

17 in the cosmetic work that they've done on the pig

18 to meet the criteria to be here, as well as what

19 they've done because in essence, there was no

20 really serious effort about alternative plans in

21 terms of reducing the density of the development

22 and preserving as much as possible because as

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1 been testified earlier, the core of the cells,

2 the stable cells are in the center.

3 You would think that if you're going

4 to develop the project, you would say well what

5 can we preserve and how we can maintain the site

6 while we're developing it. But the evolution of

7 the development project is they came out with the

8 development plan first before the historic

9 characters and everything was itemized and

10 recommended.

11 In fact, I think if you look at the

12 recommendations in Ms. Eig's report, I thought it

13 was excellent in terms of what should be

14 preserved, the stable cells. And if you look at

15 the planning back in 2002, there were

16 alternatives of redevelopment and stabilizing

17 certain cells.

18 If you look at where the cells are

19 being destroyed, you see around the edges. And

20 it's built on the Tiber Creek. Even when they

21 constructed the site, those parts were actually

22 sinking, that eastern end and southern end.

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1 And they had to reinforce it almost

2 every year to put concrete down there to

3 stabilize it. Since the District purchased the

4 site, they have not done that. Most of those

5 collapsed cells are in that location. That's a

6 very i9mpt point in terms of how stable this is.

7 I don't want to get deep into the structure.

8 MR. BYRNE: Mr. Norman, you are past

9 three minutes. I would ask you to please --

10 MR. NORMAN: Okay, I'm going to wrap

11 up to simply state that when you weigh, this is

12 not a project of special merit. It does not meet

13 the criteria of special merit, particularly in

14 housing.

15 If they had provided 30 percent of the

16 housing that the City owns the site, the City has

17 subsidized the site, the City is even paying for

18 the developers and the architects to be here

19 today.

20 If you look at the benefit that the

21 City is gaining from that, you would think that

22 30 percent of the affordable housing which is a

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1 great need for the City, would be attached to

2 this City owned project. But that is not the

3 case.

4 I do not think when you weigh the

5 balance that it meets the merit of special merit

6 in this category.

7 MR. BYRNE: Thank you.

8 MR. NORMAN: Thank you.

9 MR. BYRNE: We appreciate that. Sir,

10 your turn.

11 MR. PELOQUIN: My name is Jerome

12 Peloquin. I'm a resident of Ward 5 and a member

13 of the McMillan Coalition for Sustainable

14 Agriculture.

15 MR. BYRNE, ladies and gentlemen, my

16 name is Jerome Peloquin. I'm a resident of Ward

17 5 and a member of the McMillan Coalition for

18 Sustainable Agriculture.

19 I am by training an organizational

20 psychologist with 35 years of unbundling

21 management's efforts to rig the system in their

22 favor. And in that capacity I am well qualified

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1 to comment on the issues at hand here today.

2 I testify specifically regarding the

3 decision of the DC Court of Appeals to remand and

4 vacate HPA 14-393 and HPA 15-133. And

5 specifically the decisions of the Zoning

6 Commission and MR. BYRNE, the Mayor's Agent, for

7 reconsideration and clarification.

8 In their remand, the Court

9 specifically cited MR. BYRNE's failure to

10 adequately consider the issues and regulations.

11 One of the specific questions of the Appeals

12 Court panel of three judges unanimously agreed

13 upon was what are the specific architectural land

14 planning and community benefits that individually

15 or collectively make this a project of special

16 merit within the meaning of the DC Code.

17 It should be clear to even a casual

18 reader that the applicant has failed to make that

19 case of special merit. Additionally, the Court

20 asked are there reasonable alternatives that

21 would achieve the same special merit benefits

22 that would avoid or reduce the need for

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1 demolition or subdivision.

2 Here the applicant has made no effort

3 to identify or propose alternative uses. In

4 spite of numerous attempts to suggest potentially

5 viable alternatives, neither the City

6 administration, DMPED, nor the appellant, DMP,

7 has ever responded to any suggestions.

8 Clearly, the applicant has failed to

9 address the Court's instruction and remand. To

10 the point, it requires no legal training to see

11 the blatant conflicts driven throughout the

12 entire Mayor's Agent process. The Mayor's Agent

13 is expected to rule against an administration

14 that is actually a business partner of the

15 applicant, and to whom the Mayor's Agent relies

16 upon for his employment.

17 In this I second this first demand

18 that MR. BYRNE recuse himself from further

19 participation in this seriously flawed process.

20 Finally, in what appears to be an

21 egregious and callous demonstration of

22 indifference, MR. BYRNE bragged in an open

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1 hearing, on the record, that he had never read

2 the covenants.

3 These covenants which are appended to

4 the federal deed to the City, from the City to

5 the government, the guidelines deny modification,

6 these guidelines deny modification of the site in

7 any way, and prohibit demolition of its

8 historical artifacts.

9 In addition, it requires detailed

10 records of any actions that modify or change even

11 a windowpane, pump handle, or gate latch.

12 Willful ignorance is no excuse. Why did MR.

13 BYRNE refuse to read the covenants and the deed?

14 One must ask what motivated him.

15 Today he has no excuse. If he fails to do so, I

16 believe he is failing to effectively discharge

17 his duties as mayor's agent and should summarily

18 resign. Thank you.

19 MR. BYRNE: Okay, thank you, Mr.

20 Peloquin.

21 MR. PELOQUIN: You're welcome, MR.

22 BYRNE.

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1 MR. BYRNE: I ruled on that already

2 last session about recusing myself. I'm not

3 going to do that.

4 MR. PELOQUIN: I didn't think you

5 would.

6 MR. BYRNE: All right, next citizen.

7 Sir?

8 MR. GLUCK: My name is Ronald Gluck.

9 I'm a citizen of the District of Columbia and

10 have lived here since 1970. And I am a property

11 owner since on and off, but constantly since

12 1994. In order to expedite my testimony, I would

13 like to give you some exhibits.

14 MR. BYRNE, I think the background of

15 the McMillan site and how it came to be

16 transferred to the District of Columbia is

17 adequately documented in the opinion of the DC

18 Circuit Court in Friends of McMillan Park vs. the

19 National Capitol Planning Commission. That

20 opinion is at 968 that's second, 1283 1992.

21 In that opinion, as I understand it,

22 there was a controversy about whether the site

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1 should have been subject to the 106 process under

2 the National Historic Preservation Act. And the

3 outcome of it was that the amendment to the

4 comprehensive plan, as I understand it, was

5 deemed not to be by the Circuit Court an

6 undertaking.

7 But it found that previously the

8 restrictive covenants of the deed that the

9 District of Columbia accepted and paid for, for

10 the land, would adequately protect the way that

11 property might be commercially developed in the

12 future.

13 Now we're in a situation where the

14 District of Columbia wants to ignore its bargain.

15 It made a bargain with the United States pursuant

16 to the process of the National Historic

17 Preservation act with benefits the citizens of

18 the United States, the residents of the District

19 of Columbia, and the immediate residents to this

20 property.

21 They're the ones that were basically

22 intended to benefit by the covenants. So if you

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1 look at the deed and you look at the covenants,

2 it basically identifies standards of the

3 secretary of the interior through rehabilitation

4 and associated guidelines that are to be

5 satisfied by any redevelopment, commercial

6 redevelopment.

7 That doesn't say that any commercial

8 redevelopment is okay, but it has to be

9 commercial development that is in accordance with

10 those standards. It didn't say and in accordance

11 with the District of Columbia Historic

12 Preservation Act, which has an exemption allowing

13 the demolition of historic resources if it's

14 determined that the project is a project of

15 special merit. It doesn't say that.

16 MR. BYRNE: I'm sorry, sir. Your

17 three minutes is up. So if you can summarize,

18 come to a conclusion.

19 MR. GLUCK: Well, the whole purpose of

20 this hearing, to my thinking, is that the deed

21 sets forth the standards, not as modified by the

22 Historic, DC Historic Preservation Act.

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1 And therefore, there can be no

2 undercutting of those standards. DC can make

3 them more stringent, but they can't erode or

4 eviscerate them. Thank you.

5 MR. BYRNE: Thank you. Thank you very

6 much. And there's no objection to receiving

7 these documents?

8 MS. BROWN: No objection.

9 MR. BYRNE: Okay, good. So Mr.

10 Gluck's documents can become part of the record.

11 MR. GLUCK: Thank you.

12 MR. BYRNE: Yes, sir, please identify

13 yourself for the record.

14 MR. GOLDON-WOKOFF: Yes, thank you,

15 MR. BYRNE. My name is Daniel Goldon-Wolkoff.

16 I've been a historic restoration artist and

17 conservator for 40 years. My historic

18 restoration studio, Adams Morgan Stained Glass,

19 has served the DC Architectural and Antique

20 Restoration Community since 1989.

21 I'm here representing McMillan

22 Coalition for Sustainable Agriculture, a

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1 community based group that I would believe would

2 provide me with five minutes.

3 MR. BYRNE: I will do that.

4 MR. GOLDON-WOKOFF: I appreciate that.

5 MR. BYRNE: You represent a group,

6 yes.

7 MR. GOLDON-WOKOFF: Alternative plan,

8 sorry. Alternative plans to preserve and

9 economically redevelop the McMillan site have

10 been prevented, that's a Freudian slip. Have

11 been presented at every step of the process.

12 Community groups, individuals,

13 architecture and planning professionals have

14 presented their ideas to our DC elected appointed

15 representatives who have actively suppressed

16 anything other than the VMP plan.

17 This body, I don't see anybody else

18 wearing the buttons, these are the buttons that

19 applicants paid for and had the District pay for

20 by the Deputy Mayor paid for, $30,000. Where's

21 your buttons, friends?

22 These buttons were provided by a

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1 public relations firm to suppress community

2 opposition to, in their own words, neutralize

3 opposition.

4 Despite and in violation of DC law

5 which states, "The Mayor's Agent must determine

6 that the loss or harm to the historic property is

7 necessary to allow construction of the project of

8 special merit. An applicant for a permit to

9 demolish a historic landmark protected under the

10 Act must demonstrate that it has considered all

11 reasonable alternatives to demolish."

12 The applicant is the last one to be

13 honest or trustworthy, who have been unethical,

14 had the law written for them and rewritten for

15 them, specifically for them. And it is not

16 fixed. It's not fixed. Just because Marion

17 Barry voted for the land surplus and yet died the

18 month before, it's not a fixed process. It's

19 not.

20 Catholic University planning and

21 architecture professor, Miriam Gustovitch

22 presented a PowerPoint and video of a world-class

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1 concept and site design, quite brilliant, of real

2 special merit. And it has been thoroughly

3 ignored.

4 The original Olmstead design for the

5 site would be a fabulous park just like Rock

6 Creek, New York's Central Park, Prospect Park,

7 all by the Olmstead firm. At the July hearing,

8 Professor Byrne himself said drawings of the

9 Olmstead Promenade, the original park, he "it's

10 really quite spectacular." Emily Eig said, "It

11 is quite spectacular."

12 She said in the July hearing, "The

13 reservoir was there, but the actual creation of

14 this as a unified setting with the sand

15 filtration plan is represented in the newly

16 released Olmstead drawings."

17 She continues, "It was an industrial

18 site. It was not a public park. It had a walk

19 around it that the public was invited to walk,"

20 that's called an exercise hub, "and to observe

21 the views across what Olmstead referred to as the

22 plain. He planted trees around the entire walk

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1 as an effort to keep people on the walk."

2 Emily Eig can read the mind of

3 somebody who died in 1920. Pretty good. So it's

4 a tree lined, landscaped promenade, but it's not

5 a park. Okay.

6 McMillan Coalition for Sustainable

7 Agriculture has presented its alternative plan to

8 the City Council, Historic Preservation Review

9 Board, Zoning Commission, Mayor's Agent hearings

10 which achieved special merit and requires no

11 demolition.

12 The complete preservation of the

13 entire great place whose real value, according to

14 Emily Eig, is just that, a coherent, unitary,

15 historic site. Not divided up like a turkey on

16 Thanksgiving.

17 This would conform to the requirements

18 of the covenants agreed to by the D.C. government

19 in 1987 that Mr. Gluck has just explained. The

20 20 acres of underground masonry galleries offer a

21 perfect place for urban agriculture, which is the

22 purpose of our organization, to provide millions

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1 of pounds of food, real training in careers,

2 preserve and adaptively reuse our public

3 resources for public good.

4 That's special merit. And to preserve

5 the entire unitary -- what portion of Rock Creek

6 Park, what portion of Rock Creek Park should we

7 cleave off and develop? You go sell that to the

8 people in Cleveland Park, Chevy Chase. Go ahead.

9 We need a Glen Echo for our children.

10 Glen Echo is a miraculously redeveloped historic

11 site for the people of Bethesda and Potomac.

12 What do they deserve that we don't deserve?

13 Okay, this is the catalogue of 90

14 pages of classes for children and for families,

15 activities, galleries. You can put your wedding

16 there, you can have your events, your catering.

17 Twice a year this catalogue comes out for Glen

18 Echo.

19 In DC, we need a Wolf Trap, Wolf Trap

20 with concerts and outdoor festivals and theater

21 with big, beautiful summer vista views that

22 people can walk to from 14th Street. They can

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1 walk ten blocks. From Brooklyn they can walk ten

2 blocks. From the other neighborhoods. We can

3 walk to this place, we don't need to crowd it

4 with 31,000 cars a day to make profits for EYA.

5 The walkable neighborhoods of EYA,

6 31,000 cars a day, 24,000 mass transit users.

7 Okay, let me finish up.

8 MR. BYRNE: Thank you.

9 MR. GOLDON-WOKOFF: Many alternative

10 plans conform to the secretary's standards which

11 prohibit demolition and subdivision as required

12 in the deed. The VMP plan does not conform to

13 the restrictions of the covenants which runs with

14 the land.

15 No one can unilaterally change the

16 restrictions. Emily Eig tells us the scope as

17 required by the deed, sorry. Now can she show us

18 where the federally signed covenants give VMP

19 their choice to pick what they want to demolish

20 and what they want to preserve in their own

21 clumsy and destructive way like cutting off all

22 the vines. You had no reason to do that. That

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1 was a vindictive --

2 MR. BYRNE: Okay, Mr. Wolkoff, let's,

3 thank you.

4 MR. GOLDON-WOKOFF: All right, I'll

5 submit the rest of my testimony to you.

6 MR. BYRNE: Okay.

7 MR. GOLDON-WOKOFF: Sir, thank you.

8 MR. BYRNE: Yes, thank you. All

9 right, our next speaker, sir. Please identify

10 yourself for the record.

11 MR. ROBINSON: My name is Robert --

12 MR. BYRNE: I'm sorry, one second,

13 please. One second, please. I'm sorry, sir.

14 We'll get right to you in a moment.

15 MS. BROWN: I do have an objection to

16 some of the handouts that Mr. Wolkoff submitted.

17 MR. BYRNE: Okay, I haven't seen them

18 yet.

19 MR. GOLDON-WOKOFF: This is your copy,

20 sir.

21 MR. BYRNE: Okay, go ahead.

22 MS. BROWN: The first document is his

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1 testimony. The second is a page, it looks like

2 it's on Advisory Council of Historic Preservation

3 letterhead. It seems to be pieced together --

4 MR. GOLDON-WOKOFF: It's excerpts.

5 MS. BROWN: And I think without the

6 whole letter, it shouldn't be taken into

7 evidence.

8 MR. GOLDON-WOKOFF: I gave you an

9 excerpt. He has the whole thing.

10 MR. BYRNE: I have the whole what?

11 MR. GOLDON-WOKOFF: The deed.

12 MR. BYRNE: Oh, the deed. I thought

13 she was referring though to this letter.

14 MS. BROWN: The single page.

15 MR. BYRNE: Which seems to be sort of

16 cut.

17 MR. GOLDON-WOKOFF: It's an excerpt.

18 MR. BYRNE: Yes, I believe --

19 MS. BROWN: And that's why I'm

20 objecting to it, because we need to see it in

21 full context.

22 MR. GOLDON-WOKOFF: You have it.

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1 PARTICIPANT: I believe the letter was

2 also an Exhibit in the FONV vs the National

3 Capitol Planning case.

4 MS. BROWN: Regardless, the way it's

5 presented here is incomplete and I would object

6 to it.

7 MR. BYRNE: Right, I think that's

8 fair. I think we have to have a complete

9 document. Mr. Wolkoff, I'll give you an

10 opportunity to submit that to the Office of

11 Planning within the 30 days after --

12 MR. GOLDON-WOKOFF: Is there an

13 opportunity to submit a post-hearing brief?

14 MR. BYRNE: Only for parties.

15 MS. BROWN: And my second objection is

16 to the document that's labeled National Trust for

17 Historic Preservation testimony to the DC City

18 Council. I would think it could be cleared up if

19 Ms. Merritt could confirm that it's actually her

20 testimony, and that it's full and complete.

21 MR. BYRNE: I'm sorry.

22 MS. BROWN: It's the last attachment

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1 to his packet.

2 MR. BYRNE: Okay. Oh, right, okay.

3 Right. Yes, I have it.

4 MS. MERRITT: It might be better for

5 me to submit the actual piece of paper that would

6 have been presented because this is a transcript

7 or something, and it's not in the format that I

8 would have submitted it. So that would be

9 better.

10 MS. BROWN: That would help me out,

11 and I would appreciate it. Again, I don't have a

12 problem with it, that would be helpful.

13 MR. BYRNE: Yes, that sounds good.

14 MR. GOLDON-WOKOFF: Believe me, it

15 would seem that I submit it to the Court was Ms.

16 Merritt's letter to the Historic Preservation

17 Board from the National --

18 MS. MERRITT: I think that's a

19 different document.

20 MR. GOLDON-WOKOFF: Oh, okay.

21 MS. MERRITT: What's the Wolkoff

22 Exhibit purports to be testimony to the DC City

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1 Council. And I certainly did present testimony

2 to the DC City Council. That's a different

3 document than what he's referring to. But I'll

4 provide the original.

5 MR. BYRNE: Okay, give that to --

6 (Simultaneous speaking)

7 MR. BYRNE: All right, sir. Sorry to

8 have interrupted you. Please, identify yourself

9 for the record.

10 MR. ROBINSON: Oh, no. We have to do

11 what we have to do. My name is Mr. Roger

12 Robinson and I am the founder and facilitator of

13 the Mr. Roger Road Show. I would like to take

14 this thing in a different direction.

15 I had some kids put this on me at the

16 Children's Hospital that asked me Mr. Roger, hey,

17 where are all the geese? What happened to the

18 ducks? I said the geese? She said yes, you

19 know, they were over there in the park.

20 I said well you know what, I don't

21 know where they are. You're supposed to know,

22 isn't that what you do? These kids started

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1 hitting me.

2 So I started thinking. I said my

3 goodness, everybody's talking about all these

4 complicated issues that the kids don't know

5 anything about. Then one of them pointed out to

6 me that Wiki has something called Wiki Loves

7 Monuments. The world's largest photography

8 competition is now open to you children.

9 Send your photographs in for your

10 historic site, learn more about our history and

11 win prizes. I never heard about nothing like

12 this. These kids are like hey, Mr. Roger, hey,

13 look here, man. When I get out, hey, can you

14 bring me a picture? I want to send it. I said

15 send it where.

16 Wiki. I don't know anything about

17 that. These kids made me look like I was an

18 idiot. I said we're talking about the reservoir

19 and monuments and all of these things.

20 I said, so then I had a little girl

21 ask me hey, Mr. Roger, that's a monument across

22 the street. How come nobody never does anything

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1 about that? How come it's got weeds and all this

2 stuff.

3 And I said my goodness, I got to get

4 away. These kids are hitting me with some

5 questions and I have no answers. And I know we

6 were all kids at one time. Don't let them get

7 together on you. Mr. Roger had to get hisself, I

8 had to put my road show and start walking around

9 the neighborhood and talking to a few people.

10 Well, I thought I would start at

11 Howard University. When I got to Howard I got

12 some other students that were kids themselves

13 just first year. They were asking me while I was

14 talking to the mother. They wanted to know some

15 things too. So that's what brings me to this.

16 I'm like wait a minute. The people

17 that are children, the ones of the simple minds,

18 how come this is so complicated that I can't

19 answer the question of what happened to the

20 ducks, and actually they're geese.

21 So I said to myself well you know

22 what, what we need to do here from my standpoint

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1 is to reach out and make a way for some of these

2 people to get a simpler version of what this is

3 and where and why.

4 And maybe somebody will send something

5 to Wiki and Wiki will send somebody over here and

6 give us a little assistance to answer questions

7 for some of these children that are sick that are

8 looking out those windows at Children's Hospital

9 of the questions of what happened to the ducks.

10 MR. BYRNE: Thank you, Mr. Roger. I

11 think that you're probably a very warm, friendly

12 presence to those children. Appreciate it.

13 MR. ROBINSON: Well, those kids ran me

14 up in here.

15 MR. BYRNE: All right, well thank you

16 to this group. And then if there are more people

17 who want to give public statements, please come

18 forward.

19 MR. OTTEN: Can we do any cross?

20 MR. BYRNE: No, we don't do cross

21 examination on public statements.

22 MS. FERSTER: We do, often.

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1 MR. BYRNE: No, I don't want to do

2 that. I don't think that's probable.

3 MR. PELOQUIN: Mr. Byrne, I had a

4 couple of acute questions, brief questions for

5 particularly a couple of the witnesses. Just

6 like a brief couple of questions that I had.

7 MR. BYRNE: No, I don't want to do

8 that. I think they had a chance to say what they

9 had to say. I'm happy to have you see the

10 written comments as well. I don't think that

11 public witnesses should be cross examined.

12 MS. FERSTER: I mean, for the record,

13 at the Zoning Commission and other contested case

14 proceedings, all witnesses who testify, even

15 public witnesses, have been cross examined.

16 MR. BYRNE: Thank you.

17 MR. PELOQUIN: MR. BYRNE, I want to

18 thank you for the opportunity for additional

19 statements because I didn't get all the points

20 that I had intended.

21 MR. BYRNE: I'll look forward to

22 seeing them.

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1 MR. PELOQUIN: Thank you.

2 MR. BYRNE: Okay, I've got to sort out

3 your papers as well this week.

4 MR. ROBERTS: If we submitted copies

5 of our testimony to Ms. Jackson, who by the way

6 was extraordinarily helpful, do we need to give

7 you more copies?

8 MR. BYRNE: No.

9 MR. ROBERTS: Thank you.

10 MR. BYRNE: No. She says she makes

11 copies. Send them to you both electronically and

12 in a nice bound edition. All right, let's start

13 at my right. I would ask everyone to first, that

14 everyone have three minutes, to please begin by

15 identifying yourself for the record, and as you

16 do that tell me if you've given me a document.

17 So if you would like to start.

18 MS. DIENER: I gave you a document.

19 MR. BYRNE: Okay.

20 MS. DIENER: Good afternoon, Mr.

21 Mayor's Agent. My name is Robin Diener. I'm the

22 director of the Library Renaissance Project of

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1 DC, and I'm the president of Friends of MLK

2 Library. And -- oh, thank you.

3 I just want to speak to two ways the

4 DMP development plan lacks special merit, in my

5 opinion, and how it could be differently, a

6 question that you seemed to raise on Monday at

7 the last hearing.

8 So way one, no public library. The

9 residents around McMillan requested a public

10 library as listed in the 2002 report from the DC

11 Office of Planning. This public land, closed off

12 to the public for so many years, through no fault

13 of the public, should obviously be developed in

14 part, if not in whole, as a panoply of public

15 purposes.

16 The only public use now planned is for

17 a six acre park which would be just a remnant of

18 the former park, and partly to be taken up with

19 the DC Water project.

20 Also, originally and outrageously,

21 there was planned to be a for-profit recreational

22 facility located on that park which now

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1 fortunately has been changed to a public

2 facility.

3 But where is the library which is the

4 natural adjunct to a rec center, often co-located

5 in the District of Columbia as we see in Chevy

6 Chase where they have a library and a rec center,

7 Northwest One where they have a library, rec

8 center, and a school, Rosedale where they have a

9 library and a rec center, and the exemplary

10 Deanwood which has a library and a rec center,

11 and a couple of schools nearby.

12 Interestingly, not related to the

13 library per se, Deanwood, unlike McMillan, has a

14 Metro stop even though it is not located on or

15 near any major through street or commercial

16 development.

17 Okay, way two that the plan lacks

18 special merit in my opinion is it is not

19 environmentally forward thinking. DMP has

20 proposed the minimum for environmental

21 requirements.

22 Perversely, this may result in a high

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1 LEED rating, whatever that industry self-rating

2 system means. But special merit calls for

3 something above and beyond, something new, or

4 perhaps something old such as the preservation of

5 the green roof that already exists, and which is

6 McMillan Park.

7 The current environmental benefits of

8 McMillan as it exists today in its relatively

9 undeveloped above-ground state will be reduced by

10 building impermeable roads and sidewalks and

11 buildings with only partial green roofs.

12 There's absolutely no environmentally

13 creative architecture such as the type we are

14 seeing coming to the floor every day around the

15 world like the super tree buildings in Milan and

16 Singapore. And just the other day

17 @AmericanForest tweeted about a development in

18 China, and you have pictures attached.

19 And then my last point is how it could

20 be done differently. You had asked about that

21 last week. In fact, we have no concrete

22 examples, and I don't mean that as a pun. We

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1 have no concrete examples of different plans or

2 ideas for McMillan because none were considered

3 under the no-bid, noncompetitive design process.

4 Although advocates and watchdogs have

5 long pointed this out, it wasn't until the DC

6 Auditor reviewed the process at the request of

7 citizens and the DC Council, and then arrived at

8 the same conclusion, no competitive process.

9 Then the DC Council acknowledged, they

10 fully acknowledged the illegal non-competition,

11 and instead of halting the project, exempted

12 itself with regard to McMillan from its own, its

13 very own laws requiring competitive bidding.

14 Finally, when this development

15 proposal fails, and it will fail, it should fail

16 for the reasons I've stated plus many, many more

17 that you've heard, an international competition

18 could easily be advertised immediately based on

19 the more than ample public input that has already

20 been recorded in multiple venues.

21 And then VMP will suffer no harm from

22 this. They're a developer. They're in business

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1 to spend some money to propose things. They

2 don't always get what they propose.

3 They've been paid throughout this

4 process to this point for almost everything

5 they've done as the master developer, and they

6 would be at an advantage in a competition since

7 they have so much knowledge of the situation.

8 And by being in competition with

9 others, they would surely improve the project.

10 Thank you very much for hearing me.

11 MR. BYRNE: Thank you for your

12 comment. All right, next please. Identify

13 yourself.

14 MS. BASTIAN: My name is Nicola

15 Bastian. And I would like to start by thanking

16 the incredible labor of love of all these

17 volunteers who have struggled over more than a

18 quarter century to keep the spirit of this park,

19 of this site alive out of the goodness of their

20 heart, whereas the other side gets paid.

21 I want to acknowledge that as a very

22 important fact in this struggle. Over a quarter

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1 century is a long time for the development of a

2 site. What questions does that raise? It raises

3 for one something that the young ones here may

4 ignore, the materialists may deny, and

5 nevertheless there is a spirit about certain

6 sites.

7 This place has its own spirit. It is

8 the spirit of water. I lived underneath the

9 quarry, I mean I'm sorry, that's where I live

10 now. I lived underneath the park, and my

11 basement got flooded several times.

12 That was before 2001, before the

13 climate is taking more and more drastic forms.

14 Water is a powerful agent. We cannot play with

15 it. It has its own spirit, and this is a place

16 of water.

17 Okay, the other example that I am is a

18 person who exemplifies the invasion or whatever

19 you want to call it of gentrification of

20 development. I have been moved, I moved myself,

21 given the ever increasing rents because of

22 gentrification development.

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1 My last one was Bryant Street, south

2 of the park. The rents started going up as soon

3 as there was talk about this development. It was

4 noticeable. I started with a rent of $900 for a

5 three story building on Bryant Street. Yes,

6 there was such a time.

7 I now live in West Virginia. That is

8 where my development took me because my emphasis

9 happens to be not priority number one making

10 money, but priority number one preserving quality

11 of life, air, and water.

12 I will give the rest of my time to the

13 witnesses here that are much better educated in

14 this matter, as I was absent for quite a while

15 due to the developments in the area, and now I'm

16 back helping this park stay what it is.

17 And I need one more second. The City

18 needs to think about what it is going to do when

19 the waterworks cannot deliver clean water due to

20 environmental impact, or hacking of their

21 facilities.

22 Maybe one day we will need sand

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1 filtration to have some water in the District.

2 Thank you very much.

3 MR. BYRNE: Thank you. Thank you very

4 much. Okay. All right, ma'am again, please

5 identify yourself for the record, let me know if

6 you've handed in a --

7 MS. FLOYD: I have handed in my

8 testimony, and I submitted it to Ms. Jackson and

9 received a receipt on the 7th. I'm Elizabeth Ann

10 Floyd representing the McMillan Advisory Group.

11 We were formed as a non-profit by the

12 District of Columbia, so I request five minutes

13 to speak as an organization.

14 MR. BYRNE: Okay, yes.

15 MS. FLOYD: So according to the

16 founding charter, the MAG "acts as a voice for

17 the community in its interaction with the

18 development partners, and serves as a mechanism

19 for shaping the creation of the master plan for

20 participating in the ongoing dialogue with the

21 development partners.

22 On September 11th, 2014, as part of

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1 the Mayor's Agent's prior hearings concerning the

2 demolition of the site, MAG testimony argued that

3 the vision McMillan partners' master plan does

4 not constitute special merit sufficient to

5 justify the level of demolition required for the

6 proposed project.

7 Since you have my written testimony,

8 I'll just highlight a few issues from it. Do the

9 proposed preservation benefits outweigh the

10 historic preservation harms? The characteristics

11 that will be destroyed by the VMP PUD in the

12 words of HPRV constitute 80 to 90 percent of the

13 site's identified historic features.

14 What is retained, 10, 20 percent, is

15 often compromised. We've heard a lot about the

16 sand filtration cells, and the MAG agrees with

17 many of those comments, but we haven't heard a

18 lot lately about the Olmstead walk.

19 If you'll look at Exhibit Attachment

20 C, you will see a graphic. While the proposed

21 plan retains parts of the Olmstead walk around

22 the perimeter of the site, its historic nature

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1 will be compromised by the following.

2 New interruption a total of six times

3 by new roadways. And disappearing entirely at

4 the northeast corner since the office building is

5 built out to the street.

6 Vistas, we've heard about the

7 destruction of vistas by the above-ground

8 structures. Very little of the existing view

9 sheds will remain, including the views from

10 President Lincoln's Cottage.

11 Fewer preservation benefits than

12 claimed. The park in the south and one retained

13 cell cannot be claimed as a preservation benefit

14 because they are retained for reasons beyond the

15 control of the applicant.

16 The park in the south will remain

17 under District ownership, built with District

18 funds. And one cell is in the control of DC

19 Water for the duration of the project.

20 Two, what are specific architecture

21 land planning or community benefits that

22 individually or collectively make this a project

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1 of special merit?

2 We challenge the idea that this is

3 special merit in terms of exemplary architecture,

4 the townhomes mirror the appearance of other

5 developments, either in construction or already

6 constructed by UIA.

7 No social or other benefits having a

8 high priority for community. We say that because

9 we find that applicant's purported social

10 benefits do not meet the terms of concurrence

11 which preceded allowing VMP to change its role to

12 master developer.

13 The benefits ascribed do not align

14 with the community priorities identified in the

15 summary of recommendations for site

16 revitalization. And the community's conclusions

17 from the revitalization scenarios have been

18 ignored.

19 For example, a minimum of 50 percent

20 to be publically accessible open space, we've

21 heard testimony to that. Use of the stable cells

22 as a historic record.

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1 Undesirable uses for the site noted by

2 the community included large amounts of surface

3 parking, high rise office, high rise residential,

4 and medical hospital facilities.

5 In terms of land use planning, the

6 southern sector of the site and cell cannot be

7 considered part of the project because as stated

8 earlier, they're not under the control of the

9 applicant.

10 Also, the current VMP plans would

11 destroy the coherent tripartite site division,

12 visually presenting a park apparently separate

13 from and merely adjacent to the proposed

14 development.

15 Could an economically viable mixed use

16 development meeting the goals of the

17 comprehensive Plan B constructed on the site with

18 less demolition and no subdivision? No proposals

19 or designs by others were allowed to be brought

20 forth for consideration.

21 The applicant's own engineering study

22 identified several underground vaults, we've seen

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1 those, that do not show damage yet these are

2 proposed for demolition.

3 DMPED has decided that this is seven

4 projects with separate plans for each of the

5 parcels proposed in the subdivision agreement.

6 Thus, applicant has not shown that this would be

7 one comprehensive project that would not require

8 subdivision.

9 Likewise for demolition, without

10 alternative proposals exploring reuse of vaults,

11 none of them, 20 portals slated for destruction,

12 the applicant has presented a one sided argument

13 to the lack of alternatives.

14 Are there reasonable alternatives?

15 The process has not had the benefit of

16 alternative design proposals to compare various

17 strategies, to preserve or repurpose more of the

18 site's numerous historic resources.

19 So the burden of the question is on

20 the Mayor's Agent to request that the applicant

21 show precisely this by requiring, consistent with

22 the Historic Preservation Act, that there be no

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1 viable alternatives. Thank you.

2 MR. BYRNE: Thank you very much. All

3 right, ma'am, you're next.

4 MS. AIKIN: I'm G. Lee Aikin.

5 MR. BYRNE: You need to speak into a

6 microphone that's on. There we go.

7 MS. AIKIN: My name is G. Lee Aikin. I

8 would like to request five minutes as a

9 representative of the DC Statehood Green Party

10 for which I ran as an at large candidate in

11 November.

12 And we have taken McMillan on as a

13 project of special merit that we have contributed

14 time and energy to, myself and others.

15 MR. BYRNE: Fair enough. I'll give

16 you five minutes.

17 MS. AIKIN: Thank you. First of all,

18 I would like to say I came here the day after

19 President Kennedy was elected. So I've seen all

20 the many machinations that the D.C. government

21 has gone through relative to the wishes of the

22 people of this city and have been frequently

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1 disappointed which is why I'm no longer a member

2 of the Democrat party.

3 At any rate, my testimony is long and

4 I have to condense it, so let me do just a brief

5 summary of what I have here and then hit the high

6 points that other people will not.

7 MR. BYRNE: All right. And you're

8 also welcome to submit anything in writing.

9 MS. AIKIN: Pardon?

10 MR. BYRNE: You're also welcome to

11 submit --

12 MS. AIKIN: I have submitted, I

13 submitted it in a slightly different form on the

14 8th, and I have added, or switched around some

15 things in what I turned in today. So you've got

16 everything.

17 First of all, with regard to the

18 issues, I made comments with regard to all four

19 of them. In Part 3, I also submitted some

20 comments regarding the comprehensive plan, Part 7

21 the preservation and historic features element at

22 Secretary of Interior's standards.

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1 Last summer, while running at large

2 for City Council, I was very concerned to find

3 some way to save McMillan Park for all our DC

4 residents. I heard our Mayor was planning to

5 sell it to a no-bid developer for $17 million

6 when it's worth at least $100 million.

7 I realized we pro park people would

8 need to come up with a plan having economic

9 benefits for DC's tax structure. My detailed,

10 illustrated plan, Appendix 1, explains how parts

11 of the underground space could be used for high

12 end wine cellars, and other economically useful

13 and entertaining businesses, stores, and DC

14 service offices and things like libraries and

15 even a water history museum or exhibit.

16 Other ideas like those of the

17 architecture mentioned by Mr. Wolkoff could also

18 be incorporated. And the ideas of Glen Echo and

19 Wolf Trap type events all could be added.

20 And all of this could be constructed

21 in a way that it couldn't be removed which would

22 be a lot easier than a 13 story building which is

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1 going to totally destroy the traffic patterns for

2 the people who live in the area, endanger people

3 being taken to the hospitals in ambulances, and

4 in general just be a disaster for the residents.

5 And the things that could be developed

6 there could be targeted at non-rush hour times so

7 that there would not be further congestion at

8 rush hour, which residences and office buildings

9 would cause.

10 Another idea, Appendix 2, developed by

11 the McMillan Coalition for Sustainable

12 Agriculture, which I'm also a member, proposes

13 growing hydroponic vegetables and fish culture

14 and follows my vision piece. There is no need

15 for poor people in DC to suffer the depravation

16 of local food deserts when so much could be grown

17 and distributed at relatively low costs.

18 In addition, underground production

19 could provide some of the needs of the

20 restaurants and food related businesses described

21 by my blog post. On the subject of blog posts,

22 my blog title, GleeAikin.blogspot.com is listed

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1 there.

2 And two articles I call attention to,

3 one is the finer vision portion that I have taken

4 material out of just now. Secondly, after

5 everything that we have been going through with

6 President Trump and North Korea, it suddenly hit

7 me. My God, what if he launches a nuclear device

8 in our direction.

9 It might not hit us, it might be 30 or

10 40 miles away. But what would we do for the

11 nuclear fallout? And we have a perfect fallout

12 shelter below there. It's covered by three feet

13 of Earth, which is what is recommended for

14 fallout shelters.

15 And the doors and others could be made

16 impermeable so that people, you know, thousands

17 of people could be safe down there. And we

18 should not be destroying 90 percent of it.

19 We are in perilous times, and I have

20 no doubt that within ten years, somebody could do

21 something very ugly, whether it's a downtown

22 dirty nuke, or whether it's some kind of bomb

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1 that if it does not hit us directly, would make

2 this a very, very important shelter for the

3 people to preserve.

4 Let me see, what else do I have here.

5 Okay. Is my time up?

6 MR. BYRNE: Time's up.

7 MS. AIKIN: Okay, perfect timing.

8 MR. BYRNE: Thank you.

9 MS. MCDANIEL: Good afternoon, Mr.

10 Byrne. My name is Betsy McDaniel, I have not

11 submitted testimony. I live on First Street in

12 Bloomingdale, directly south of the McMillan Park

13 Reservoir Historic district.

14 I would just like to list some of the

15 items that I think are proposed as community

16 benefits, and contributing to special merit which

17 I disagree with. A lot of them have already been

18 mentioned, and I'll just note some of the ones I

19 agree with.

20 I'm concerned about the limited green

21 space, the housing situation, the loss of the

22 views. And I asked many times during the

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1 community meetings if we couldn't even have a

2 space of, community space on the top of one of

3 the taller buildings so the public could enjoy

4 the view.

5 Of course, living on First Street, the

6 traffic is impossible right now and there's no

7 mitigation plan for it. Other issues that were

8 just barely touched on, on August 31st of this

9 year Washington DC was named the first lead

10 forward cities platinum certified city in the

11 world.

12 And I think aspiring for gold is,

13 should not be considered special merit. I'm

14 still not clear, it's changed so many times,

15 about what will be private property on the site

16 and what will be maintained as public property.

17 But I'm concerned about the public's

18 right to convene and say, in our age of where we

19 have so many protests, have a protest at the

20 grocery store if necessary, and any kind of

21 signage restrictions.

22 I don't think the recreation center,

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1 it's paid for with my taxes, and there are no, as

2 far as I know, there are no recreation facilities

3 for all the apartments and rowhouses being built

4 there. So I think they're more for them than

5 they are for the existing residents.

6 I'm especially concerned about the

7 loss of the water features that had been promised

8 and, you know, were the pictures of these water

9 features were shown over and over again to the

10 public. And all the blogs covered them.

11 And they've taken them all away now.

12 And I think the only way you can compensate for

13 that is to promise and insist that the McMillan

14 fountain is returned to the site. The statue

15 itself is behind a fence. If you go up to the

16 fence to look at it, you're shooed away by the

17 guard.

18 I think Ms. Eig testified that all the

19 pieces, I have seen them myself, they're numbered

20 down at Fort Washington. I think it should be

21 restored on the site and in an appropriate

22 location.

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1 And just one final thing. As someone

2 who experienced flooding in 2012 and have lived

3 through the First Street tunnel, this summer

4 there was a heavy rain, and I have a sewer

5 manhole cover in my front yard which was jumping

6 up and down.

7 And a neighbor a few blocks down on

8 First Street reported a geyser coming out of a

9 sewer manhole cover. So I don't think adding

10 more sewer and stormwater to my sewer line, even

11 with the First Street tunnel, is a good idea.

12 And even --

13 MR. BYRNE: Your time is up.

14 MS. BASTIAN: She can have the rest of

15 my time.

16 MR. BYRNE: Well, you didn't have a

17 lot. Will you please conclude?

18 MS. MCDANIEL: And just finally, I

19 would like to say, to the people who criticize

20 those of us who fought and bought for this, I

21 think when BMP presented their evolution of the

22 plan, you know, I think a lot of that is due to

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1 the work that we've done insisting that we have

2 more green space, a grocery store.

3 And I think we should be thanked.

4 Thank you.

5 MR. BYRNE: Thank you. Next, please.

6 MR. ROBINSON: Thank you very much.

7 My name is Robert Robinson, and I'm testifying on

8 my personal behalf. I have been following this

9 event since the 1980s. I worked in the Mayor's

10 Office at the time, and in the Council through

11 the '90s.

12 I followed the community's numerous

13 attempts to work with the City to come up with a

14 good idea for the disposition led by people like

15 Tony Norman and communities like Bloomingdale,

16 Eckington, Stronghold, and so forth.

17 I would like to speak first of all to

18 the question of whether or not the Historic

19 Preservation benefits outweigh the harms of this

20 plan. And I would say no, they don't. The harms

21 are clearly in the ascendant here.

22 Regardless of what you think about

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1 whether or not this space was part of the Emerald

2 string of parks, the McMillan sand filtration

3 site and the attended reservoir are a very

4 serene, open space.

5 My wife and I are longtime members of

6 the Trinity University gymnasium, and we like to

7 go in the evening and come by because the sunsets

8 that you can see right at First and Michigan

9 Avenue put the 4th of July fireworks to shame,

10 but in a much more low impact way.

11 And I think those are the types of

12 things that we're losing in Washington, DC. One

13 of the things that we see with many of these

14 developments were natural, great open resources

15 are at stake. For example, the north bank of the

16 Anacostia River along Southeast.

17 If you were a tourist or just a

18 resident from another part of DC, you would not

19 be able to find where the bank of the Anacostia

20 is along M Street southeast. And similarly now,

21 the southwest waterfront, the only way you're

22 going to be able to see the Potomac River is if

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1 you can afford to pay hundreds of dollars a night

2 to live in one of the hotels that are being built

3 there.

4 I think that's not a good use of the

5 public space, particularly for future

6 generations. I also think that in terms of

7 downtown DC, the development is causing almost

8 every vestige of the history and the culture and

9 the people of DC from being lost forever.

10 And I think that although the District

11 government sees economic development purely as

12 benefits for the private sector, we believe that

13 these things are actually, that belong to the

14 public should be something that confer benefits

15 of culture and history into the future. And I

16 don't see that happening here.

17 Secondly, the specific architecture

18 land planning and community benefits that

19 collectively make this project a project of

20 special merit. I would say if you want to see

21 the District government's history of projects of

22 this type, you have to go to something called the

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1 Rhode Island Avenue Shopping Center at 680 Rhode

2 Island Avenue which the City did in the '80s, the

3 Mayor's Office of Economic Development did in the

4 early '80s.

5 And then a couple blocks east of that

6 you have the Rhode Island Avenue Mall, which was

7 built in about 2000. Both of those sites were

8 poorly designed, poorly constructed, and they're

9 on their way now, the one on the north side of

10 Rhode Island in particular, to becoming

11 significant sites of urban blight.

12 I would hate to see this happen to

13 McMillan, but when you look at the plans, it's

14 all too likely that that's where we're headed.

15 MR. BYRNE: Okay sir, I'm afraid

16 you'll have to conclude now. Your time is up.

17 MR. ROBINSON: I submitted my

18 testimony, also talked about the comprehensive

19 plan elements. I don't think that those things

20 have been pursued, but I would like to thank you

21 for giving us this opportunity, and again thanks

22 Ms. Jackson for her courtesy. And good luck.

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1 MR. BYRNE: Appreciate that.

2 MS. HUNTINGTON: I'm Jane Huntington

3 and I'm a 30 year resident of Washington. I

4 first went underground at McMillan in 1998 on a

5 tour conducted by the Sierra Club. And then

6 when, and I've been involved ever since. I

7 wanted to save this absolutely extraordinary

8 property.

9 When the land was transferred from

10 NCR, land transfer to NCRC, NCRC made a

11 presentation to a whole lot of neighbors, and

12 they really didn't know much about what they were

13 doing.

14 Our group, as Tony said, McMillan Park

15 Committee went to Jair Lynch and we discussed

16 alternatives. That was the whole point, to work

17 together. Unfortunately, that fell apart very

18 quickly, and here we are today.

19 I really wanted to work in the

20 nation's capital and be a model for how citizens

21 and the city could work together to save this

22 extraordinary place.

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1 In the ten years since that meeting,

2 since our meetings, other cities have really done

3 some wonderful things, stepping up and saving

4 industrial sites and parks. So needless to say,

5 I'm saying in question number one, the benefits

6 do not outweigh the harm.

7 On question number two, I'll just

8 speak to a couple of my points. A project of

9 special merit would offer educational

10 experiences, history, science, industrial design,

11 architecture, imagination and more. They've all

12 been mentioned. We started out talking about

13 alternatives way back a long time ago.

14 I would also point out Betsy mentioned

15 the water feature. The water feature was brought

16 to us by Dr. Gustovitch in her class. VMP

17 borrowed it, and it looked terrific. And

18 everybody said wow, this is going to be much

19 better. Well, then it was taken off the table I

20 guess for money.

21 A project of special merit would not

22 add to the traffic mix. It would be smart and

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1 futuristic. That's where we are in time, all

2 this fabulous futuristic stuff that's going on in

3 technology.

4 Three, the third issue, I say that the

5 proposed demolition and subdivision are the wrong

6 concept for this years-long, flawed project. The

7 medical office building was added to the mediocre

8 mix about the time that Friends of McMillan Park

9 conducted tours of the park and its fascinating

10 underground.

11 Many people took great interest in

12 preservation and re-purposing. I remember Jeff

13 Miller, a vice president of Trammel Crow, at

14 probably the last tour, pleasant and solicitous

15 before he moved into the DMPED office for a very

16 brief stint as Deputy Mayor of Planning and

17 Economic Development. He ordered a stop to the

18 tours.

19 Regarding number four, I would say

20 that as you know, we've said it over and over

21 again, alternatives have been prohibited from

22 even consideration. I would say that since, I

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1 wrote down here, since the exchange of the land

2 when the city bought it, officials throughout the

3 administrations have varied, Kelly, Barry,

4 Williams, Grey, Bowser, have stubbornly refused

5 to consider options other than development by

6 which they mean destruction and capitalization.

7 If my time is up, that's my summary. I

8 mean, we really started out trying to work

9 together with wonderful ideas for this property.

10 MR. BYRNE: Okay, good. Well thank

11 you, thank you all for being here and for your

12 efforts in trying to make a good decision making

13 process. Do we have another, do we have more

14 members of the public who would like to speak?

15 PARTICIPANT: Before we leave, I would

16 just like to thank you for your patience. I know

17 you're in a difficult position. No matter what

18 you do, somebody's going to hate you.

19 MR. BYRNE: That's very comforting.

20 So, okay. Have we had about all the public

21 witnesses who wish to speak? It looks like we

22 have. All right.

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1 PARTICIPANT: May we still submit --

2 MR. BYRNE: Oh please, yes. If you

3 would like --

4 PARTICIPANT: Not to speak here but to

5 submit --

6 MR. BYRNE: Just to submit papers?

7 PARTICIPANT: Yes.

8 MR. BYRNE: Yes. You will, you'll

9 have a chance to do so within 30 days after I

10 think today. Okay. So I think at this point

11 we're ready for the case of rebuttal. Ms. Brown?

12 MS. BROWN: Thank you, Mr. Byrne. I'm

13 looking at the clock. I'm guessing that we will

14 have about 40, 45 minutes' worth of rebuttal

15 testimony.

16 MR. BYRNE: Sure.

17 MS. BROWN: And before I start, you

18 had asked for some additional information. You

19 wanted some information on the Green Building

20 Council. The updated drawings for the community

21 center, I notice that Mr. Otten had included that

22 on his flash drive. So I won't, unless you want

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1 a hard copy. But they are the May 16 concept

2 plans revised.

3 I do have what was not part of his

4 flash drive, I don't believe, are the HPRB Staff

5 Reports and Actions Taken that I can hand out.

6 And then you had also asked for Mr. Bell to

7 present a list of citations regarding activation.

8 MR. BYRNE: Yes.

9 MS. BROWN: So we'll get those into

10 the record. I'm not handing them out just yet,

11 but we'll get them to you momentarily.

12 I would first like to start with Mr.

13 Len Bogardad, a question of him. And I have some

14 questions about the gentrification and increased

15 housing issues that were brought up on the direct

16 by the opposition.

17 Mr. Bogardad, notwithstanding the DC

18 Court of Appeals Decision, and assuming that the

19 Mayor's Agent is allowed to evaluate adverse

20 impacts such as gentrification and increased

21 housing costs, do you agree that the McMillan

22 project is the cause of gentrification rising

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1 housing prices in the surrounding neighborhoods?

2 MR. BOGARDAD: No, I don't. There's

3 widespread agreement I think that home prices

4 values and rents have been increasing for many

5 years in all the nearby neighborhoods.

6 My conclusion as a real estate market

7 and impact analysis expert with extensive

8 experience understanding DC housing market and

9 neighborhood changes is that McMillan or the

10 plans for it have not been and will not be a

11 significant cause of the price and rent increases

12 in these neighborhoods.

13 There are a number of reasons for

14 this, and they include, and I should say that I'm

15 also going to be submitting a more full version

16 of this testimony so we can keep the time to a

17 reasonable number of minutes.

18 But some of the key reasons include

19 the following, my conclusion. First of all, I

20 looked at Bloomingdale and adjoined park

21 rowhouses that are relatively closer to McMillan,

22 and they've experienced less rapid price

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1 increases than those located farther from

2 McMillan, which tells me that the plans for

3 McMillan were not a significant cause of the

4 price increases that have been occurring for many

5 years in the neighborhood.

6 Ms. Bastian testified today that rents

7 in her area, Bryant Street I guess, went up at

8 about the time the McMillan plans were, I think

9 it's critical to separate causation from

10 correlation. This is an area that's been seeing

11 price increases for a long time.

12 That's one of the reasons that the

13 developers are interested in doing this

14 development is that the market was improving and

15 yes, they've been going up but not because of

16 McMillan.

17 Some other evidence for that, the

18 Catholic University study of changes in

19 Bloomingdale that Brett Williams cited in her

20 testimony includes an extensive discussion of the

21 causes of market and demographic changes in

22 Bloomingdale but does not identify the plans for

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1 McMillan as a cause of these changes. It

2 identifies a lot of other causes that are

3 unrelated to McMillan.

4 Third, my extensive experience

5 analyzing real estate markets in DC tells me that

6 the longstanding destabilization of land values

7 in surrounding neighborhoods is in large part a

8 result of an excess of housing demand relative to

9 supply. And that's consistent with a recent book

10 by Hyra on Shaw and U Street gentrification.

11 And other scholar studies do not

12 attribute gentrification to projects such as the

13 McMillan redevelopment. And the study

14 specifically found no relationship between large

15 scale neighborhood investment projects and

16 changes in nearby rents.

17 MR. BYRNE: Can you give me the author

18 and title of the book in U Street gentrification?

19 MR. BOGARDAD: Sure. And I think have

20 you handed up with this? There is a footnote on

21 the bottom of the testimony.

22 (Simultaneous speaking)

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1 MR. BOGARDAD: It's Derek Hyra, Race,

2 Class, and politics in the Cappuccino City. Is

3 keeping it, asking questions --

4 MS. BROWN: That's all right.

5 MR. BOGARDAD: I did want to comment,

6 I think the second thing you were going to ask me

7 about probably is that Brett Williams assertion

8 that gentrification issues are different in

9 Stronghold than they are in Bloomingdale. And

10 Andrea Rosen made a related statement today about

11 the effects of Chancellor's Rows, it's supposedly

12 on property values in Stronghold.

13 Based on my expertise and experience

14 in real estate market analysis some research that

15 I did during the zoning commission case this is

16 not accurate. Bloomingdale and Stronghold

17 certainly have somewhat demographic

18 characteristics. But home values are increasing

19 rapidly throughout the area on both sides of

20 North Capitol.

21 And I found that regardless of

22 proximity to the McMillan site to developments

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1 such as Chancellor's row in Brooklyn. The home

2 prices have been going up in Bloomingdale direct

3 park by about nine percent per year since 2008,

4 unrelated to any major new developments.

5 I also looked at assessment increases

6 for sample of rowhouses from 2017 to 2018, and

7 they average 7.6 percent on Franklin Street in

8 Stronghold, 9.7 percent on Bryant Street further

9 from Chancellor's row but close to McMillan, and

10 10.2 percent on U Street in Bloomingdale farther

11 from Chancellor's Row and McMillan.

12 I therefore see no credible evidence

13 that Chancellor's Row caused Stronghold's

14 assessment increases, and my opinion is that

15 McMillan will not have a significant impact on

16 nearby assessments over and above the

17 continuation of the established trend of price,

18 assessment, and rent increases.

19 MS. BROWN: And you had some other --

20 MR. BYRNE: Your microphone.

21 MS. BROWN: You had some other prices

22 that you were going to make. If you could

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1 summarize them briefly.

2 MR. BOGARDAD: Sure. There was

3 testimony by several witnesses last week for the

4 OFMP that the laws of supply and demand don't

5 apply to housing markets. This assertion is

6 incorrect.

7 There's no credible basis to conclude

8 that housing is simulated from the supply and

9 demand forces that affect all aspects of our

10 marked economy. Ms. Williams' own 1988 book on

11 Mount Pleasant confirmed that conclusion. And

12 there's a citation in my written testimony about

13 that.

14 Unlike what Mr. Otten said today, new

15 housing at any price level on a vacant site does

16 not cause prices to go up on nearby areas. They

17 may well be prices going up in general in an

18 area, and that's one of the reasons that there's

19 interest in new development, but not the other

20 way around.

21 In fact, I've found in looking at the

22 situation for the zoning commission testimony

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1 that new housing in all price and rent ranges is

2 one of the key steps that can be taken to help

3 mitigate housing price and rent increases.

4 This includes market rate housing and

5 housing for all affordable income levels for

6 families and seniors. A study that I cited in

7 there by Levy found that the production of

8 affordable housing in particular was the key

9 approach to mitigating displacement in the

10 neighborhoods they analyzed.

11 Fourth, I wanted to comment on a

12 statement that Brook Hill made last week that the

13 rents in the affordable units that will be built

14 at McMillan will be so high that they will be

15 "getting very close to excluding all African

16 Americans."

17 And that really is not an accurate

18 statement, 42.4 percent of African American

19 households in the District have incomes of

20 $50,000 or over, which is roughly the income

21 required for 50 percent of AMI units according to

22 Mr. Hill, and 27.5 percent of African Americans

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1 have incomes of $75,000 or over, roughly the

2 income required for 80 percent units.

3 And fifth, Ms. Richards last week

4 incorrectly asserted that my fiscal impact

5 analysis assumed that all taxes on income

6 generated by the McMillan development would be

7 received by the District.

8 I specifically did not assume that.

9 We took account of the estimated number of folks

10 who would be working on site who would live in

11 the District versus out. It only took credit for

12 the income tax by those who would be living and

13 working in the District.

14 I would note that all McMillan

15 residents will be paying income taxes to the

16 District regardless of where they work. So the

17 housing is very beneficial for the District.

18 And I did want to make a couple of

19 points on the testimony today which are not in

20 the written, in my written testimony. Mr. Rodden

21 and Mr. Johnson testified that District costs

22 were not included in our analysis, only revenues.

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1 But in fact I think my statements were

2 clear in my original testimony in the cross

3 examination. But in fact, our analysis does

4 include about $211 million in operating costs for

5 items like some of those they mentioned, police,

6 fire, schools along with $98 million in capital

7 costs for some of the other items they mention.

8 And finally, Mr. Moriarty stated that

9 home prices and rents have increased over the

10 past few years, and that changes, potentially

11 changes the financial situation of what might be

12 built, economically or not.

13 But I think it's also important to

14 recognize that the office market is considerably

15 less strong than was anticipated when this

16 project was originally conceived, and that's

17 going to affect rents on a very critical part of

18 the project as well. So it's not appropriate to

19 just look at the housing aspect of it.

20 MS. BROWN: Thank you. Ready for

21 cross.

22 MS. FERSTER: Thank you. Mr.

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1 Bogardad, you mentioned that you testified before

2 the Zoning Commission on gentrification and

3 displacement issues?

4 MR. BOGARDAD: Yes, on housing market

5 changes. It was all the development right.

6 MS. FERSTER: Okay. And do you recall

7 Dr. Brett Williams also testified on

8 gentrification and displacement at the Zoning

9 Commission?

10 MR. BOGARDAD: Yes I do.

11 MS. FERSTER: And isn't it correct

12 that Dr. Williams was qualified as an expert on

13 gentrification and displacement due to her

14 significant experience and scholarly work in this

15 area?

16 MR. BOGARDAD: I don't remember the

17 specific cause, but she was, the judge accepted

18 her testimony for that, yes.

19 MS. FERSTER: And isn't it correct

20 that you were not accepted as an expert in

21 gentrification and displacement because you lack

22 that specific qualification and experience?

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1 MR. BOGARDAD: I'll let the lawyers

2 argue over it. My understanding is that the

3 judge decided to accept my testimony for its

4 merits and that, I believe, as I elaborated on

5 further and made it clear how well my housing

6 market analysis experience was directly relevant

7 to that question that he certainly seemed to be

8 accepting my testimony.

9 MS. FERSTER: I understood that the

10 Zoning Commission and the Chair of the Zoning

11 Commission accepted your testimony, you were not,

12 isn't it correct, qualified as an expert in

13 gentrification and displacement?

14 MS. BROWN: He answered the question

15 once.

16 MR. BOGARDAD: I answered. I don't

17 consider it to be a specific specialty. But

18 that's --

19 MS. FERSTER: I mean, do you recall?

20 MS. BROWN: He just answered that he

21 would leave it to the lawyers and that he gave

22 you an answer. So I think that it's been asked

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1 and answered, and you can move on.

2 MS. FERSTER: Well, let me ask you,

3 would you like to clarify, Ms. Brown, as a

4 lawyer?

5 MS. BROWN: No, I wouldn't.

6 MS. FERSTER: Okay. Well --

7 MR. BYRNE: The question hangs in the

8 air now.

9 MS. FERSTER: Well, hold on one

10 minute.

11 MR. BYRNE: When I said the question

12 hangs in the air, I thought that it was okay to

13 let it hang in the air.

14 MS. FERSTER: Oh no, I actually have

15 the transcript from the Zoning Commission

16 hearing. So perhaps I can refresh his

17 recollection, or submit it for the record here.

18 MS. BROWN: I'm happy to ask questions

19 of the witness, but I want to make sure that

20 we're done with her cross.

21 MR. BYRNE: I don't think we are.

22 MS. FERSTER: Okay, no. I have a

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1 couple more questions. But I'll come back when I

2 can find the specific provision in the transcript

3 and then I'll submit it for the record.

4 So you noted specifically that your

5 testimony that you did not believe that, I mean,

6 I think your written testimony anyway

7 characterizes your rebuttal as disagreeing with

8 the testimony that supply and demand do not

9 apply, the principles of supply and demand do not

10 apply to housing.

11 Isn't it correct when you heard Mr.

12 Hill's testimony that his testimony was that

13 supply and demand principles took a much longer

14 timeframe to apply as opposed to did not apply.

15 Is that correct, that is --

16 MR. BOGARDAD: I heard something to

17 that effect, yes.

18 MS. FERSTER: Okay. And on your

19 testimony about your disagreement with Mr. Hill's

20 testimony on the question of whether the vision

21 McMillan Partners increase in the housing supply

22 will effectively reduce housing prices in that

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1 area, do you have any specific studies that you

2 can provide that can discuss in a more scholarly

3 or informed way how the principles of supply and

4 demand apply to affect the market prices?

5 MR. BOGARDAD: There are numerous

6 studies and economists who state that it applies

7 directly. In terms of Mr. Hill's quick comment

8 about timing, I would say that the timing, that

9 that's not necessarily correct.

10 In fact, we've seen over the last few

11 years in the District actually that rents have

12 been dropping somewhat, especially in some

13 markets where there have been a lot of added

14 supply, and that we've seen directly an example

15 of that right here in the District very recently.

16 MS. FERSTER: Okay. But in this

17 particular neighborhood of the Bloomingdale, et

18 cetera, you mentioned Chancellor Row for example,

19 and its impact, how many housing units on

20 Chancellor Row are constructed?

21 MR. BOGARDAD: I don't recall the

22 number, hundreds.

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1 MS. FERSTER: Hundreds. And you also

2 recall the testimony that despite the

3 construction of hundreds of housing units on

4 Chancellor Row, very close to McMillan, that

5 housing prices have increased in the McMillan

6 area.

7 MR. BOGARDAD: Yes, let's step back

8 and separate some of the issues that are involved

9 in this. There are various reasons why prices in

10 general and rents in general are going up or not

11 going up, and that's very much driven by supply

12 and demand and there are a lot of reasons why

13 demand in general is increasing in close to

14 downtown areas.

15 I could go into that for a long time,

16 but I won't take all of your time. So I'm not by

17 any means asserting that just because you build

18 new housing you're going to see decreases in

19 prices and rents.

20 All I'm saying is that if you build

21 new housing on vacant sites, you don't tear down

22 any housing, that you are going to have less

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1 impact on, your rents and prices will go up less

2 quickly, that there will be less, you know,

3 somewhat of a mitigating effect at least, if not

4 more, on nearby prices.

5 Not that that's going to solve the

6 problem by any means. I don't think anybody's

7 claimed that. I certainly would not. But the

8 problem is going to be there whether McMillan's

9 developed or not. And if anything, McMillan will

10 help to mitigate that to some extent.

11 MS. FERSTER: So you indicate that

12 home prices have been steadily going up in the

13 surrounding neighborhoods since 2008.

14 MR. BOGARDAD: And before that.

15 That's the data that happened to be available,

16 that 2008.

17 MS. FERSTER: And would you also agree

18 that that increase is greater than the citywide

19 increase in that relative timeframe. You did --

20 MR. BOGARDAD: Yes. As I said,

21 Bloomingdale, LeDroit Park, Stronghold have all

22 been experiencing particularly rapid increases.

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1 And as I also said, that has nothing to do with

2 the fact that there was this possible development

3 of McMillan. There were a lot of other factors.

4 MS. FERSTER: Okay. But isn't it

5 coincidental that in 2008, that's pretty much

6 when the McMillan development became widely

7 publicized as a potential new development?

8 MS. BROWN: I'm going to object. I

9 mean, it's speculation, coincidental, he already

10 gave his answer.

11 MR. BYRNE: It does seem to be beating

12 a horse a bit, Ms. Ferster.

13 MS. FERSTER: Well, I guess I'm

14 hearing you say that there are a lot of different

15 factors. Why don't you specify exactly what

16 those factors were that resulted in the more

17 dramatic increases in housing in the McMillan

18 neighborhood than the citywide increases from

19 beginning in 2008.

20 MR. BOGARDAD: First of all, as I just

21 said two minutes ago, it did not begin in 2008.

22 That happens to be what those particular data

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1 items were --

2 (Simultaneous speaking)

3 MS. FERSTER: Well, let's just talk

4 about your particular data then, this is what you

5 provided.

6 MR. BOGARDAD: Well, but that's not

7 the point. It's been going up for a number of

8 years before that. And I think most of us

9 understand what's been happening with

10 gentrification in the District and the

11 neighborhoods, U Street and H Street and other

12 places that, and many in Adams Morgan long before

13 any new development occurred.

14 This has been an increase in economic

15 activity in the District that has generated a lot

16 of interest in living in the District, especially

17 by people who are interested in living close to

18 work, close to downtown in urban neighborhoods,

19 neighborhoods even closer to downtown have gotten

20 more expensive and have forced people who want to

21 live as close as possible to those areas and

22 could not afford that or did not want to spend

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1 that much to move somewhat further out and they

2 began to gentrify neighborhoods, and those

3 continued one after another, and that's been

4 what's happening.

5 And I'm not claiming that's a good

6 thing or a bad thing. It's a fact and it has

7 nothing to do for the many reasons I said and for

8 other reasons that I testified to before the

9 Zoning Commission, that's a result of a lot of

10 other things that have nothing to do with

11 projects like McMillan, and there's no evidence

12 in all the literature about a project like

13 McMillan causing that.

14 MS. FERSTER: Okay. So let's go back

15 to your statement that in fact housing prices

16 have been increasing before 2008. Can you please

17 describe the relative increase in housing, the

18 percentage increase in housing from say 2000 to

19 2008, and how that compares to the citywide

20 increase?

21 MR. BOGARDAD: I don't have all the

22 data in front of me. The extensive report which

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1 you've seen from the Zoning Commission that I did

2 has data going back, as it happens, to 2003. And

3 that shows significantly more rapid increases in,

4 for example, comparing Bloomingdale to the Dupont

5 Circle which it gentrified earlier, or arguably

6 depending on what part of Dupont Circle, it never

7 got deteriorated or lower income area.

8 And so a more stable area, and you can

9 see that those things were happening well before

10 2008.

11 MS. FERSTER: Okay, I'm going to turn

12 it over to Mr. Otten while I find, look in the

13 transcript for the relevant excerpt. I'm sorry,

14 I'm going to have to -- I'm not going to be able

15 to find it here. This is too big a transcript.

16 I'm going to submit that for the record later on.

17 MS. BROWN: And if I could respond to

18 that specifically, Ms. Ferster did not offer Ms.

19 Brett Williams as an expert on gentrification for

20 this hearing, and that's the only relevant

21 hearing that is before you.

22 MS. FERSTER: Dr. Williams was offered

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1 and accepted as an expert in gentrification and

2 displacement. That was the expertise, and the

3 only expertise, we offered her for. And she was

4 accepted as an expert in gentrification and

5 displacement.

6 MS. BROWN: I don't recall though this

7 gentrification. And I would also just point out,

8 and I would be surprised if we go back I can find

9 the transcript as well.

10 MR. BYRNE: I don't think it really

11 matters one way or another. Gentrification is

12 not, is a topic of urban development, economic

13 sociology, anthropology. It's very complicated

14 but it's not a field, it's a topic.

15 And so I appreciate what Ms. Williams

16 had to say. I understand where Mr. Bogardad is

17 coming from. And I really don't need for myself

18 any clarification about the relevant expertise.

19 MS. FERSTER: Okay. But we will

20 certainly go back into the transcript because you

21 did specifically qualify her as an expert in

22 gentrification and displacement.

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1 MR. OTTEN: Chris Otten for the

2 record. Mr. Bogardad, your rebuttal testimony

3 speaks to the Bloomingdale-LeDroit Park rowhouses

4 relative of closer to McMillan. And you discuss

5 infill developments like McMillan.

6 Can you help me understand how you

7 define infill developments like McMillan? What

8 does that mean to you, that statement?

9 MR. BOGARDAD: It's generally, there's

10 no precise definition, but it's a development

11 that's surrounded by other development that's

12 older and either can be redevelopment or

13 something's been torn down, or just a vacant site

14 that's being developed that's surrounded by other

15 developments.

16 MR. OTTEN: And so infill development

17 can have different sizes?

18 MR. BOGARDAD: I suppose so.

19 MR. OTTEN: So you can have a house or

20 a vacant lot that's the size of a house, 30 by

21 100 versus a 25 acre vacant lot, correct?

22 MR. BOGARDAD: I think it's a matter

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1 of semantics.

2 MR. OTTEN: All right, I'm trying to

3 understand infill developments. You're saying

4 that, I guess to that point, mentioning the

5 rowhouses relatively closer to McMillan, is it

6 your understanding that there's about 200

7 rowhouses immediately adjacent to McMillan along

8 Bryant and North Cap?

9 MR. BOGARDAD: I haven't counted them.

10 There are a number.

11 MR. OTTEN: Okay. And this infill

12 project as you describe it, is going to be

13 plunking down about 600 residential units?

14 MR. BOGARDAD: Yes.

15 MR. OTTEN: Okay. You mention housing

16 demand and its relation to economic activity. By

17 economic activity, you're talking about kind of

18 the jobs and people wanting to move into the city

19 to be closer to their jobs, proximity to jobs, is

20 that part of the economic activity you're talking

21 about, jobs?

22 MR. BOGARDAD: Yes.

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1 MR. OTTEN: So jobs is, would it be

2 fair to say, directly related to the housing

3 demand you're talking about in terms of the

4 supply and demand issue?

5 MR. BOGARDAD: As I said a few minutes

6 ago, it's one of the elements of demand.

7 MR. OTTEN: Did you do any studies on

8 the number of jobs locally that's in the area

9 right now that's fueling this demand?

10 MR. BOGARDAD: Not a study. I'm aware

11 of job growth in the District over the last

12 number of years, the health of that market in a

13 number of those years relative to the rest of the

14 country.

15 MR. OTTEN: And so as more jobs come

16 online in the District, housing demand of I

17 understand your logic right is going to go up.

18 MR. BOGARDAD: All things being equal.

19 MR. OTTEN: And so in this project, do

20 you know how many jobs this project will create,

21 permanent jobs?

22 MR. BOGARDAD: Let's see, an estimate.

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1 About 3,000.

2 MR. OTTEN: And is it fair to say then

3 by your logic, wouldn't that amount of jobs also

4 increase housing demand in the area?

5 MR. BOGARDAD: It's at the margin it

6 might. That's one of the small number of jobs

7 relative to overall job growth in the district

8 and in downtown. So it's, but might increase it

9 a little bit. I think it's a very good trade off

10 if it does.

11 MR. OTTEN: So it's fair to say that

12 this project in and of itself by the creation of

13 the jobs will also increase the housing demand in

14 the area?

15 (Off-microphone comments)

16 MR. OTTEN: I want to understand, you

17 said you pulled into in your financial analysis

18 the operating costs that this project will

19 generate on to the City. How did you devise

20 these costs?

21 MR. BOGARDAD: As I discussed in the

22 original cross exam and answering the Mayor's

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1 Agent, this was a conservative estimate. I think

2 it probably overstates it, but it takes all of

3 the budget costs of the District and allocates

4 them among by person and by job, and sorts them

5 out by person and, you know, residential and non-

6 residential and then applies that to the expected

7 job and residential growth in the area of the

8 particular development.

9 MR. OTTEN: And to your knowledge, did

10 you see any studies by DMPED or any of the City

11 agencies involved in this regarding an increase

12 in the number of schools that handle the housing

13 demand, or libraries, or any of these types of

14 public community facilities?

15 MR. BOGARDAD: School costs and things

16 of that sort were included in this. It's

17 included in the fiscal impact analysis.

18 MR. OTTEN: But that's your own, you

19 didn't pull that from any agency reports or

20 anything like that?

21 MR. BOGARDAD: We didn't, and it was

22 originally done by Green Door Advisors.

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1 MR. OTTEN: Okay.

2 MS. BROWN: And I'm going to object

3 because a lot of this seems to be more on his

4 direct testimony instead of his rebuttal

5 testimony.

6 MR. OTTEN: This is what he just

7 testified to, Ms. Brown. I wrote it down just

8 now, what he just testified to.

9 MR. BYRNE: He just testified to?

10 MR. OTTEN: The costs, how he related

11 --

12 MR. BYRNE: How did he relate to the

13 costs?

14 MS. BROWN: Yes, that he did.

15 MR. OTTEN: Yes, so that's what I'm

16 getting to on this cross. So I just want to

17 understand this because this is such a critical

18 piece to the District. It is your opinion that

19 we are in an affordability housing crisis,

20 correct?

21 MR. BOGARDAD: Yes, it's definitely an

22 issue in the District.

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1 MR. OTTEN: And is it your, just so I

2 understand the supply and demand metric that

3 you're imposing on housing. Is it your position

4 that if developers of large infill projects such

5 as this are given entitlements to build more,

6 more air rights, and increases to build more

7 housing, they will then in turn reduce the cost

8 of that price, of that housing?

9 MR. BOGARDAD: I'm not making any

10 claim that they would specifically decrease that.

11 I'm saying that the added supply where you're not

12 tearing anything down to build it is going to,

13 all things being equal, result in lower price

14 increases than you would have otherwise.

15 MR. OTTEN: When does that come down?

16 When does the price of the housing come down?

17 MR. BOGARDAD: I didn't say it would

18 come down. It will probably continue to go up.

19 It will probably immediately start to go up a

20 little bit less fast.

21 MR. OTTEN: And is it your position

22 that since the whole city and even areas around

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1 the site are trending up in prices, that the city

2 should not seek to protect neighbors around these

3 large projects from land value destabilization?

4 MR. BOGARDAD: I don't think they're

5 at risk from that because of this project.

6 Again, this will suck up some of the demand of

7 those who want to live in that neighborhood and

8 choose to live in the new house rather than

9 existing house.

10 And if anything, by some margin

11 decrease the demand for the housing they're

12 buying and therefore have somewhat lower housing

13 price increases than you would otherwise have.

14 MR. OTTEN: And wouldn't you agree

15 that those people who might move on or the folks

16 who live around McMillan site, some of them are

17 probably more vulnerable to displacement than

18 others.

19 MR. BOGARDAD: Yes, but not because of

20 McMillan. There are already people moving, and

21 some people are moving as the Catholic University

22 report cited, some people are moving out of

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1 choice because they can actually sell their house

2 for a lot of money and choose to use that money

3 for some other locations.

4 MR. OTTEN: Okay. So with you

5 testifying that the 600 houses now isn't going to

6 do much either way in terms of increasing price

7 or reducing housing costs, what number would you

8 figure would achieve that? In other words, a

9 reduction of the housing demand in the area. Is

10 it 1,000 units, is it 10,000 units --

11 MR. BOGARDAD: There's no way to say a

12 specific number. It's all additive. The more,

13 one of the main arguments that's being made about

14 the cost of housing cost increases in the

15 District which I think is true and we're seeing

16 it even more so in places like San Francisco is

17 that it's become so difficult to get approvals

18 for new housing.

19 And the more this can happen on

20 multiple sites, the less problem we'll have.

21 MR. OTTEN: Just two quick questions

22 here. So what is the value, the land value now?

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1 Did you look at that?

2 MR. BOGARDAD: No, I didn't.

3 MR. OTTEN: Okay. But is it fair to

4 say that after this project may be approved, that

5 the land value will go up for McMillan park, the

6 value of the land.

7 MR. BOGARDAD: Depends on how you

8 valued the original.

9 MR. OTTEN: Just by the improvements.

10 MS. BROWN: Objection. This does go

11 beyond his rebuttal testimony.

12 MR. BYRNE: It does actually go

13 beyond.

14 MR. OTTEN: I guess I'm trying to

15 understand he's making the claim that the, that

16 this project will not increase land values in the

17 surrounding District, and that's why I'm trying

18 to understand if he's equated that or calculated

19 in how the value of the land will increase now.

20 From now.

21 MR. BYRNE: Of the land that's being

22 developed?

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1 MR. OTTEN: Right.

2 MR. BYRNE: Well, of course it will

3 increases the value. I mean, if it has

4 infrastructure and it's an improved development,

5 then it's very valuable.

6 MR. OTTEN: And so I guess what I'm

7 asking is in this immediately surrounding areas,

8 you're saying that that land value increase will

9 not impact the land values of the area?

10 MS. BROWN: And again, I thought you

11 just ruled on, I mean, you all had a dialogue and

12 you answered his question. He's following up

13 your answer, but it still wasn't part of his

14 rebuttal.

15 MR. BYRNE: Maybe I'm being cross

16 examined. But go ahead and answer the question.

17 MR. BOGARDAD: I think I already

18 answered that, but I don't believe that it will

19 have a significant impact on housing prices in

20 the nearby area, or land values that are

21 underlying that.

22 MR. OTTEN: But you do not have any of

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1 the census tract demographics of who lives around

2 in the area?

3 MR. BOGARDAD: I looked through lots

4 of the demographics. I don't think it answers

5 the question, has anything to do with the answer

6 to the question of demand.

7 MR. OTTEN: And your supply and demand

8 calculus, is that an instant metric? So in other

9 words, if you build, if you immediately build

10 more housing, I mean, if you build more housing

11 and immediately the housing price or pressures

12 will come down? Is that instant?

13 MS. BROWN: He already answered that.

14 MR. BYRNE: Yes, I would --

15 MR. OTTEN: I don't understand the

16 timing of it though because --

17 MR. BYRNE: Well, it's just a market

18 thing. It depends on the market, it adjusts to

19 the use supply, and I don't know --

20 MS. FERSTER: I think you should

21 answer that question.

22 MR. BOGARDAD: Okay, and I think I did

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1 answer it. I think it will start, it does start

2 immediately. It starts even when it's somewhat

3 of a known quantity. It basically starts

4 whenever those who might be considering buying or

5 renting in that neighborhood see that there are

6 other alternatives and there are some more

7 choices that they have.

8 MR. OTTEN: And you heard the

9 examination of my expert witness earlier about

10 the congestion and the air quality health

11 impacts. Does that have a fiscal negative impact

12 on the surrounding area.

13 MR. BOGARDAD: I don't think you're

14 going to have --

15 MS. BROWN: Objection, objection.

16 MR. OTTEN: He did the fiscal study.

17 MS. BROWN: Objection.

18 MR. BYRNE: Right. You're cross

19 examining him about your witness' testimony.

20 MR. OTTEN: I'm asking him whether or

21 not --

22 MS. BROWN: He didn't testify to that

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1 on --

2 MR. OTTEN: His fiscal analysis does a

3 study on this. And so I want to understand the

4 negative side. He talks about how it's going to

5 --

6 MR. BYRNE: You can ask him if he took

7 it into account.

8 MR. OTTEN: Okay. Did you take into

9 account some of the negative pressures, or

10 negative impacts that will impact the land values

11 in the area?

12 MR. BOGARDAD: I don't believe there

13 will be negative impacts. I think it's ironic

14 that somehow we're hearing both, you know, on one

15 hand it's going to change, increase values. On

16 the other hand it's going to lower values. I

17 mean, those things horrible aren't going to

18 happen.

19 MR. OTTEN: So when you hear the term

20 land value destabilization, couldn't that go

21 either direction?

22 MR. BOGARDAD: It could. But I think

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1 the issue in this area is that the prices are

2 already going up.

3 MR. OTTEN: And so just because prices

4 are going up generally, we shouldn't do anything

5 to protect the people around the site? That

6 might be more vulnerable.

7 MR. BOGARDAD: I really don't think

8 they're at risk of losses because of this.

9 MR. OTTEN: Okay, thank you.

10 MS. FERSTER: I have another follow

11 up.

12 MS. BROWN: I thought she was done.

13 MS. FERSTER: I actually wasn't quite

14 done. I was taking time to look at --

15 (Simultaneous speaking)

16 MS. FERSTER: I would ask for your

17 indulgence for another --

18 MS. BROWN: No, she had her chance.

19 MR. BYRNE: You said you were done.

20 MS. BROWN: Yes.

21 MS. FERSTER: Can I please ask another

22 --

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1 (Simultaneous speaking)

2 MS. BROWN: -- getting late in the day

3 --

4 MR. BYRNE: It is getting late.

5 MS. BROWN: -- and I don't --

6 MS. FERSTER: I will be brief.

7 MR. BYRNE: Go ahead.

8 MS. FERSTER: I will be brief.

9 MR. BYRNE: Let's just --

10 (Simultaneous speaking)

11 MS. FERSTER: Okay. And I would ask

12 you please be courteous, Ms. Brown. Okay, in

13 your testimony, you had said that you regulate

14 and analyze the causes of and predict property

15 value increases.

16 So I wanted to ask you about that

17 because Mr. Vining did testify that when his

18 property assessment increased and he challenged

19 it, and before the Office of Tax and Revenue, and

20 had a hearing, Mr. Vining testified that he was

21 specifically told by the OTR Officer who reviewed

22 his challenge that the value of the Chancellor

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1 Row townhouses within the same cluster for tax

2 purposes was the result of his tax increases.

3 And so would you agree that OTR does

4 take into account the new development and the tax

5 assessment of new development in neighboring

6 property assessments?

7 MR. BOGARDAD: Actually, I think that

8 was, I don't know whether that was what the

9 person really said of course.

10 MS. BROWN: I have an objection to the

11 question because he didn't testify anything about

12 OTR.

13 MR. BYRNE: Right.

14 MS. BROWN: It's just --

15 (Simultaneous speaking)

16 MS. FERSTER: He did say I regularly

17 analyze the causes of specific property value

18 increases.

19 MR. BYRNE: Right. But what OTR's

20 practice is in making the property assessment --

21 MS. BROWN: On a --

22 MR. BYRNE: -- is not something he can

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1 have any, he just has not claimed to have any

2 knowledge of --

3 MS. BROWN: And specific case to Mr.

4 Vining. How could he possibly know.

5 MR. BYRNE: I think that's right. I

6 don't think that's very fruitful.

7 MS. FERSTER: Okay. You're sustaining

8 the objection?

9 MR. BYRNE: I am.

10 MS. FERSTER: So, then generally, on

11 the causes, when you talk about the causes and

12 prediction of property value increases, do you,

13 in your expert judgment, does D.C. tax

14 assessments ever affect the value of property in

15 the market?

16 MR. MORIARTY: Typically it works the

17 other way. The values are changing, and the

18 assessors take that into account.

19 MS. FERSTER: Okay. So, the answer's

20 yes?

21 MR. MORIARTY: No. The answer's no.

22 MS. FERSTER: Okay. So, the tax

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1 assessments, it doesn't matter what the tax

2 assessment is? It doesn't --

3 MS. BROWN: Judge, argumentative. He

4 answered --

5 MS. FERSTER: I'm just getting --

6 MS. BROWN: -- the question.

7 MS. FERSTER: -- a clarification.

8 MR. BYRNE: Well, let's, I think we're

9 almost at the end. Go ahead.

10 MS. BROWN: I don't know.

11 MS. FERSTER: It's a clarification.

12 MR. MORIARTY: The taxes, the tax

13 assessments are generally quite accurately

14 reflecting what the market is. People are buying

15 based on their desire to buy there, their

16 recognition of what the prices are.

17 They recognize, they should be

18 recognizing, and usually are, that if their

19 area's increasing in value, the assessments are

20 going to go up.

21 MS. FERSTER: Okay. Okay, thank you.

22 Yes, okay. And I --

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1 MR. BYRNE: Okay. Next witness.

2 MS. BROWN: Our next witness is Ms.

3 Eig. I just have a quick question to start, and

4 then I'll let you just get into it a bit. You

5 worked, you heard Ms. Richards' testimony about

6 the Columbia Hospital for Women, and having a

7 special, or a community benefit package. Did you

8 work on that project?

9 MS. EIG: I did, yes.

10 MS. BROWN: And did it go to the

11 Mayor's Agent for review?

12 MS. EIG: It did not go to the Mayor's

13 Agent.

14 MS. BROWN: And are you aware of what

15 that $2 to $3 million dollar community benefit

16 package was that you referred to?

17 MS. EIG: Generally, yes.

18 MS. BROWN: And it was?

19 MS. EIG: It was related to the Foggy

20 Bottom Association, and commissions that they had

21 on the site that were removed by virtue of this

22 payment between the developer and the Foggy

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1 Bottom Association.

2 MS. BROWN: You heard testimony from

3 Mr. Steve Hansen that the, that your 2016

4 Historic Preservation Plan represented

5 preservation tokenism. Do you agree with that?

6 MS. EIG: Absolutely not. His

7 evaluation of the 2016 Historic Preservation Plan

8 demonstrates that he had no understanding of the

9 purpose of that report.

10 The Preservation Plan was prepared

11 following the HPRB and Mayor's Agent's approval.

12 And provided guidance as to the conservation

13 treatment of the materials of the resources that

14 had been approved for preservation.

15 His attempt to characterize the report

16 as one that recommended which component should

17 remain on the site is simply wrong. It was

18 prepared to guide the preservation, protection,

19 and adaptive reuse of those resources that had

20 been identified to be preserved as the project

21 moved into the implementation phase. As you

22 know, it was not prepared until after the Mayor's

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1 Agent approval.

2 MS. BROWN: He also testified that the

3 project was incompatible with the land market.

4 And he said it eviscerates the setting of the

5 above ground resources, and that the buildings

6 are cookie-cutter. Do you agree with this

7 statement?

8 MS. EIG: I do not agree with Mr.

9 Hanson's evaluation of the plan or related

10 architecture. And I have several reasons.

11 First, he was conducting a design

12 critique that would have been more appropriate

13 before the Historic Preservation Review Board

14 when they were considering the project as part of

15 the review and approval process.

16 The HPRB gave extensive consideration

17 to the points he raised, including the historic

18 resources, open space, the setting, the design of

19 the buildings, when they reviewed it prior to

20 going to the Mayor's Agent and approved the

21 project.

22 It is important to know that they had

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1 received the 2014 final version of my 2010

2 report. That was a final draft which Mr. Norman

3 misunderstood that actually was available to the

4 project team from 2010 on, but was not made

5 public until 2014.

6 But my point is that the Review Board

7 had all that information. They had my

8 recommendation for the evaluations. How they

9 chose to use it was their decisions, their

10 decision. It was, and I think it's very

11 important that they had that information

12 available.

13 But we can also discuss about the

14 designs. The initial concept designs that were

15 presented to the Review Board lacked cohesion.

16 And the Board was quite clear about that.

17 With the exception of Matt Bell's

18 design for the community center, which was

19 recognized from the onset as an outstanding work

20 that related to the site and the landmark, the

21 early versions of the designs did not receive the

22 Board's support.

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1 This lack of cohesion manifested

2 itself in several ways. Obviously, designs that

3 did not seem to reflect the character of the site

4 were criticized. But there was also a problem

5 with being too tied to the visual appearance of

6 the site.

7 And I think it's important that we

8 understand this. This was seen as David

9 Jameson's concept design for the grocery and

10 multi-family building. Mr. Jameson is a very

11 talented and well regarded Washington architect.

12 And his innovative design was based on

13 his interpretation of a significant aspect of

14 this site's visual appearance. It was a double X

15 form. However, the form of the design concept

16 was considered to be too strong. It simply would

17 have attracted too much attention away from the

18 site and the greater landmarks.

19 The Review Board guided the architects

20 towards an architecture that would be referential

21 to the site and the greater landmark, enhance its

22 identify while allowing it to be adapted for use.

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1 To be blunt, this is not cookie-cutter

2 architecture.

3 To even suggest this shows the lack of

4 understanding of the design process this project

5 has endured. It is the product of years of work

6 that required the incorporation of ideas from the

7 team, from the community, the Historic

8 Preservation Office, and the Review Board.

9 It's a product of years of coming up

10 with ideas, with alternatives, with revisions to

11 those ideas and alternatives. Considering and

12 integrating constructive criticism, redesigning.

13 And all the while coordinating with

14 the other architectural firms, all with the

15 intention of designing a new place that would

16 contribute to the city while honoring the

17 landmark.

18 And everything that I said there does

19 not even touch the aspect of how it was going to

20 actually work with the conditions of the site,

21 and the energy and environmental requirements,

22 all these things that were layered on top of

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1 these designs.

2 The rest of his comments are on the

3 service courts. I already described in my direct

4 testimony the changes to the townhouse, the

5 reorientation design, evolution, change to the

6 park, the plan.

7 There was intensive study of the

8 siting of the buildings within the site. The

9 buildings along the north service court actually

10 were set back. The Review Board encouraged them

11 to be set back further, which was done. So that

12 there would be sufficient space to either side of

13 the court.

14 It was not an evisceration. It was

15 simply not, to say that he just doesn't

16 understand the challenge that this project

17 required.

18 The size of these forms, and the

19 amount of space that there is to either site,

20 which would allow there to be a smooth flow

21 through the site to the north, as well as to the

22 south.

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1 And fourth, because of this extensive

2 HPR review we have an exemplary design. It is

3 important to remember that exemplary architecture

4 is not limited to the design a single building.

5 There's a project design here.

6 It is place making, cohesion of

7 design. Its harmonious presentation of forms,

8 material, color, landscape, and everything is

9 here.

10 It is important to remember also that

11 in the October 2013 the Review Board approved the

12 design. Finding, among other things, that it

13 retained important character finding features of

14 the site sufficient to convey its historic

15 characteristics.

16 And that the concept designs

17 represented the very high quality, cohesiveness,

18 and distinctiveness that specifically related to

19 the character of McMillan site, which met the

20 very goals that they sought for that greater

21 landmark. That that was, those qualifiers were

22 from their actual report.

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1 MS. BROWN: You heard the testimony of

2 Ms. Rebecca Miller of the D.C. Preservation

3 League, that the Mayor's Agent should apply the

4 definition of exemplary architecture that David

5 Maloney used in the CMP Telephone case. Do you

6 agree with that approach?

7 MS. EIG: No. First, I think it

8 should be up to the Mayor's Agent to decide what

9 constitutes exemplary architecture. The law does

10 not go into great depths. And it's clear that it

11 is an assessment of the case, in my mind.

12 Second, I think Mr. Maloney's

13 definition was far too narrow in scope.

14 Specifically his reference was to world class

15 architecture, with projects financed by large

16 institutional applicants.

17 I don't think that is a large enough

18 definition of exemplary architecture, to say that

19 it had to be financed by large institutional

20 applicants in order to meet exemplary

21 architecture.

22 Third, I think we should look to the

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1 precedent set by the Mayor's Agent decisions,

2 where projects were found to be ones of exemplary

3 architecture.

4 I'm not going to go into all of those.

5 But they were, clearly they were not projects

6 that were necessarily financed by large

7 institutional applicants.

8 They weren't necessarily, or what you

9 would call world class projects. But in each

10 case the Mayor's Agent explained why those

11 particular projects met the exemplary definition.

12 It's interesting I think to discuss

13 David Jameson again. Because in that case he had

14 exactly the kind of buildings, this really bold

15 building that just would stand out by itself

16 along in that site. And that was considered to

17 be not the right approach for this site.

18 The exceptional quality of it

19 incorporated key design principles. But the

20 Review Board was very clear that they wanted

21 quieter, less bold buildings, that would allow

22 the landmark to be the outstanding component of

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1 the entire site.

2 The development team worked

3 consciously to create a plan that would lead to

4 that. And so that the qualities that I think

5 that are, I can go into what I think exemplary

6 architecture in this case would be. But I think

7 the point is that it is a much more each

8 individual case to define that.

9 MS. BROWN: Thank you. Ms. Miller

10 also referred to Mr. Maloney's testimony in the

11 CMP Telephone case, excuse me, on why in his

12 opinion that project was not consistent with the

13 purposes of the Act.

14 According to Ms. Miller, Mr. Maloney

15 said that a project that demolished approximately

16 50 percent of a building was not consistent with

17 the Act. Do you believe that's an accurate

18 portrayal of that case in his testimony?

19 MS. EIG: Didn't, the Mayor's Agent

20 did not address that in the decision at all. It

21 was just not mentioned. The, and in fact, the

22 decision was, the project was approved for a

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1 special merit.

2 MR. BYRNE: This is CMP Telephone

3 you're talking about?

4 MS. EIG: CMP. There were actually

5 two CMP Telephone projects by different owners.

6 This is the first case, that that was -- The

7 second one actually was constructed.

8 MS. BROWN: You've heard different

9 estimates from the opponents on the amount of

10 demolition that is occurring on the site. What

11 is your estimate of the amount of demolition

12 occurring at the 92 acre landmark site?

13 MS. EIG: Okay. The, that's a very

14 good question. And I think that we are

15 forgetting often as we discuss this, that we all

16 forget that the landmark is 92 acres. It's the

17 entire site on both sides of First Street.

18 And this portion of it is 24.9 acres.

19 So, it's only 27 percent of the entire landmark,

20 which if my math is correct, that if we demolish

21 everything on that McMillan site that we're

22 discussing today, that we couldn't reach 50

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1 percent of the demolition.

2 And in fact, by demolishing

3 everything, which we are not proposing by any

4 means, we would still leave more than 73 percent

5 of that landmark intact.

6 So, it's just a, with the kind of

7 project that this is, the kind of landmark that

8 this is, there is, it's just kind of a false

9 avenue to go down, to discuss percentages.

10 Because it is so complex, and it includes, it's

11 so many parts, and on two sides of the street.

12 So there, also to remember that we

13 have, there are nine original filter beds on the

14 west side of First Street, as well as the

15 original 20. Now there are 18. So, the major

16 demolition obviously is of these underground

17 cells.

18 And while we are proposing to demolish

19 them, that is why we're here. But I think that

20 the result is that the McMillan Park has a very

21 large percentage of retention, even though we're

22 here before you.

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1 MS. BROWN: The Friends of McMillan's

2 expert, Claudia Barragan, testified that in her

3 opinion as an urban planner that the McMillan

4 project was not special merit, and was not good

5 adaptive reuse. And she compared it to St.

6 Elizabeths. Do you agree with her testimony?

7 And why or why not?

8 MS. EIG: No. As I said, comparing

9 this landmark with any other landmark or historic

10 district in the District of Columbia is very

11 difficult, if not almost impossible. With that

12 said, I actually looked at that, and how it could

13 be compared.

14 From first, like McMillan, one part of

15 the, in that case district, is owned by the

16 District of Columbia. And the other part, on the

17 other side of the street, is the federal

18 government, similar to McMillan.

19 The review, however, of the federally

20 owned property is based on the National Historic

21 Preservation Act, and requires a Section 106

22 consultation process that is managed by the

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1 federal agency in cooperation with the Advisory

2 Council on Historic Preservation, the State

3 Historic Preservation Office.

4 And I'll say it, repeat again.

5 Consultation process, and not an approval

6 process.

7 The review process for the District

8 owned property follows the D.C. Historic Landmark

9 and Historic District Protection Act, which calls

10 for the Review Board and the Mayor's Agent to

11 address the relevant issues at a formal hearing.

12 It is the Mayor's Agent in the case

13 of, if demolition is involved that holds the

14 final approval to the permits. And actually, the

15 Mayor's Agent does actually sign off on all

16 permits. But we won't go into that complicated

17 issue.

18 But unlike McMillan, St. Elizabeths

19 was built as a mental health hospital, designed

20 and built for human habitation. McMillan's sand

21 filtration site is part of an industrial site

22 that utilize below ground, unreinforced concrete

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1 structure designed to hold sand and water that

2 provided purification of the District's water

3 system.

4 Further, the development and

5 demolition plan for St. Elizabeths is complicated

6 by the individual office use of the west campus

7 by Homeland Security, which is the District's

8 plan on the east side for commercial, office,

9 retail, recreational, and residential plans.

10 Like McMillan new buildings have and will

11 continue to be built on both campuses.

12 Many of the buildings at St.

13 Elizabeths will be rehabilitated. And some

14 deteriorated buildings will be demolished. But

15 I'm not sure that is very understood, that

16 numerous buildings that are neither deteriorated

17 nor structurally unsound are also slated for

18 demolition to allow for future development.

19 It is a very complex plan. And it is,

20 the buildings that are occupiable, not like

21 McMillan.

22 But unlike St. Elizabeths the McMillan

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1 site has been planned, and is being designed

2 holistically in its architecture, its landscape,

3 and its uses. From my vantage point, to try to

4 compare these projects is a meaningless exercise.

5 However, if we limit that comparison

6 to the anticipation of final project product we

7 can say that McMillan has a far greater potential

8 for success as to its contribution to the

9 preservation of the site's visual beauty and

10 identity, with the inclusion of open spaces, a

11 public park, and the reconstruction of the

12 pedestrian perimeter walk available to the

13 public, as it will be accessible, and include

14 meaningful active and passive educational

15 interpretation of the landmark, which seems to

16 have been, is not known apparently to the people

17 who were testifying today.

18 There is an extensive educational

19 program that focuses on an understanding of water

20 in general, and the D.C. water system. As I

21 said, active and passive interpretation,

22 including the specific use of a cell for

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1 exhibition and education about the filtration

2 plant and the system, which is something that Ms.

3 Sellin's testimony referenced was needed.

4 But it is in fact included. And the

5 retention and adaptive use of the individual

6 resources that will enhance the character

7 defining features, and provide an overall

8 understanding of the landmark.

9 Through that simple comparison the

10 special merit of McMillan Park becomes obvious.

11 And it's the holistic aspect of it that St.

12 Elizabeths has never actually achieved.

13 So, to sum up, I don't agree with Ms.

14 Barragan's testimony. She did not change my

15 position as to the preservation net benefits of

16 the project. I think that there are more

17 preservation benefits than there is not.

18 MS. BROWN: And you heard Ms. Sellin's

19 testimony today. Did she change your mind?

20 MS. EIG: No. She did not. I do

21 concur with her about the McMillan fountain. I

22 stated in my testimony that I thought that that

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1 would be something that should be included. And

2 that I had continuously recommended that through

3 the project, and hope that that can be done, as

4 testified to today.

5 MS. BROWN: Thank you. That concludes

6 our rebuttal witness.

7 MR. BYRNE: Ms. Ferster.

8 MS. FERSTER: Let's just start with

9 the CMP Telephone case. You did mention that the

10 Mayor's Agent did approve that project as one of

11 special merit?

12 MS. EIG: And I believe that's

13 correct.

14 MS. FERSTER: Isn't it correct that

15 exemplary architecture was not the basis of --

16 MS. EIG: It was determined that the,

17 I believe that the Mayor's Agent decided not to

18 include that. It was essentially withdrawn after

19 Mr. Maloney's statement.

20 MS. FERSTER: That's correct, yes.

21 And that was going to be my next question. Thank

22 you for clarifying that.

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1 So, you particularly cited the

2 language in the HPRB decision of October 31st,

3 that the HPRB found that the concept design to

4 represent an architecturally coordinated and

5 cohesive approach that specifically relates to

6 the character of the McMillan site.

7 Are you citing that because you

8 believe that the Mayor's Agent should defer to

9 that HPRB finding?

10 MS. EIG: The Mayor's Agent doesn't

11 have to defer to the finding. I think what I was

12 trying to state is that any discussion of what's

13 being proposed here is based on an approved HPRB

14 plan that was conceived to be of very high

15 quality. That is what I meant.

16 MS. FERSTER: Okay. And if you

17 wouldn't mind, just explain a little bit about

18 the HPRB's process. I mean, the HPRB also

19 reviews new construction. Isn't that correct?

20 MS. BROWN: Objection. That wasn't

21 part of her rebuttal testimony, the process of

22 HPRB to review --

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1 MS. FERSTER: It's called --

2 MS. BROWN: -- new construction.

3 MS. FERSTER: -- a foundation

4 question.

5 MR. BYRNE: Yes. It --

6 MS. FERSTER: So that I can ask her a

7 real question.

8 MR. BYRNE: I think it will establish.

9 So, go ahead.

10 MS. EIG: The HPRB does review new

11 construction when it's within a historic

12 district.

13 MS. FERSTER: And what's the standard

14 of the HPRB review when it reviews new

15 construction?

16 MS. EIG: That it is not incompatible.

17 MS. FERSTER: Okay. Not incompatible

18 with?

19 MS. EIG: The historic district that

20 it's being set into.

21 MS. FERSTER: Okay. And are you aware

22 that the Mayor's Agent in the Third Church

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1 decision, they specifically found that something

2 more was required than would be required in a

3 case where a finding of not incompatibility, in

4 order for a project to qualify as one of special

5 merit?

6 MS. EIG: I actually have not read

7 that decision.

8 MS. FERSTER: By virtue of its

9 architecture?

10 MS. EIG: I haven't read it.

11 MS. FERSTER: You haven't read it?

12 Okay, thank you. So, in your experience with the

13 HPRB and reviewing new construction for

14 compatibility purposes, would this language find

15 the concept designs to represent an

16 architecturally coordinated and cohesive approach

17 that specifically relates to the character of the

18 blank site?

19 Would that language be language that

20 the HPRB would typically use when reviewing new

21 construction projects, and approving it, in terms

22 of its responsibility as finding incompatibility,

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1 no incompatibility?

2 MS. EIG: The HPRB, according to my

3 understanding, could simply have said, this is

4 not incompatible. However, they did explicitly

5 state that it was of very high quality that

6 related.

7 And that, after attending the hearing

8 that would have been their goal, is that they

9 wanted these, the new construction to fit into

10 this setting. And to be complimentary to it.

11 And to be of a very high quality that they felt

12 was worthy of the landmark.

13 MS. FERSTER: And are you aware of any

14 other times when the HPRB in approving new

15 construction as not being, not incompatible, has

16 also been complimentary to the design?

17 MS. EIG: I'm sure on many occasions

18 they would be.

19 MS. FERSTER: Okay. Thank you.

20 MR. BYRNE: Okay. Mr. Otten.

21 MR. OTTEN: Good afternoon, Ms. Eig.

22 You just testified about the McMillan fountain.

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1 Is that currently included in the plan?

2 MS. EIG: I don't believe that there

3 has been a full decision about that.

4 MR. OTTEN: Okay.

5 MS. EIG: It's something that's been,

6 see, we were engaged to actually determine

7 whether we, the parts were available, and which

8 we have done. We found that out. I think it was

9 --

10 MR. OTTEN: They are available?

11 MS. EIG: -- stopped by virtue of the

12 appeal, ending the process.

13 MR. OTTEN: And to the issue around

14 water features. The water features were nixed on

15 the initial design, right?

16 MS. EIG: That's not quite right.

17 MR. OTTEN: Okay.

18 MS. EIG: No.

19 MR. OTTEN: Why not?

20 MS. EIG: I think Mr. Bell could

21 actually --

22 MR. OTTEN: Okay.

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1 MS. EIG: -- present that --

2 MS. BROWN: Yes. I think she's --

3 MS. EIG: -- for a better --

4 MS. BROWN: There's some different

5 witnesses. I don't think --

6 (Simultaneous speaking)

7 MR. OTTEN: Okay.

8 MS. BROWN: -- she testified to the --

9 MR. BYRNE: I do, I would like to hear

10 about it, yes.

11 MR. OTTEN: And you spoke to the

12 extensive educational aspects of this project.

13 And it, talking about water. Did, do you know if

14 any of the educational aspects will talk about

15 air pollution, or noise, or anything?

16 MS. EIG: I don't think the whole

17 program was developed. But it was actually,

18 there was an outline presented to the Historic

19 Perseveration Review Board. But once again, any

20 development of that was stopped because of the

21 appeal.

22 MR. OTTEN: Okay. The approved, you

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1 testified about HPRB and kind of their role in

2 this. The HPRB Members as I understand it, they

3 are appointed by the Mayor. Are they appointed

4 by the Mayor, to your knowledge? And this HPRB

5 approved plan does note the diminution of open

6 space, character, and the significant demolition

7 of the filter cells.

8 MS. EIG: The, HPRB does not have in

9 its jurisdiction the ability to approve a

10 demolition. If there's a situation where

11 demolition's proposed they make a determination

12 of whether this is a resource that's contributing

13 or significant, whatever. And then they refer to

14 the Mayor's Agent for the Mayor's Agent to make

15 that decision. So, that's standard procedure --

16 MR. OTTEN: Okay.

17 MS. EIG: -- in any case, for them to

18 make a, they have to take that action in order

19 for the case to proceed.

20 MR. OTTEN: And you talked about, the

21 ultimately approved plan came about through a lot

22 of meetings, and many ideas designing a new

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1 place. But of all those different ideas and

2 plans, essentially from what we can see the

3 density in destruction or demolition remains the

4 same.

5 MS. BROWN: Objection. She didn't

6 testify to density. She just, she testified to

7 the design.

8 MR. OTTEN: Well, doesn't design

9 include density or size of the project?

10 MS. EIG: Well, I'm not an expert.

11 And I didn't testify about how much density there

12 was.

13 MR. OTTEN: Okay.

14 MS. EIG: What I did is how the many

15 times we met, where we went to the neighborhood

16 and had charrettes, and discussed different ways,

17 different places that things could be.

18 At one point there were only rowhouses

19 on this entire site. And over time, there was a

20 park that was moving all around. It was a much

21 smaller park. And it was, in fact, Mr. Norman

22 and I spent a lot of time talking about putting

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1 the park in the center.

2 But the final outcome was based on

3 many, many meetings and discussions, and events

4 that happened where by providing the tripartite

5 organization, and allowing that entire piece to

6 be a park was, you know, seemed to be the best

7 solution. I certainly thought it was the best

8 solution.

9 MR. OTTEN: So, the design, or the

10 discussion around the park in the center, that's

11 where the cells that are, the filter cells that

12 are in decent shape are located, right?

13 MS. EIG: That's --

14 MR. OTTEN: According to --

15 MS. EIG: That is, well, there is,

16 that is what shows on the map, yes.

17 MR. OTTEN: Okay.

18 MS. EIG: On the drawing.

19 MR. OTTEN: And the overall demolition

20 of the cells, in this plan is largely the same,

21 even though, despite of those discussions, where

22 a park in the center would have kept those, more

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1 cells. Would the park, in the discussion where

2 the park was in the center, would that have kept

3 those cells?

4 MS. EIG: I don't know the answer as

5 to whether it would have been kept, because

6 that's a structural issue. Because I think we

7 heard testimony, as I certainly have been made

8 aware from reading Mr., you know, Mr. Nedham's

9 report, the sylvan report, is that all the cells

10 cannot be used or walked on in, you know, for

11 public purposes.

12 So, I don't know what would happen.

13 But the point is, that's where they are, the

14 cells that were identified as being in the best

15 condition, yes.

16 MR. OTTEN: So, and you refer to the

17 92 acres. And McMillan, the McMillan site is 25

18 acres. But it's part of a 92 acre site. What of

19 the 92 acres is District owned and controlled?

20 Is it just the 25 acres?

21 MS. EIG: 24.9 acres, yes.

22 MR. OTTEN: Okay. And is it fair to

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1 say that the major arteries, public throughways,

2 Michigan, North Cap, is along the 25 acres, and

3 not the rest of the, I guess federally owned

4 site?

5 MS. EIG: North Capitol, yes. But

6 not, Michigan extends beyond that.

7 MR. OTTEN: So, Michigan touches the

8 top of part of the 92 acres? And so, in planning

9 this holistically, and the placemaking that you

10 described, is putting this site as it's described

11 now before us, in an internal flood plain, is

12 that short sighted?

13 MS. BROWN: Objection. She didn't --

14 MR. BYRNE: Sustained.

15 MS. BROWN: -- testify about flood

16 plains.

17 MR. OTTEN: I know you didn't, but you

18 talked about placement. So, I'm wondering if

19 that has entered in any of your analyses?

20 MS. BROWN: He just sustained my

21 objection.

22 MR. BYRNE: Yes. I --

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1 MR. OTTEN: So, how do I reframe that?

2 Because --

3 MR. BYRNE: I think you have to ask

4 somebody else. I'm going to, she didn't --

5 MR. OTTEN: Okay.

6 MR. BYRNE: -- testify about --

7 MR. OTTEN: Okay.

8 MR. BYRNE: -- water condition at all.

9 MR. OTTEN: I just heard placement.

10 And --

11 (Simultaneous speaking)

12 MR. OTTEN: I think of that, and I

13 think of where the place is. Well, you talked

14 about the north service courts. Was there in the

15 historic assets of the buildings have been set

16 further away from it, and in some prior design.

17 Can you reference what design where it was

18 closer? Was that what --

19 MS. EIG: I think that Mr. Bell

20 presented a number of designs that were made,

21 formally presented, that could address that

22 better than I could, which ones that was.

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1 MR. OTTEN: Okay. And the last

2 question I have. As an historic preservationist

3 are you concerned, the north service court as I

4 understand becomes a public vehicle access way.

5 Are you concerned about the historic assets that

6 are between now what would be lanes of traffic?

7 Will they be, was there any analysis

8 of accidents, what an accident could do, or

9 anything where the historic assets might be

10 imperiled, because of putting a through way where

11 there isn't now.

12 MS. EIG: Well, I think, I will just

13 say I'm not a traffic expert. But it's not lanes

14 of traffic. It's very limited traffic. And

15 that, you know, someone else would have to assess

16 how that will be controlled to protect the

17 resources.

18 MR. OTTEN: But, protecting of those

19 resources is important --

20 MS. EIG: Yes.

21 MR. OTTEN: -- through -- And it's

22 kind of been elevated. Because now it's between

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1 traffic. Whereas, right now it's not, right?

2 MS. EIG: Right now it's --

3 MR. OTTEN: It's just --

4 MS. EIG: -- inaccessible.

5 MR. OTTEN: Okay.

6 MS. EIG: Yes.

7 MR. OTTEN: All right. Thank you.

8 MR. BYRNE: Okay.

9 MS. BROWN: All right. The next

10 witness is Mr. Matt Bell. And I'm looking at the

11 clock. I obviously didn't keep cross examination

12 in mind when I --

13 MR. BYRNE: Right.

14 MS. BROWN: -- kept, gave you my time

15 estimate. But I know he has a hard stop at 5:00

16 p.m. because he has to catch a plane.

17 MR. BYRNE: Let's go.

18 MS. BROWN: So, Mr. Bell, you heard

19 the testimony from the opponent's witnesses on

20 exemplary architecture. Do you agree with their

21 definition of exemplary architecture? And how do

22 you, how would you reframe that definition?

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1 MR. BELL: I don't. The project is

2 exemplary. First, let me point out that we

3 underwent extensive reviews with both the Zoning

4 Commission and the Historic Preservation Review

5 Board. And the Zoning Commission reviewed a

6 consolidated PUD, which of course has a higher

7 level of detail in the support of them.

8 But the project is supported by

9 experts that comprise those groups, and

10 complimented on by them.

11 Second, the project we have designed

12 is both compatible with the landmark and

13 exemplary. That is not easy to achieve. Several

14 of the earlier alternatives we presented to HPRB,

15 as Emily's pointed out, were rejected because

16 they treated building sites individually, as

17 though the problem was designing a unique

18 singular building.

19 Much of what we've heard tends to

20 suggest that that's the approach. But the HPRB

21 did not support that view. They wanted coherent

22 and cohesive site of buildings to complement the

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1 landmark.

2 Third, the design recognizes the

3 character of the landmark, and the primacy

4 importance of the landmark by taking buildings in

5 different size and function. And first uniting

6 them in an interwoven system of streets, paths,

7 and open spaces derived from the tripartite order

8 of the site, of the landmark.

9 And I would just refer to Mr.

10 Callcott's testimony here saying that both

11 individually and collectively the revised, and

12 this is his October 31st report. The revised

13 concepts are dramatically improved.

14 And this is where we, after we went

15 through alternatives, back and forth, looking at

16 a lot of different things. Reflecting the high

17 quality of, the high level of quality,

18 cohesiveness, and distinctiveness that have been

19 sought by the Board.

20 Without resorting to replication or

21 literal references, the architecture uses a

22 carefully edited, while still rich and varied,

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1 vocabulary of colors, materials, patterns,

2 geometries, and forms to unite the proposal's

3 distinctly different building types.

4 The resulting language is specific to,

5 and evocative of the landmark interpreted in a

6 fresh and contemporary manner. For the first

7 time it looks like a destination you would want

8 to seek out, to experience its distinct sense of

9 place. One that equally, includes equally

10 interesting historic and new features, balanced

11 and blended compatibly together.

12 The revised concept designs represent

13 an architecturally cohesive, high quality, and

14 site specific series of projects that relate to

15 the character of the landmark. I think that says

16 it actually very, very well.

17 The new buildings all align with the

18 design palette or guidelines. And in their unity

19 of conception bind them together. And they

20 represent McMillan as a unique, identifiable

21 place in both new construction and the legibility

22 of the existing landmark.

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1 It is the unity of the new that is

2 exemplary, in addition to the design of the

3 individual buildings, in how it brings

4 distinction to McMillan by referring to and

5 complementing the historic elements, yet in a

6 high design mode.

7 I should also point out, I wanted to

8 point out too, earlier too, that some of the

9 things that we've pointed out earlier is we do

10 have approximately 50 percent of the site is open

11 space, between parks, sidewalks, you know,

12 smaller and larger parks, the north and south

13 service courts, and the Olmsted Walk.

14 Finally, each building is exemplary in

15 how each one is coherent, well proportioned, and

16 responds well to its location in the site plan.

17 And here I would just point out the richness of

18 the site plan in the proposal.

19 Mixed use, retail, this is really

20 right out of Jane Jacobs' playbook, small blocks,

21 mixed use, walkable, streets and sidewalks that

22 allow people to get around. And also, she talks

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1 about the fact that you need density to activate

2 urban space. You need lots of activity, and

3 different kinds of activity.

4 The townhouses and the multi-family

5 buildings define the streetscape, as do the

6 healthcare buildings. The community center,

7 which we, the community center, a simple glass

8 volumetric expression, calls attention to itself.

9 It is the one piece that stands out as

10 a kind of public building in the park. And it's

11 developed its form and materials in an active

12 dialogue with the elements of the landmark.

13 There's also been a comment made that

14 the EYA townhouses are what they do everywhere

15 else in the city. And all I can say about that

16 is, then you don't know very many EYA townhouses.

17 These are distinct strings of

18 townhouses. Their proportions of the bay windows

19 and the setbacks have been specifically designed

20 for McMillan. And they're organized in patterns

21 and symmetrical blocks to work with the sort of

22 patterns and repetition of the characteristic

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1 features of the landmark.

2 And we started with townhouses that

3 were like the ones in Bloomingdale, that were

4 different. Every townhouse was different. And

5 the Historic Preservation Review Board went back

6 and said, no, no, you need something unique. You

7 need to turn this into something unique and

8 exemplary. And that's what we've done.

9 Our design, and he community center

10 itself I should point out, does has meeting space

11 inside. People, some people talked about the

12 fact there wasn't any meeting space for the

13 community. It does have meeting space.

14 And we do have an amphitheater in the

15 park design as well for concerts. So, some

16 people had said that it didn't include that. And

17 actually it does.

18 Our design arrived at active dialogue

19 with professionals on OP, HPRB, and Zoning

20 Commission, as well as with community input of

21 the alternatives, and got better each time.

22 It's more than compatible. It is

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1 compatible in the urban design concept. It is

2 compatible in the architecture, and exemplary in

3 how well it does all of those things individually

4 and collectively.

5 And I just want to point out one other

6 thing here. There are very few, just a handful

7 of LEED ND Gold projects in the city. We will,

8 this will be one of the largest.

9 The Yards is 42 acres, that's LEED ND

10 Gold. But there are very few that are of this

11 size. And this will be a significant

12 contribution. Just a handful of these things.

13 And Mr. Dettman will talk a little bit more about

14 it.

15 But this will, we're shooting for

16 proving this for LEED ND Goal Version 4, which is

17 a new set of standards, which from what I'm told

18 by the people who handle all of or LEED projects

19 in the office, this is a significantly higher bar

20 to cross.

21 MS. BROWN: Thank you. Those are all

22 my questions for Mr. Bell.

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1 MR. BYRNE: Okay. Ms. Ferster.

2 MS. FERSTER: So, Mr. Bell, you

3 testified that HPRB in fact looked at earlier

4 designs for the project, and told you to go back

5 and look at something that was a little more

6 coherent.

7 And specifically, and I heard you say

8 this, told you that they want something

9 exemplary. Did they use the word, we want

10 something exemplary in their direction to you in

11 the written, in any written order? I mean, can

12 you provide that for the record?

13 MR. BELL: I think the criticism we

14 got, which was pretty brutal, said initially it

15 wasn't. And it needed to get up to the level of

16 exemplary.

17 MS. FERSTER: Okay. And if that, can

18 you provide that, a written decision? You read

19 the October 31st, 2013 HPRB decision. That did

20 not use the word exemplary. Isn't that correct?

21 MR. BELL: Well, it's not often that

22 the staff there calls things high level of

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1 quality, and uses the words that they use in

2 this..

3 MS. FERSTER: But it did not use the

4 word exemplary.

5 MR. BELL: Well, they've been using,

6 well, you can read it yourself.

7 MS. FERSTER: Well, that's correct.

8 MR. BELL: But --

9 MS. FERSTER: So --

10 MR. BELL: But our interpretation that

11 this was getting to exemplary level.

12 MS. FERSTER: You interpret this

13 language as meaning the HPRB determined that this

14 was exemplary?

15 MR. BELL: Yes.

16 MS. FERSTER: And is there a specific

17 HPRB decisions that direct you to come back with

18 a plan that is, using the word exemplary? And if

19 so, can you provide it for the record?

20 MR. BELL: I'm not quite sure I

21 understand the question.

22 MS. FERSTER: Is there a written HPRB

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1 decision in reviewing earlier iterations, of your

2 drawing, where they rejected it, as you say, and

3 were pretty brutal, where they said, no, go back

4 and bring us something, using the word exemplary?

5 MS. BROWN: And I can short circuit

6 this. We can see that the word exemplary is not

7 used. He testified to that. So, I think we're,

8 we can dispense with that line of questioning.

9 MS. FERSTER: Okay. So, you agree

10 that the HPRB did not direct specifically to come

11 back with a project that was "exemplary"?

12 MR. BELL: We were shooting for a high

13 bar, the highest bar we can achieve. In our

14 minds that would be exemplary.

15 MS. FERSTER: Okay. So, when you say

16 that the HPRB was pretty brutal about earlier

17 iterations of the design, would you agree that

18 the HPRB basically found those designs to be

19 incompatible with the landmark?

20 MR. BELL: In some cases they felt

21 some of them to be.

22 MS. FERSTER: Okay. And when you say

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1 that you interpret the HPRB, October 2013 finding

2 as a finding that they found your project to be

3 exemplary, I would like you to --

4 Are you aware of the fact that, and

5 you specifically quote Steve Callcott's

6 testimony, that's correct, where he was also very

7 complimentary about the version of the project

8 that they approved.

9 Were you aware of the fact that Steve

10 Callcott testified before the Mayor's Agent in

11 2014 that the HPRB did not find the project to be

12 exemplary architecture?

13 MR. BELL: I don't recall that.

14 MS. FERSTER: Okay. So, let me ask

15 you a little bit about the LEED ND Gold status.

16 Are you, the prior Zoning Commission order does

17 not require you, it's now vacated, of course.

18 But the prior Zoning Commission order did not

19 require you to get any kind of LEED certification

20 for the project. Isn't that correct?

21 MR. BELL: I believe we are seeking to

22 do that, yes.

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1 MS. FERSTER: So now --

2 MS. BROWN: I'm sorry. He said that

3 Mr. Dettman was going to be testifying about --

4 MR. BELL: Yes.

5 MS. BROWN: -- that.

6 MR. BELL: And Mr. Dettman --

7 MS. BROWN: He's probably --

8 MR. BELL: -- can probably --

9 MS. BROWN: -- better to ask that

10 question.

11 MS. FERSTER: All the LEED questions?

12 MR. BELL: Well, all I was pointing

13 out was the size of our project, and relatively

14 how few LEED Goal ND projects there are.

15 MS. FERSTER: Are there any LEED ND

16 Platinum projects in the District, if I may?

17 MR. BELL: Not that I'm aware of.

18 MS. FERSTER: And --

19 MR. BELL: ND Platinum, not that I'm

20 aware of, no.

21 MS. FERSTER: And so, are you, you

22 talked about, is it you or Mr. Dettman who would

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1 talk about the certification then that you intend

2 to secure?

3 MR. BELL: Mr. Dettman.

4 MS. FERSTER: Okay. Can you describe,

5 and how about the, you talked about the Version 4

6 LEED ND standard that you complied with. Can you

7 describe some of the, in fact, list all of the

8 Version 4 --

9 MR. BELL: Mr. Dettman has a document

10 that outlines what we're going to be pursuing

11 relative to that, to where we see the points in

12 that.

13 MS. FERSTER: Okay. Thank you. Then

14 I'll reserve those questions for Mr. Dettman.

15 MR. OTTEN: Good afternoon, Mr. Bell.

16 Chris Otten for the record. You just testified

17 that one of the benefits of this site is that

18 you're saving, or 50 percent of the existing

19 green space will be saved and retained. And I

20 just want to understand that. Does that --

21 MR. BELL: That's not what I said.

22 MS. EIG: Open space.

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1 MR. OTTEN: Okay. What did you --

2 MR. BELL: What I said, that the site

3 contains approximately 50 percent open space.

4 Some of it will be streetscape, some of it will

5 be the north and south service courts, some of it

6 will be the park.

7 MR. OTTEN: So, by streetscape are you

8 including in like tree boxes, and this sort of

9 thing?

10 MR. BELL: Yes. That's usually part

11 of the streetscape, yes.

12 MR. OTTEN: Okay. And who is paying

13 for, is the city paying for all the open space

14 that you're mentioning?

15 MR. BELL: I didn't testify. Mr.

16 Thakkar is going to testify to that.

17 MR. OTTEN: Okay. And so, the, you're

18 including in the open space, so the open space

19 that you're calculating is 50 percent of the site

20 is not necessarily green? Some of it is paved?

21 MR. BELL: Yes. It's like Jane Jacobs

22 says, you want a variety of different kinds of

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1 open space in the neighborhood. It's not the

2 quantity necessarily, it's the quality and the

3 variety.

4 MR. OTTEN: And so, the, it's also not

5 contiguous then? It's not contiguous open space?

6 MR. BELL: And one of the things she

7 also recommends is spacing things apart so that

8 people can have different experiences in

9 different places.

10 MR. OTTEN: But I'm asking you --

11 MR. BELL: It's all part of

12 placemaking.

13 MR. OTTEN: I'm asking you. I'm not

14 asking --

15 MR. BELL: It's not contiguous?

16 MR. OTTEN: -- Jane Jacobs. Yes.

17 MR. BELL: No.

18 MR. OTTEN: Okay. And part of this

19 space you're talking about is Cell 14, or the

20 area above Cell 14?

21 MR. BELL: Yes.

22 MR. OTTEN: And in that, that's being

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1 preserved. Is that in the, I guess I would ask

2 Mr. Thakkar. But maybe you know. Is that, the

3 City is also preserving that? Is the city paying

4 for that?

5 MR. BELL: Mr. Thakkar will answer

6 that.

7 MR. OTTEN: Okay. You mentioned part

8 of the placemaking here is the walkability

9 aspects, I guess. What of the pedestrians who,

10 with asthma and lung issues in the volume of

11 traffic? How did you, how does that play into

12 your analysis of this?

13 MS. BROWN: Objection.

14 MR. BYRNE: Sustained.

15 MR. OTTEN: Did you look at

16 pedestrians who might have asthma problems with

17 this project.

18 MS. BROWN: Objection. He didn't

19 testify to that.

20 MR. OTTEN: We're talking about his

21 exemplary architecture and placemaking here. I -

22 -

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1 MS. BROWN: He has --

2 MR. OTTEN: Let me understand. How

3 does placemaking and, how does placemaking factor

4 into your decision in creating a project of this

5 size?

6 MR. BELL: One of the things you try

7 and do of projects of this size is make them

8 walkable. Because in my experience, and our

9 understanding and practice, and public health

10 benefits, is that when sites become more walkable

11 people walk. And they walk more.

12 One of the public health problems of

13 Americans is that they drive a lot. And this,

14 our plan will make it possible for people to walk

15 in this neighborhood, more than they do now.

16 They'll take a 25 acre site that you can't walk

17 on, and they'll be able to go there for many

18 reasons.

19 I can imagine people walking loops

20 around the Olmsted Walk for exercise reasons.

21 It's significant to create things that are

22 walkable. That's a significant benefit here.

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1 MR. OTTEN: Okay. So, to that issue,

2 did you do any analysis based between the last

3 week's cross exam and this week, of the amount of

4 volume of traffic, and the pollution that that

5 might cause, in terms of the pedestrian aspect

6 and the walkability.

7 MR. BELL: I didn't testify to that.

8 MR. OTTEN: You just talked about this

9 site, you're creating it to be walked --

10 MR. BELL: But I didn't testify to

11 pollution, or anything like that.

12 MR. OTTEN: But does that affect the

13 walkability?

14 PARTICIPANT: Yes.

15 MS. BROWN: Objection. He testified,

16 I don't understand why we're getting into

17 pollution and other adverse impacts that are part

18 of any development project. It's, he testified

19 to exemplary architecture.

20 MR. BYRNE: I don't, yes, I don't

21 think we need to pursue pollution with Mr. Bell.

22 MR. OTTEN: Well, Mr. Byrne, this

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1 isn't any particular project. This is a large

2 project that, according to their own experts'

3 numbers is bringing on 25,000 additional vehicle

4 trips daily. So, the question is, if it's such a

5 walkable project, why would a project create that

6 many trips? Why is that acceptable? Why is that

7 not an impact versus a special benefit.

8 MR. BYRNE: It may be an impact. But

9 I don't think it's part of the cross examination

10 of Mr. Bell.

11 MR. OTTEN: Okay. So, Mr. Bell, you

12 did testify just now that there was an extensive

13 review at the Zoning Commission and HPRB. Did

14 any of that review go into the fact that you're

15 placing your architecture and this site in a

16 flood plain?

17 MR. BELL: I didn't testify to

18 anything about the flood plain.

19 MR. OTTEN: I know. I'm asking you.

20 You said that there was an extensive review at

21 the Zoning Commission and HPRB. Did any of that

22 review get into the fact that this is a flood

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1 plain.

2 MS. BROWN: Objection. I don't think

3 there's been a foundation that this is a flood

4 plain. So, it would be a trick question.

5 MR. BYRNE: Right. I mean, there is,

6 I mean, actually there was, wasn't there a map

7 that was produced to suggest that it was an area

8 that was susceptible to flooding? I think there

9 was. And I think, Ms. Brown, I think you said

10 that when he asked about the flooding before,

11 that you said that Mr. Bell would address it.

12 MS. BROWN: I don't think that Mr.

13 Bell is the right person to be addressing

14 flooding. It would be Mr. Thakkar if that's --

15 MR. BYRNE: Okay.

16 MS. BROWN: And I think Mr. Dettman

17 may have some testimony on it. But I don't know

18 that we have, he may have testified to it --

19 MR. BYRNE: Right.

20 MS. BROWN: -- being in a flood plain.

21 But --

22 MR. BYRNE: No, I don't think he did.

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1 MS. BROWN: That's not been

2 established.

3 MR. BYRNE: I think it was, there was

4 sort of a map that came by that suggested that it

5 was susceptible to flooding. But I'm just saying

6 it was not, I wouldn't say it, let's just say

7 it's not a well developed fact in this case. But

8 it has appeared, which is itself -- And if the

9 answer is this developer doesn't know, that's

10 fine. We'll go on.

11 MR. BELL: Yes. I think somebody else

12 on our team is going to testify to that.

13 MR. BYRNE: Okay.

14 MR. OTTEN: Okay. Right. So, again,

15 in your testimony about the extensive review by

16 other agencies, did any of them go into any

17 analysis of concerns or mitigation around

18 accidents along the north service court, with the

19 historic resources there.

20 MS. BROWN: Objection.

21 MR. OTTEN: That you're aware of?

22 MS. BROWN: Objection. He didn't

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1 testify about any other agencies.

2 MR. OTTEN: He did. He said there was

3 an extensive review at the Zoning Commission and

4 at HPRB to get us to this project where we are

5 right now.

6 And so, I'm just simply asking, in

7 that extensive review which you participated in

8 directly, in setting up the north service court

9 as an accessible public transit through way, was

10 there any review of potential accidents with the

11 historic resources that we're seeking to protect?

12 MS. BROWN: He testified to exemplary

13 architecture, and the design review that happened

14 before HPRB and the Zoning Commission. That's

15 it.

16 MR. OTTEN: And if I could follow?

17 Doesn't that therefore mean there was a review of

18 the, of potential injury or risk to the historic

19 resources by and of this design?

20 MR. BYRNE: I think, Mr. Bell, if you

21 don't, just say whether you know or not.

22 MR. BELL: So, everything we presented

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1 showed where the pathways were for cars. And we

2 drew sections through the north and south service

3 court showing where the vehicles were going to

4 go, where the parking would be, things like that

5 So, everybody on those commissions had

6 a chance to understand what we were proposing in

7 terms of where vehicles were going to go, and

8 where they were not going to go. And it's a very

9 common thing to talk about how vehicles are going

10 to circulate. And they had ample opportunity to

11 be able to express concerns.

12 And I think we showed this is going to

13 be very slow moving traffic through this

14 neighborhood. It's not going to be high speed

15 traffic going through there, you know, and

16 somebody decides to do that, you know, and is

17 misbehaving. That's something, you know, that

18 happens in the city.

19 But the way the thing is designed is

20 that it's going to be a very slow moving

21 environment. And so, everybody on HPRB and the

22 Zoning Commission had a chance to look at what we

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1 were proposing, where the cars go.

2 MR. OTTEN: Okay. I appreciate that.

3 In terms of the, your design and the review again

4 at these Boards. The fact that the, it's a high

5 density northern end of the site, was that ever

6 brought to your attention as potential, any

7 reductions in that density, down to perhaps low

8 or moderate, in any reviews?

9 MS. BROWN: Objection. The density is

10 a question for the Zoning Commission. And I

11 don't accept the premise that it was high

12 density.

13 MR. OTTEN: If I can respond to that?

14 We're here exactly because this approved project

15 has to come before the Mayor to determine if it's

16 special merit. And one of the points of special

17 merit is its design and its density. Whether

18 it's going to block views. Whether it's going to

19 impact the neighborhood negatively. This is

20 central to the question.

21 MR. BYRNE: I think that's right. I

22 mean, this is always a problem in historic

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1 preservation context, when another agency deals

2 with the questions of height and density, per se,

3 as the Zoning Commission has done, and has

4 approved what's been proposed. But I think in

5 terms of the question of special merit, I think

6 he can ask that question.

7 MR. OTTEN: Maybe the term density I

8 know is Zoning, it's a Zoning related jargon.

9 It's really the size. It's trying to get to --

10 MR. BYRNE: Your question is whether

11 the size impacts on the ability to enjoy the

12 historic resources? Is that it?

13 MR. OTTEN: That could be another

14 question. I guess what I was trying to go to is,

15 was Mr. Bell ever asked to consider a smaller

16 footprint, smaller buildings, in lieu of the

17 historic assets on the site.

18 MR. BELL: I don't recall if I was

19 asked that specific question, quite honestly.

20 MR. OTTEN: Okay. Okay. And you

21 mentioned the LEED and the silver and gold

22 aspects of this project. Are you concerned at

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1 all that it will reduce the overall city-wide

2 LEED Platinum average?

3 MS. BROWN: And I'm going to object.

4 He only testified to LEED ND Gold.

5 MR. OTTEN: If I'm not mistaken,

6 there's LEED ND, there's LEED Silver buildings

7 involved in this.

8 MS. BROWN: His rebuttal testimony was

9 strictly related to LEED ND Gold.

10 MR. BYRNE: That's all he can testify

11 to.

12 MR. OTTEN: Okay. So, either way LEED

13 ND Silver, LEED ND Gold, or LEED ND, period, how

14 does that, doesn't that affect the overall

15 city's, this recent award of being a LEED

16 Platinum city?

17 MR. BELL: Perhaps. I don't know. I

18 mean, I don't what the city, how it's setting out

19 its objectives, you know. I mean, I'm not person

20 making those decisions.

21 MR. OTTEN: Okay. Finally, the, well

22 I have two quick ones. Callcott's testimony you

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1 referenced, the October 31st 2013. You say that

2 the revised concepts are dramatically improved.

3 Or that he said that in this report. Doesn't he

4 also say that the overall project fails the

5 covenants on the site?

6 MR. BELL: My understanding is that

7 because demolition was involved it had to be

8 referred to the Mayor's Agent as part of the

9 process.

10 MR. OTTEN: But --

11 MR. BELL: That's what I believe that

12 reference was made for.

13 MR. OTTEN: Okay. Finally, you

14 mentioned the amphitheater now that's in the

15 site. In the extensive reviews did you come

16 across any understanding of the noise, or

17 anything that will be generated by the

18 amphitheater, let's say projected to the

19 surrounding area?

20 MR. BELL: You mean, like if there's a

21 concert going on there? I think there were

22 discussions about how the community would use it.

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1 And it was agreed to that there would have to be

2 some sort of set of rules that the community

3 would derive about what sort of noise level is

4 acceptable to them, and what kind of activities

5 could be there. The feature is there so it could

6 be used informally, and also if they want to have

7 more formal things.

8 MR. OTTEN: Where is that amphitheater

9 projecting towards?

10 MR. BELL: It's on the south side of

11 the lower part of the park, facing north.

12 MR. OTTEN: Okay, thank you.

13 MR. BELL: In the southeast corner.

14 MR. OTTEN: Thank you. That's all I

15 have.

16 MR. BYRNE: All right. Thank you.

17 All right. Got to get you to your airplane, Mr.

18 Bell.

19 MR. BELL: I very much appreciate it.

20 Thank you for taking my testimony.

21 MS. BROWN: Our next witness is Mr.

22 Dettman. Why don't we jump right into the LEED

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1 questions. The project is going achieve LEED ND

2 Gold

3 MR. DETTMAN: Right.

4 MS. BROWN: Could you explain what

5 that means, and describe some of the points that

6 are going to be targeted for this project?

7 MR. DETTMAN: Sure I'll start off, let

8 me start off by clarifying what is to be expected

9 of this project when it comes to the LEED-ND Gold

10 certification. Whether or not it only has to be

11 designed to achieve it. Whether or not it has to

12 certified, actually go through the full

13 certification process per the order that is then

14 vacated.

15 But that order included as a

16 condition, a requirement that the project be

17 designed to achieve LEED-ND Gold. And it says,

18 this was under the condition Number 10, under

19 environmental benefits, "The master plan for the

20 overall development for the PUD site shall be

21 evaluated for LEED-ND and shall be certified at

22 least ND Gold or its equivalent." So, there was

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1 a requirement.

2 When does that condition actually get

3 fully satisfied? That's always the question that

4 comes up. I think someone had asked, how do you

5 enforce it? The LEED process is something that

6 goes from the very beginning. It's going on

7 right now. Even after the 2014 action, Zoning

8 Commission, it continued to go on.

9 And what we're handing out right now

10 is a memorandum that we prepared by Perkins

11 Eastman DC, dated October 2016. So, about two

12 years after the first Zoning Commission action,

13 continuing to analyze this project as the designs

14 evolve. Making sure that it was going to be able

15 to achieve the full certification of LEED-ND

16 Gold.

17 The actual certification, the handing

18 over of the documents saying, "Well done, you did

19 a great job", happens after construction and

20 after occupancy. But it is a condition to the

21 Zoning Commission order. And so that's an

22 enforcement issue with the Office of the Zoning

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1 Administrator that goes through all the

2 conditions to make sure that that's met.

3 Now, if you look at the Perkins

4 Eastman DC memorandum -- and actually you

5 received two documents. One, is the Perkins

6 memo. The other one is a reference guide for

7 LEED-ND which is published by the U.S. Green

8 Building Council. I will say that this is just

9 an excerpt. It's a much much larger document and

10 it costs about 300 and some odd dollars. But I

11 think the relevant pieces are here. And I'll

12 explain why I included this reference guide.

13 But if you look at the Perkins Eastman

14 DC memo, it goes through in excruciating detail,

15 all of the different areas of LEED-ND. All the

16 different sustainability elements that contribute

17 and count towards achieving a LEED-ND rating.

18 And it talks about how at this point

19 in time, in October 2016 when this memo was

20 prepared, where the project was and what track it

21 would have to continue on in order to achieve

22 LEED-ND Gold.

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1 At the back of the document is a

2 scorecard which includes all these elements. And

3 it identifies where the project would be getting

4 all of the available points, some of the

5 available points, or none of the available

6 points.

7 And just to give you an example. So,

8 if you look towards the back, there's no number

9 on it, but there is a section under neighborhood

10 pattern and design. And there is one called,

11 walkable streets. Okay, so you can see under

12 walkable streets, it's getting, you know, taking

13 seven points out of the total nine points, under

14 that particular category.

15 Now, if you were to -- and this is the

16 reason why I gave you the reference guide.

17 Because if you turn to the reference guide -- and

18 I think this is very helpful -- to the page,

19 again it's just an excerpt, but if you turn to

20 Page 40. Page 40 has a table that takes you

21 through all of the different credits of the LEED-

22 ND system.

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1 And identifies which ones contribute

2 towards climate protection. And you'll see that

3 if you take the time, and you compare the LEED-ND

4 scorecard prepared in October 2016 for this

5 project, which if you look at the scorecard it

6 adds up to 70 points. That falls within the

7 LEED-ND Gold category.

8 You will find that the large majority

9 of the strategies that are being ticked off in

10 this scorecard, contribute to climate protection

11 and other discussion about, you know, what sorts

12 of impact will this project have on climate

13 change? Or is it susceptible to climate change?

14 Or what is it doing to exacerbate climate change?

15 You will see that by virtue of this

16 project being looked at holistically for LEED-ND

17 Gold, and being required to achieve that

18 certification, that I think someone would be hard

19 pressed to argue that this project is going to

20 contribute adversely to climate change.

21 MS. BROWN: Mr. Otten had testimony

22 today about this being located in a flood plain.

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1 Is that accurate? Could you address that?

2 MR. DETTMAN: It's not located in

3 FEMA-designated flood plain. And perhaps this is

4 just a matter of semantics. But there are three

5 different types of flooding. There's -- and I'll

6 hand out this study that was done in August of

7 2017 by a group called, the DC Silver Jackets,

8 which is a task force that was put together,

9 federal and district agencies, which specifically

10 --

11 PARTICIPANT: I'm familiar with them.

12 MR. DETTMAN: So, this August 2017

13 study specifically looked at the topic of

14 interior flooding. And it doesn't draw any

15 conclusions. It makes recommendations more so on

16 a technical level about being able to model

17 flooding in the District of Columbia.

18 But I thought it would be helpful

19 because it very clearly identifies what are the

20 three types of flooding. There's river rain, and

21 there's coastal flooding. Basically it's water

22 coming up from the bay, or water coming down the

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1 rivers and the river can't hold all that water.

2 So, it spills out over its banks. Those are the

3 FEMA-designated flood plains.

4 Those are what shows up in the FIRM

5 maps. And those are the areas that the

6 comprehensive plan recommends against developing

7 buildings in, especially critical infrastructure,

8 critical buildings like hospitals and whatnot.

9 And those are the areas where if

10 you're going to construct a building within a

11 FEMA-designated flood plain, you would have to

12 purchase flood insurance. And you may have a

13 problem with getting lending.

14 This, the McMillan site is not within

15 one of those FEMA-designated flood plains. It's

16 located in an area, in a neighborhood that is

17 prone to interior flooding, which is what we saw

18 in 2012 in the Bloomingdale neighborhood.

19 And interior flooding is an event

20 that's caused by a combination of factors. One,

21 is topography. The area around the McMillan site

22 certainly has topography, with the escarpment

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1 leading up towards the Armed Forces Retirement

2 Home. It's -- impervious surface, contributes to

3 interior flooding.

4 Immediately to the north of the

5 McMillan site, there's the hospital centers, the

6 VA, and the Washington Hospital Center. And

7 there's a lot of impervious surface over there.

8 There was some earlier mention about the parking

9 lots there.

10 There's also localized weather

11 contributes to it, as well as the capacity of the

12 infrastructure. And as you know, the McMillan

13 site and the Bloomingdale neighborhood is located

14 in the combined sewer area. And so all those

15 things put together, contributed to the interior

16 flooding event that happened in Bloomingdale in

17 2012.

18 As a result of that DC Water

19 accelerated its NE Boundary Tunnel Project and

20 put in the First Street Tunnel, which is eight

21 million gallons of storage. And the storm water

22 goes into that big tunnel. It sits there until

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1 Blue Plains has the capacity to actually treat

2 that water.

3 They've put in an additional three

4 million gallons of storage up in the NE corner,

5 over by Cell 14. And then just by pure luck, I

6 guess, they were able to find another million

7 gallons of storage through Low Impact

8 Development, which is green infrastructure.

9 The tunnels under First Street, that's

10 all gray infrastructure, it just holds the water.

11 But they were able to find a million gallons of

12 green infrastructure along Irving, First Street,

13 and North Capitol Street.

14 So, all of that additional retention

15 and treatment, and then you can see in this Blue

16 Jacket Study, on Page 5 of 10, under background.

17 Second paragraph it specifically talks about the

18 2012 flood events in Bloomingdale talking about

19 interior flooding. And it says, "Since then DC

20 Water has made significant improvements to the

21 neighborhoods to mitigate interior flooding.

22 Including the completion of the First Street

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1 Tunnel that can store eight million gallons of

2 storm water and waste water during intense rain

3 storms."

4 So, I hope that clarifies the fact

5 that this is not in a flood plain. It's in an

6 area that perhaps once was prone to interior

7 flooding, but has been significantly addressed

8 through the DC Water program.

9 And I can speak a little bit more

10 about, perhaps it's the next question, about how

11 development on this site will actually

12 significantly reduce the amount of water coming

13 off of this site, which earlier we had talked

14 about is largely impervious as a result of

15 essentially being a 25 acre concrete plinth

16 that's covered with a little bit of grass?

17 MS. BROWN: I was going to shift to

18 affordable housing unless you wanted to continue

19 with that remark.

20 MR. DETTMAN: And this is in the

21 comprehensive plan analysis that's in Exhibit C.

22 Some of the environmental protection policies

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1 address storm water. There's been a lot of talk

2 about storm water. And just to again, this site

3 is largely impervious. If you scrapped off, you

4 know, the one foot of grass that's there. It's a

5 concrete plinth.

6 And so for whatever the grass can't

7 hold onto, that water has to go somewhere. As a

8 result -- and again these numbers are in our

9 comprehensive plan analysis -- but as a result of

10 this development, this development is going to

11 have approximately 289,000 square feet of

12 landscaped area. That's landscaped area that can

13 actually percolate, accept the rain water.

14 Approximately 13,000 square feet of

15 bio retention facility. That's all in the

16 streets. So, the water running off the streets

17 is going to go into tree boxes, that tree box is

18 going to hold onto it. It's going to put it in

19 the ground.

20 Approximately 690 to 750 new trees.

21 Approximately 11,000 square feet of green roof.

22 And approximately 59,000 square feet of permeable

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1 paving. Again, that's in the parking slots along

2 the streets, and whatnot.

3 What that means, it's going to

4 contribute to the amount of water that actually

5 now currently flows off the site, untreated, into

6 the combined sewer. It's going to be held on

7 site. It's going to go into the ground or it's

8 going to be reused to water plants.

9 In terms of, we talked about the storm

10 water regulations. And we talked about how the

11 project exceeds the current very strict, storm

12 water regulations.

13 So, under the storm water regulations

14 -- this is all in the zoning record. The project

15 given its development, it's impervious and all in

16 size, is required to hold onto, retain, not just

17 hold onto it and then just slowly put it into the

18 sewer, but actually hold it on the site,

19 approximately 87,000 cubic feet of water. That's

20 654,000 gallons of water they have to hold on the

21 site.

22 If you look at the storm water

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1 calculations that are in the zoning record,

2 again, this information is in this record as

3 well, in Exhibit C. It's going to exceed that.

4 Approximately 88,000 cubic feet of water will be

5 held onto.

6 Six hundred sixty thousand gallons of

7 water will be held on the site and reused, or put

8 back into the ground. So, that's 660,000 gallons

9 of water that's currently flowing off the site,

10 untreated into the CO, or the CS that will

11 actually be kept on the site.

12 MS. BROWN: So, is it your opinion

13 that LEED-ND Gold and these storm water retention

14 features of the project rise to the level of

15 special merit for this project?

16 MR. DETTMAN: Yes.

17 MS. BROWN: Switching to affordable

18 housing. And actually if you could briefly, you

19 mentioned the Zoning Commission, I'm wondering if

20 it would be helpful to the Mayor's Agent for Mr.

21 Dettman to quickly summarize what happened at the

22 Zoning Commission last Thursday?

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1 MR. BYRNE: I don't think that's

2 necessary.

3 MS. BROWN: Okay fine, so that's why I

4 asked.

5 You heard testimony from several of

6 the opponent's witnesses, asserting that the

7 affordable housing component didn't rise to the

8 level of special merit. Do you agree with that

9 testimony?

10 MR. DETTMAN: I don't agree with that

11 testimony.

12 MS. BROWN: And could you explain why?

13 MR. DETTMAN: Sure, and if you want to

14 get into specific questions about the LDDA, I

15 think Mr. Thakkar would be the best person. But

16 under the LDDA, the project is required to devote

17 20 percent of all residential units to affordable

18 housing. Split between household earning no more

19 than 50 percent AMI, or 80 percent MMI, or 60

20 percent AMI when you're talking about the senior

21 affordable.

22 If you wanted to draw an apples to

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1 apples comparison about whether or not this

2 project actually exceeds what would otherwise be

3 required as a matter of right, under the IZ

4 regulations. Even though this project will be

5 exempt from IZ, as a result of the mandatory

6 affordable housing requirement under the LDDA.

7 You essentially, under the zoning

8 regulations that would apply to this project,

9 under the CR Zone, the residential housing

10 component would be required to set aside eight

11 percent of the residential gross floor area of

12 the total.

13 If you take those 20 percent of

14 residential units and compare it to gross floor

15 area, do the calculation. There is a document

16 that said something to the effect of 14 percent.

17 I think that's low. You're probably running

18 around 17 percent of the residential gross floor

19 area in this project being devoted to affordable

20 units.

21 So again, under the zoning regulations

22 under a matter of right IZ it's eight percent.

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1 This is 17 percent. It certainly exceeds what

2 would otherwise be required for a project.

3 MR. BYRNE: And that's based on your

4 analysis of the plans for the buildings, and

5 which units are affordable, and which are market

6 rate, and sort of comparing the square footage of

7 all that?

8 MR. DETTMAN: Correct.

9 MR. BYRNE: Thank you.

10 MR. DETTMAN: So that's just on the,

11 that's gross floor area. But if you were to look

12 at income level. So again, under the zoning

13 regulations in the CR zone, it's eight percent of

14 your residential gross floor area. And that

15 would be devoted, 100 percent of that gross floor

16 area would have to be devoted to households

17 earning no more than 80 percent AMI.

18 As we've discussed, the 20 percent of

19 the residential dwelling units are targeting

20 lower, deeper levels of affordability. Because

21 it's split up between 50, 60 and 80 percent AMI.

22 MS. BROWN: So, you circulated a

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1 housing -- the applicant submitted a housing

2 chart at the last hearings. Could you just

3 identify that for the record. Excuse me.

4 MR. DETTMAN: That was the chart that

5 was handed out that was entitled, "Summary of

6 McMillan Redevelopment Residential Program".

7 There was a typo in the first version that we

8 sent out. And it was later updated. And the

9 updated version should reflect a total

10 residential program of 660 dwelling units.

11 That's the number on the bottom right corner.

12 MS. BROWN: And you were the author of

13 that document?

14 MR. DETTMAN: Yes.

15 MS. BROWN: Ms. Barragan suggested

16 that features of this project are an investment

17 strategy. And consequently don't qualify as

18 special merit. She also said the Class A office

19 and residential buildings for high, middle income

20 class families is not special merit.

21 As an expert in urban planning, do you

22 agree with her assessment?

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1 MR. DETTMAN: No, I do not.

2 MS. BROWN: And could you explain why?

3 MR. DETTMAN: Well, I think there was

4 a, she also made the comment or worked into that

5 comment, about that the housing would be more for

6 wealthy luxury housing and whatnot. And I think

7 that based on what we've discussed here today,

8 it's clearly not going to be completely devoted

9 to luxury housing, high end office and

10 residential.

11 It has a significant affordable

12 housing component as I've just described. And I

13 think, and again, I think that the fact that the

14 affordable housing component far exceeds what

15 would be otherwise required under a matter of

16 rights project, under the zoning regulations,

17 give that its special merit quality with respect

18 to the affordable housing offered.

19 MS. BROWN: Moving onto the health

20 care facility. Ms. Barragan presented to us

21 among, regarding primary care facilities and

22 their distribution throughout the district. And

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1 concluded that there is no need or demand for the

2 McMillan Healthcare Facility as a result.

3 Do you agree with her assessment? And

4 if so, why or why not?

5 MR. DETTMAN: I disagree with that

6 assessment. First, I think that if there's

7 demand in one area in the city, that does not

8 necessarily mean there isn't a demand in other

9 parts of the city.

10 Second, I think that she uses a flawed

11 comparison of data. She provided data on primary

12 care facilities, which just melts it down, basic

13 care. The healthcare facility at McMillan is far

14 more than primary care. It's going to offer

15 specialized care as well, as Mr. Weers testified

16 too, earlier.

17 She also testified to the area to the

18 north of the site in Ward 4, as being a vast area

19 with a shortage of pediatric care access. And

20 again, it's a false comparison in terms of my

21 expert opinion. She claimed that existing black

22 and brown families, mostly east of the river, are

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1 not adequately served.

2 But as Mr. Weers explained in his

3 direct testimony, the ability to create a campus

4 here allows the hospital centers to the north,

5 Children's, MedStar, the opportunity to expand

6 and upgrade their aging facilities, which is

7 vitally important to the provision of healthcare

8 in the district.

9 He explained the facilities to the

10 north are aging and inadequate. And the McMillan

11 site will allow them to shift services to

12 McMillan, renovate their existing facilities and

13 offer better healthcare services to the district

14 as a whole.

15 MS. BROWN: That concludes all my

16 questions for Mr. Dettman.

17 MR. BYRNE: Thank you. Ms. Ferster.

18 MS. FERSTER: Going first to the

19 documents on the LEED certification that you

20 submitted in your testimony regarding the LEED-ND

21 Gold certification. You indicated that the

22 applicant will obtain certification for

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1 buildings. And that LEED certification for the

2 project, you said, and that that's in the Zoning

3 Commission order.

4 So, I'm going to ask you to clarify

5 one aspect of the prior Zoning Commission order,

6 and ask whether or not this, in your view, what

7 this means? So, it states, and this is Paragraph

8 10 of the proposed findings of fact -- sorry, the

9 conclusions of law of the Zoning Commission order

10 on environmental benefits.

11 And it states, the last sentence of

12 that paragraph says, "The applicant shall not be

13 required to obtain the certification from the

14 U.S. Green Building Council." Are you saying

15 that that's going to be changed in the new order?

16 MR. DETTMAN: No, absolutely not. I

17 think you need to read the entire sentence, and

18 let me do that for you. "The Applicant shall put

19 forth its best efforts to achieve a LEED-Silver

20 rating or higher for the buildings on Parcels, 1,

21 4, 5, and 6, but the Applicant shall not be

22 required to obtain the certification from the

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1 U.S. Green Building Council."

2 The first sentence of that paragraph

3 is the one that I read in whole. "The master

4 plan for the overall development for the PUD Site

5 shall be evaluated for LEED-ND development and

6 shall be certified at least LEED-Gold or its

7 equivalent."

8 MS. FERSTER: Okay. So follow-up on

9 that. So, it says, shall be certified, but it

10 doesn't say, who shall certify it? So, is this

11 the U.S. Green Building Council that will certify

12 this for the LEED-ND Gold status?

13 MR. DETTMAN: The LEED rating system

14 is a rating system that's administered by the

15 U.S. Green Building Council, so, yes.

16 MS. FERSTER: Okay.

17 MR. DETTMAN: That's who gives the

18 certifications.

19 MS. FERSTER: Okay, so the U.S. -- and

20 you also testified that your request for

21 certification, now we know from the U.S. Green

22 Building Council, will be made after the project

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1 is constructed and occupied. Is that correct?

2 MR. DETTMAN: Yes, it doesn't happen

3 when you submit for a building permit or when you

4 get your building permit. It's an ongoing

5 process that takes place over the course of

6 construction. And concludes either near

7 completion, or upon completion of the project.

8 MS. FERSTER: And why is that an

9 ongoing process? Is that because they may ask

10 for changes during the course of your

11 certification?

12 MR. DETTMAN: I think it's more so the

13 fact that, you know, part of the -- whether it's

14 an individual building or a neighborhood

15 development like we're talking about -- it's

16 performance driven.

17 So, you have to see what systems are

18 in place in these buildings. And how those

19 systems are up and running to measure their

20 efficiency. To make sure they're achieving the

21 level of efficiencies and sustainability that

22 they have to in order to get to the LEED-ND Gold.

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1 MS. FERSTER: So it's not possible to

2 determine prior to, during the construction

3 phase, you know, during that preparation of

4 construction drawings, whether or not they will

5 meet the LEED-ND Gold certification requirements?

6 MR. DETTMAN: I think you put together

7 a design very early on. And you start to measure

8 the performance of that project, right when you

9 put pen to paper. Like I said during the initial

10 Zoning Commission proceeding. And now with this

11 scorecard that was prepared two years after the

12 initial Zoning Commission, and it will continue

13 on through construction.

14 So, certainly when they're designing

15 the buildings, when they're designing the storm

16 water management, when they're designing all of

17 the permeable paving that's going in the streets,

18 they know exactly what those particular materials

19 and systems can do with respect to an energy,

20 performance, with respect to other types of

21 environmental sustainability performance.

22 But certainly it's an ongoing feature.

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1 You can see when you turn the system on, that it

2 actually does what it needs to do.

3 MS. FERSTER: Okay. But presumably,

4 if you design it appropriately, it will do what

5 it's supposed to do. Isn't that correct?

6 MR. DETTMAN: Sure.

7 MS. FERSTER: Okay, so why can't you

8 ask for the certification at the design phase?

9 Why does this have to wait until after

10 construction and occupancy?

11 MR. DETTMAN: You would have to ask

12 the U.S. Green Building Council.

13 MS. FERSTER: You mean they would not

14 let you --

15 MR. DETTMAN: If I was making the

16 choice I would have them do it --

17 MS. FERSTER: You mean they would not

18 let you submit it until after the building's

19 fully constructed?

20 MR. DETTMAN: No, you submit your

21 application in the beginning. And then it goes

22 through. And there are several steps, through

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1 construction. And then the process ends at the

2 end of construction.

3 MS. FERSTER: Okay --

4 MR. DETTMAN: But they are out at the

5 site multiple times. You are making multiple

6 submissions. You're making your preconstruction

7 submission. You're making a constructed

8 submission. You're making a final one.

9 MS. FERSTER: Okay. And do you get a

10 preliminary -- I mean, it seems to me that it

11 could be a problem. If you've promised and

12 created this enforceable, you know, condition to

13 the Zoning Commission order that you shall be

14 certified, to wait until it's constructed and

15 occupied. And then have LEED say, "Oh, sorry you

16 don't meet it." You've got to go back and

17 redesign something very complicated and

18 expensive.

19 MR. DETTMAN: Well, at the end of

20 construction if you can't meet LEED-ND Gold, you

21 can't get your certification, you'd be in

22 violation of the Zoning Order, and that's an

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1 enforcement issue.

2 MS. FERSTER: That's correct. That's

3 correct, and presumably you --

4 MR. DETTMAN: It's the same for every

5 project in the city.

6 MS. FERSTER: Okay, and then --

7 MR. DETTMAN: You see -- as was

8 testified to as LEED-Platinum. So they're doing

9 it --

10 MS. FERSTER: Okay, and then what

11 happens? So, let's just play that out here.

12 Okay, you don't get your LEED-Gold certification.

13 And you're in violation of the Zoning Commission

14 order. And perhaps you also are in violation of

15 the Mayor's Agent order.

16 If the Mayor's Agent includes that

17 your status as a LEED-ND Gold project, as part of

18 the project's special merit. How do you deal

19 with that? How do you go, deal with the fact

20 that it's after the fact? How is it enforced?

21 MR. DETTMAN: I cannot testify to the

22 specifics of what enforcement's desk ECR would

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1 say. But what I can say, in the project I've

2 worked on, that have to get LEED certified

3 anything, Silver, Gold, Platinum, LEED-ND,

4 individual building, that that has not happened

5 because you're designing it to that level from

6 the very beginning.

7 Now, I suspect that the worst case

8 scenario of this event, you could get your CFO

9 pulled because you're in violation of a PUD the

10 order.

11 MS. FERSTER: Okay. I'm a little

12 confused about this reference guide for

13 neighborhood development. This is something that

14 has been developed by the U.S. Green Building

15 Council. It's a reference deskbook, so this is

16 not a document that's been prepared by the

17 applicants?

18 MR. DETTMAN: No, that's a reference

19 guide issued by the U.S. Green Building Council.

20 MS. FERSTER: All right, so --

21 MR. DETTMAN: And it's an excerpt that

22 they put on their website for public consumption.

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1 And if you want the whole thing, you can pay for

2 it.

3 MS. FERSTER: Okay. Because I got

4 very confused, because when you directed us to

5 Page 40, the quick reference guide, it looks --

6 this has nothing, this reference here has nothing

7 to do with your project? There are things that

8 are checked, yes and ratings, et cetera. This is

9 just an example? - Or did you fill this out?

10 MR. DETTMAN: No, no. This is, it's

11 not an example. This not an example project.

12 This is taking you through all of the different

13 credits of the LEED-ND scoring system. And

14 telling you which ones are prerequisites, they

15 show up as required. Or if it's not required,

16 it's telling you how many potential points you

17 can get. So under preferred locations, you can

18 get a total of ten points.

19 And then it also tells you under what

20 categories it falls under. If you're highly

21 scored, on preferred locations, if you get a ten

22 out of ten.

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1 MS. FERSTER: Yes.

2 MR. DETTMAN: You're doing good things

3 for climate protection. You're doing good things

4 for infrastructure efficiency. You know, the

5 public health, walkable, and then these water

6 protections.

7 So, it's telling you what aspects of

8 environmental impact, what aspects of smart

9 growth, social equality, whatnot. You know,

10 which ones you fall into in a particular

11 strategy. So, this is not specific to McMillan.

12 MS. FERSTER: So this is just

13 something -- okay. I understand that. So, it

14 says, it has some Y's and X's. What do those Y's

15 and X's mean?

16 MR. DETTMAN: The Y's are yes. And

17 the X's are, and you're good on that category.

18 MS. FERSTER: But who's good? I don't

19 understand this.

20 MR. DETTMAN: Okay, that's what I

21 attempted -- and maybe I didn't do a very good

22 job at -- but let's, if you look at the Perkins

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1 Eastman document. And go to the scorecard in the

2 back. And again, LEED is a total number of

3 points. You add it up. And this scorecard for

4 McMillan shows 70 total points right now, which

5 falls into the Gold range.

6 But if we look at, if we're looking at

7 the first page of the scorecard --

8 MS. FERSTER: And this is not

9 paginated. But I'm seeing the scorecard --

10 (Simultaneous Speaking)

11 MR. DETTMAN: That's why I said first

12 page of the scorecard.

13 MS. FERSTER: -- starts at --

14 MR. DETTMAN: Keep going back. Keep

15 going, keep going.

16 MS. FERSTER: That's really small

17 print.

18 MR. DETTMAN: Okay, I hear that.

19 Okay, so under the second category -- the first

20 category is called, smart location and linkage.

21 Do you see that?

22 MS. FERSTER: Yes.

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1 MR. DETTMAN: Go to the second

2 category, neighborhood pattern and design. This

3 is the one that I used during my testimony. If

4 you go to the fourth one down. It's called,

5 walkable streets.

6 No, stay under neighborhood pattern

7 and design.

8 MS. FERSTER: Okay, yes.

9 MR. DETTMAN: Fourth one down.

10 MS. FERSTER: Yes.

11 MR. DETTMAN: Walkable streets, right?

12 MS. FERSTER: Right.

13 MR. DETTMAN: So, back on the

14 reference guide, you will see under neighborhood

15 pattern and design, fourth one down, walkable

16 streets. You can get a total of 12 points.

17 MS. FERSTER: Yes.

18 MR. DETTMAN: You go back to the

19 McMillan scorecard, seven and two is next to

20 walkable streets, right?

21 MS. FERSTER: Yes.

22 MR. DETTMAN: Okay, so nine points.

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1 It's scoring nine out of 12 points under the

2 walkable streets category.

3 MS. FERSTER: And how about that X

4 under climate protection? What does that mean?

5 MR. DETTMAN: That means that if you

6 design something under the LEED rating system

7 that scores on the walkable streets category,

8 that is assisting with climate protection.

9 MS. FERSTER: Okay. All right. So, I

10 mean let's look at the --

11 MR. DETTMAN: I don't know if you're

12 going now, if you're going to endeavor to go

13 through each one of these. But I would caution

14 you that the LEED system is in its totality. You

15 could go through one, you know, one-for-one of

16 these and debate them all day.

17 But at the end of the day, the

18 scorecard adds up to a certain number of total

19 LEED points. And the LEED points is what, the

20 total LEED points is what's deriving your LEED

21 certification level.

22 MS. FERSTER: No, we'll deal with that

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1 more in our rebuttal. I don't think we have time

2 today to go over each one of them, but I did want

3 to ask you about under the smart location and

4 linkage, access to quality transit. There's a

5 total of seven LEED points that you can get for

6 that. And that's obviously a significant factor

7 in your acquisition of certification.

8 And I'm looking at your own self-

9 certification project checklist. And for access

10 to quality transit, you've given yourself seven

11 points. And so --

12 MR. DETTMAN: This is what the person

13 at Perkins, who is the LEED expert in preparing

14 that scorecard gave. I did not fill that

15 scorecard out.

16 MS. FERSTER: Well, we were told that

17 you were the person who would be testifying about

18 the LEED-ND Gold --

19 MR. DETTMAN: Yes.

20 MS. FERSTER: -- status, so I'm sorry

21 that Mr. Bell isn't here. You saying, you cannot

22 answer that question, because you did not prepare

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1 it?

2 MR. DETTMAN: You can ask your

3 question. I suspect you're going to ask why it's

4 a seven and not --

5 MS. FERSTER: Well, I mean, you know,

6 there's transit which of course, you know, would

7 include a bus or shuttle. And you do have

8 shuttles. But this requires quality transit.

9 Okay, so why, what is the difference between

10 access to transit as a LEED certification rating

11 point, and access to quality transit?

12 MR. DETTMAN: Well, that subjective

13 determination is up to the U.S. Green Building

14 Council when you submit your package to them.

15 And they're going to see that you gave yourself

16 this under access. And this under quality

17 transit. And they're going to question you. And

18 you have to provide your very thorough

19 justification.

20 MS. FERSTER: And what will your

21 thorough justification be for giving yourself the

22 highest rating for access for quality transit,

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1 when you are a mile and a half from the Metro?

2 MR. DETTMAN: Because right now there

3 is nothing there that will help you get to

4 Metrorail. And as a result of this development,

5 this site is becoming increasingly accessible,

6 not only through the walkability, you can walk to

7 transit now. You can walk through this site to

8 the transit that goes around the site.

9 MS. FERSTER: Who's you?

10 MR. DETTMAN: Anyone who goes there,

11 lives there, works there, plays there.

12 MS. FERSTER: All right. Well let me

13 --

14 MR. DETTMAN: If you can't walk

15 through the site now, you will now --

16 MS. FERSTER: Okay.

17 MR. DETTMAN: -- you will afterwards,

18 but also it's the shuttle system that's going to

19 be providing you access.

20 MS. FERSTER: All right, well --

21 MS. FERSTER: Triple access outside to

22 the Brooklyn Metro.

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1 MS. FERSTER: Okay, well let me ask

2 you this then, since you bring this up. You're

3 familiar with the transportation performance plan

4 and those documents that detail the transit

5 commitment? The extent of the applicant's

6 transit commitments for shuttle buses?

7 MR. DETTMAN: I'm familiar with the

8 TNP plan that is in the Zoning Commission's

9 letter.

10 MS. FERSTER: Right, okay yes. Isn't

11 it correct that the number of shuttle buses that

12 the applicant has agreed to provide was

13 calculated based on the number of trips

14 anticipated to and from the site? Isn't that

15 correct?

16 MR. DETTMAN: I don't know that that's

17 correct?

18 MS. FERSTER: Okay, can you point to

19 me what document indicates that the number of

20 transit vehicles, shuttle vehicles that the

21 applicant will provide can accommodate anybody

22 from the neighborhood, from the Washington

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1 Hospital Center?

2 MS. BROWN: I'm going to object. This

3 has gone on and I, you know, have been trying to

4 limit my objections, but we're far afield here on

5 this whole transportation issue. Getting into

6 the Zoning Commission record and the

7 transportation plan.

8 So, we're going to be LEED-ND Gold,

9 and we're going to qualify for points. And it's

10 a fluid situation until we get certified.

11 MS. FERSTER: Well, I mean he did just

12 testify that it's quality transit. That you gave

13 yourself the highest rating because you will have

14 shuttle buses that will allow anybody including

15 perhaps, all the people who go to the Washington

16 Hospital Center, who currently, you know, have to

17 take the Metro bus, will now be able to take your

18 shuttle buses. How many trips is that by the

19 way?

20 MS. BROWN: Well, I think that we're

21 waiting for the objection to be sustained or

22 overruled.

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1 MR. BYRNE: Yes, I really don't want

2 to go back over the transit stuff. This is what

3 the LEED-ND Gold requirements are. And they have

4 committed to making them. That's going to be

5 part of the Zoning Commission order. And I think

6 that's probably as far as we want to go in this

7 hearing.

8 MS. BROWN: Well, we will again, you

9 know, it is late. And everybody's tired. So, I

10 have a number of questions about this self-

11 certifications that's been provided. And I think

12 we will address it in our surrebuttal then in

13 some detail. And then that's the way we'll do

14 it.

15 It's clearly relevant, you know, the

16 applicant has offered the LEED-ND Gold status as

17 being it's, I think, you know, important part of

18 its special merit. And so, we really do need to

19 inquire into each and every element.

20 But I understand, you know, that it is

21 late. So, if that is appropriate we will just

22 simply address it in surrebuttal.

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1 MR. BYRNE: So, golly. I really don't

2 want to go through the whole LEED-Gold and ND --

3 MS. BROWN: Well, I would suggest we

4 do it on written --

5 MR. BYRNE: I'm not going to assess

6 myself, whether they meet LEED-ND Gold. They

7 have committed to it. And it's going to be part

8 of the Zoning Commission order that they have to

9 do it. And, you know, if you can show that's

10 it's like wildly impossible, that would all

11 right. But if it's like, item by item -- I

12 really don't. I'm really not wanting to --

13 MS. FERSTER: Well let me suggest

14 this, Mr. Byrne. I think it's relevant. Clearly

15 relevant. You know, they submitted a checklist

16 that says they are meeting and, you know, and

17 performing to the absolute maximum every single

18 element virtually, in the certification

19 checklist. It was self-certification. And, you

20 know, as I said.

21 MR. BYRNE: It's not a self-

22 certification. They're certified --

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1 (Simultaneous speaking)

2 MS. FERSTER: This is a self -- the

3 only thing in the record is going to be their

4 self-certified --

5 MR. BYRNE: But I am pressing on that.

6 I'm pressing on what LEED-ND Gold consists of in

7 a general way. And the fact that it's part of

8 their commitment. That's the only thing that I

9 care about.

10 MS. FERSTER: Right, and I think it's

11 in --

12 MR. BYRNE: I think if there are

13 elements that are going to fail on transit, but

14 they're going to exceed on water retention. I

15 don't need to deal with that.

16 MS. FERSTER: But you did acknowledge

17 that if they cannot conceivably meet the LEED-ND

18 Gold standard, it's relevant here today. Because

19 that is a basis for special merit because the

20 only way, that's the basis for special merit.

21 The only way to enforce that is after

22 this project is fully constructed and occupied.

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1 So, at which point all the vaults will be

2 demolished. And the irreparable impacts will

3 have occurred.

4 And again, I would suggest that

5 applicants, given the lateness of the day, that

6 our surrebuttal on this point be in writing. As

7 Ms. Brown suggested. Otherwise, we're going to

8 be here for quite some time.

9 MR. BYRNE: Well, not actually though

10 because we have to get out in like tonight.

11 MS. BROWN: Well, and furthermore

12 we're not going to be long. Because you just

13 ruled on this issue, that we're not going to go

14 through every point. So I don't know why she

15 thinks that we are.

16 MS. FERSTER: Well, and knowing my

17 questions, I understand that you've ruled and I'm

18 not going to be allowed to question the witness

19 any further in cross examination. But we have a

20 surrebuttal opportunity and we intend to use it.

21 We intend to -- which would be very

22 appropriate for us to be able to show that, you

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1 know, that LEED-ND certification is unlikely for

2 this project. And there should be a finding made

3 specifically that's going to be basis for special

4 merit.

5 MR. BYRNE: I mean, I think that you

6 could show that it's essentially fraudulent, that

7 no one can reasonably expect that they're going

8 to get ND-Gold certification. But I am not going

9 to find whether it's likely or not that they're

10 going to get it.

11 MS. FERSTER: I didn't mean to presume

12 to even begin to guess what you will or will not

13 find. I'm just simply talking --

14 MR. BYRNE: I'm talking about the

15 standard, I'm going to find.

16 MS. FERSTER: Right.

17 MR. BYRNE: And I feel like I'm being

18 excessively lenient as it is to go into that

19 element at all, because it does seem to me that

20 it's essentially an issue with the Zoning

21 Commission. And I was very clearly instructed by

22 the Court of Appeals not to wander into the

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1 territory of the Zoning Commission. And I'm

2 eager to not do that.

3 And they have, it's part of their

4 order that they are going to -- I take your point

5 -- that the demolition issue has the sensitivity,

6 right. That if they don't get certified, it's

7 going to be too late as far as these, the cells

8 go. And perhaps some of this other.

9 So, I'm willing to hear that it's like

10 totally impossible for them to do it. That this

11 is like totally made up, if you want to put that

12 face on it. But I am not going to go item by

13 item through the certification.

14 I take this as offer of what LEED-ND

15 Gold is. So that simply, because there was a

16 question as to whether it was just either

17 frou-frou kind of stuff that nobody would even

18 care about. And so that's why I understand that

19 we have an interest to go to.

20 MS. FERSTER: And I appreciate the --

21 MS. BROWN: That's right, Mr. Byrne.

22 This information was solely submitted to the

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1 record in response to your question. You asked

2 what LEED-ND Gold meant?

3 MR. BYRNE: I asked what LEED-ND Gold

4 is.

5 MS. BROWN: And that's it.

6 MS. FERSTER: Well, let me just say

7 that we do have a Perkins Eastman document and

8 that person who apparently prepared it is not

9 here, which self-evaluates this project for LEED

10 certification. If you would like to withdraw

11 this document --

12 MR. BYRNE: That's not necessary.

13 MS. FERSTER: Okay, well again, I

14 think I you have ruled --

15 MR. BYRNE: It's just information as

16 to what LEED-ND Gold consists of.

17 MS. BROWN: And I think that Ms.

18 Ferster has a basic misunderstanding of the

19 process for getting certified. This is just one

20 step in a long process that Mr. Dettman testified

21 to. And to say that you're locked into some

22 document that's a best guess at this time, that's

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1 -- and, you know, the applicant has been talking

2 to the Green Building Council about how to work

3 this.

4 It's a collaborative process. And to

5 sit here and have the Friends of McMillan Park

6 interject themselves into this process and start

7 flyspecking is completely unproductive, and

8 irrelevant.

9 MS. FERSTER: As I said, I have

10 accepted that we're not going to ask anymore

11 cross examination questions on this document.

12 So, that's not the issue. I think maybe we need

13 to have a broader discussion about whether, how

14 long we're going to continue tonight? And how

15 many more witnesses there are? And how we're

16 going to deal with surrebuttal? Because that was

17 all I was asking about.

18 MR. BYRNE: So, let's talk about that.

19 Let's talk about that. It's an unhappy topic,

20 we're all supposed to be done today, but we're

21 not. Mr. Thakkar hasn't testified yet. And I'm

22 sure that they're not going to -- and they

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1 haven't put on surrebuttal yet.

2 And I think the question of whether

3 you would do your surrebuttal just on paper, is a

4 question I'd like Ms. Brown's views on. Because

5 if there are advantages and disadvantages perhaps

6 from your point of view. I just would like to

7 know what you, since you suggested it, and so.

8 MS. FERSTER: Well, actually I

9 suggested it only because Ms. Brown had suggested

10 it last time --

11 MR. BYRNE: Yes, then when you both --

12 MS. FERSTER: And she had, yes --

13 MR. BYRNE: -- might do rebuttals in

14 writing.

15 MS. FERSTER: Just to clarify.

16 MR. BYRNE: Okay, so --

17 MS. BROWN: I'm sorry, I thought --

18 you ready for a response from me?

19 MR. BYRNE: Please.

20 MS. BROWN: Yes, I'm sorry. Okay. I

21 guess I have two thoughts on that. I'm not sure

22 how to exactly handle the finishing up cross

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1 examination of Mr. Dettman, if we still have

2 time. But I doubt if we have time this evening.

3 MR. BYRNE: I tend to agree, negative,

4 fives --

5 (Simultaneous speaking)

6 MS. BROWN: So, you know, I think if

7 you had suggested earlier in the day that the

8 record's going to be open for 30 days, and I

9 guess there are two ways of trying to do this all

10 on the paper documents.

11 Or if in that case we would have Mr.

12 Thakkar submit his testimony in writing. They

13 could have cross examination somehow, or not

14 cross examination, sorry. Have responses to

15 that, and leave it at that. And then have that

16 all fall within the 30 day period.

17 MR. BYRNE: I remember you being

18 receptive of them doing their surrebuttal on

19 paper. If that's what they wanted to do.

20 MS. BROWN: Yes.

21 MR. BYRNE: Okay, what do you guys

22 want to do?

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1 MS. FERSTER: I mean, that's

2 acceptable to me, that, and I'm sorry, it would

3 be written surrebuttal by Mr. Thakkar.

4 MS. BROWN: So he would submit his

5 rebuttal testimony in writing.

6 MS. FERSTER: Written rebuttal, sorry.

7 MS. BROWN: You could finish, you

8 could respond to Mr. Dettman's testimony in

9 writing. Finish your, Mr. Otten could respond to

10 Mr. Dettman's testimony.

11 And I think any, you know, normally I

12 guess I would have an opportunity, cross on

13 surrebuttal, or waive that. And then put it onto

14 the draft order, closing and just fold it all in

15 there. And you can wade through it. As to which

16 is argumentative and which isn't.

17 MS. FERSTER: Well, okay, so just one

18 clarification. We would definitely, we do

19 consent to doing a written surrebuttal. But it

20 has to proceed the draft order. Because we have

21 to see their rebuttal in order to prepare the

22 order. So, there has to be a time difference

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1 between when the rebuttal, surrebuttal, and draft

2 order are issued.

3 MR. BYRNE: Yes, I know that. So how

4 quickly could you guys do it?

5 MS. FERSTER: Okay, we have --

6 MR. OTTEN: Can I weigh in? I'm

7 sorry.

8 MR. BYRNE: Right.

9 MR. OTTEN: Mr. Byrne, I really, are

10 we completely out of time today? Because I have

11 questions for Mr. Dettman. I think the issues

12 he's raised today are live right now. My

13 questions were derived based on what he presented

14 today.

15 MR. BYRNE: I hear you, but

16 unfortunately, no, I think the Zoning Commission

17 is in here at 6:30 and we're going to, we have to

18 get out. And they have to get in to get ready,

19 so I'm --

20 MR. OTTEN: Can I do five minutes of

21 questioning?

22 MR. BYRNE: Five minutes, well if that

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1 means that Mr. Dettman could go. I mean could

2 you do, can we do five minutes? Does every --

3 can we consent to that? Okay. You've got five

4 minutes.

5 MR. OTTEN: Okay, just to clarify.

6 And his rebuttal is still going to be submitted

7 in writing?

8 MS. BROWN: No, I mean I think he will

9 be done.

10 MR. BYRNE: He just testified. He's

11 testified.

12 MS. BROWN: He will be done, yes.

13 MR. OTTEN: He will be done.

14 MS. FERSTER: But we have surrebuttal.

15 MR. OTTEN: Okay, so can I just ask

16 some questions? The Silver Jacket report, it

17 says, that you just put on the record. It

18 describes the where was it, the second page, that

19 the DC Silver Jackets is an interagency team

20 comprised of members from federal District of

21 Columbia and regional agencies.

22 Do you know which agencies those are?

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1 And where could I find that?

2 MR. DETTMAN: On their website. I

3 know it's U.S. Army Corps of Engineers --

4 PARTICIPANT: D.C. DOE?

5 MR. DETTMAN: DOE, could be the Office

6 of Planning.

7 MR. OTTEN: Okay, and it does state

8 that recent studies show that the flood losses

9 are from interior flooding are on the rise.

10 Correct?

11 MR. DETTMAN: That's what it says.

12 MR. OTTEN: And so, you talked about

13 some of the mitigation issues there to deal with

14 that, including the First Street Tunnel project,

15 which was 2013, right? But doesn't that deal

16 with problems that existed years before some of

17 the climate change modeling that this report

18 talks about?

19 MR. DETTMAN: My understanding is that

20 DC Water in designing that project designed it

21 not for just the existing problem. They looked

22 toward, you know, they looked on towards the

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1 future and sized it accordingly.

2 MR. OTTEN: Okay. And just real quick

3 on the LEED stuff. Does it, it's true that it

4 does not require the sharing or equity of costs

5 of a project's impacts and needs, like

6 infrastructure and transit, right?

7 The LEED certification does not

8 measure or seek equitable sharing between public

9 and private resources on the conditions at the

10 site, or needs around the site as it's operated?

11 MR. DETTMAN: I don't understand the

12 question.

13 MR. OTTEN: So for example, the

14 infrastructure in the transit, the new pipes and

15 everything like that. Does the LEED go into

16 that? Like the sharing of those costs?

17 MR. DETTMAN: I still don't understand

18 the question. I mean, LEED is about designing

19 about a project in order to minimize impacts on

20 the environment.

21 MR. OTTEN: Okay. And right now it's

22 fair to say there's no emissions, noise, water,

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1 air pollution coming from the site?

2 MR. DETTMAN: Yes.

3 MR. OTTEN: And it's fair to say that

4 noise, air, water these types of emissions will

5 go up with this project?

6 MR. DETTMAN: Like I testified at the

7 Zoning Commission, any project that changes the

8 existing condition of a site, has impacts both

9 beneficial, intangible, and adverse.

10 MR. OTTEN: And then, so then you

11 can't conclude that the project won't contribute

12 to climate change, right?

13 MR. DETTMAN: Say that again.

14 MR. OTTEN: If it's going to go up, if

15 these emissions, and things will go up, you can't

16 conclude that the project won't contribute to

17 climate change, right?

18 MR. DETTMAN: I don't think you can

19 ever conclude that a project will not contribute

20 to climate change.

21 MR. OTTEN: Okay. And you said that

22 the project, you said that the project will not

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1 contribute to climate change just now, in the

2 testimony. But has the project and its size,

3 location, context has that been measured against

4 any climate change modeling in DC that you're

5 aware of?

6 MR. DETTMAN: I'm sorry, I was, the

7 last statement you said, I wanted to clarify. I

8 did not testify that this project would not

9 contribute to climate change. What I said was, I

10 think that given that this is going to be a LEED-

11 ND Gold certified project, I think it would be

12 hard pressed for anyone to argue that this would

13 have an adverse impact on climate change.

14 MR. OTTEN: But as far as, you know,

15 isn't it true that the project in the reviews so

16 far, has not been evaluated against climate

17 change modeling? So, in other words, the

18 project, as it sits at that site, has not been

19 measured against the modeling of climate change

20 impacts in the city?

21 MR. DETTMAN: You know, I look at

22 climate change as being part and parcel of an

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1 analysis of a project's environmental impacts.

2 And the Zoning Commission has already ruled upon

3 the project's impacts on the environment.

4 MR. OTTEN: Okay, you mentioned that

5 the storm water mitigation here, as part of this

6 percolate. It's going to be held on site, put in

7 the ground, are the quotes I heard. Where does

8 it go once it's in the ground? Where does the

9 water go, where's the storm --

10 MR. DETTMAN: It goes into the ground,

11 into the ground water.

12 MR. OTTEN: Goes into the ground, and

13 isn't it the case, there's no hydrology studies

14 associated with this project?

15 MR. DETTMAN: If there are, I'm not

16 aware of them.

17 MR. OTTEN: Okay. And just for the

18 record, the storm water mitigation you talked

19 about. That's required by law. You mentioned

20 that, right?

21 MR. DETTMAN: Meeting the DC storm

22 water regulations in terms of the amount of, the

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1 volume of water that you have to retain, is

2 required. And as I testified, the project will

3 exceed the minimum storm water requirements under

4 the recent very strict storm water regulations.

5 MR. OTTEN: Okay, and so but that's in

6 essence to mitigate the impact of the project.

7 The paving and, the development?

8 MR. DETTMAN: I wouldn't say that the

9 new storm water regulations are centered around

10 fortune by DOEE were for purposes of mitigating

11 projects. I think it was a very responsible step

12 towards environmental sustainability. And the

13 right thing to do instead of putting all those

14 volumes of water into gray water systems, like

15 pipes. You keep it on your own property and you

16 either reuse it, or you let it go into the

17 ground. I think that was a very forward

18 thinking, environmentally sustainable way to go

19 about it.

20 MR. OTTEN: But, but --

21 MR. BYRNE: Times up.

22 MR. OTTEN: Times up.

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1 MR. BYRNE: It's over, yes.

2 MR. OTTEN: I'm not done.

3 MR. BYRNE: Ah, five minutes, your

4 five minutes is done.

5 MR. OTTEN: You're kidding. I mean I

6 said that kind of colloquially. I mean I --

7 MR. BYRNE: I didn't take it that way.

8 MR. OTTEN: Well, I don't know what

9 time we have to.

10 MR. BYRNE: I thought you said five

11 minutes, and I gave you five minutes.

12 MR. OTTEN: Well, I have several

13 important questions, the housing is issue here.

14 The LDA is at issue.

15 MR. BYRNE: Then you shouldn't have

16 told me five minutes, then, because it's obvious

17 you had no intention of doing it.

18 MR. OTTEN: I'm trying to ask

19 questions as quick as I can.

20 MR. BYRNE: But you misled me by

21 telling me that --

22 MR. OTTEN: I misled you, okay. Well,

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1 I still have questions, I don't know what we do

2 about that now. There's a very real issue about

3 housing at 80 percent MMI, when the requirement

4 now by law is 60 percent AMI.

5 And I have questions around the GFA,

6 which is very much a contested issue, maybe.

7 MR. BYRNE: But, but they're not

8 through with it, I mean --

9 MR. OTTEN: Eighty percent MMI is part

10 of this, it's part of what they're claiming as

11 special benefits.

12 MR. DETTMAN: I can answer that

13 question quickly, the requirement under the

14 existing IZ regulation if that this project was,

15 you know, be presented to the Zoning Commission

16 today, is 60 percent for rental units, 80 percent

17 for ownership units.

18 This is a vested ZR 58 project under

19 the IZ regulations that were in existence in 2014

20 and before that, which is 50 percent and 80

21 percent.

22 MR. OTTEN: And --

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1 MR. DETTMAN: The requirement that

2 we're applying to this project would be 80

3 percent because it's a CR zone. And so 100

4 percent of the affordable set-aside would have to

5 be devoted to households earning no more than 80

6 percent. That is the metric which should be

7 applied.

8 MR. BYRNE: And that's been cleared

9 all along.

10 MR. OTTEN: And isn't it the case that

11 you really can't do a matter of right comparison

12 because currently the site is unzoned? How do

13 you make a matter of right comparison on an

14 unzoned site?

15 MR. BYRNE: We're out of time. I

16 really have to bring this to a stop. I guess the

17 question is whether it really is feasible to do

18 this on paper or not? Or whether we can have a

19 meeting like in a conference room at the Office

20 of Planning with some of the witnesses to get

21 through this. I feel I don't want, people's time

22 is valuable and all that.

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1 MS. BROWN: If that's something that

2 could have happened this week that would be one

3 thing. But otherwise, you know, I have kind of

4 mapped out a schedule. And I think any of the

5 questions that Mr. Otten has, I think could be,

6 argue against whatever Mr. Dettman testified to.

7 I don't know that that would be, you know, that

8 he's going to get any answers that are helpful to

9 him in cross examination. I think you'd probably

10 have better luck arguing against what he said.

11 MR. OTTEN: No, no I'd like to

12 understand it.

13 MS. BROWN: So my suggested schedule

14 would be if we could do this on the pleadings,

15 would be that Mr. Thakkar submit his written

16 rebuttal testimony by Wednesday, September 20th.

17 Surrebuttal comes in Monday the 25th. I

18 anticipate that the transcript will be ready by

19 October 2nd, two weeks from now.

20 And then everybody could have by the

21 30 close on October 18th, any late submissions

22 from the public that wanted to submit anything.

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1 And the proposed findings of fact and conclusions

2 of law which would include any closing or

3 argumentative statements that the parties wanted

4 to make.

5 MS. FERSTER: Wait, on the October

6 18th is the last?

7 MR. OTTEN: Well this is what is being

8 suggested.

9 MS. FERSTER: Okay, so I have one,

10 well let me just say one initial suggestion is

11 that I would suggest that Mr. Thakkar get his

12 testimony in sooner than the 20th, Wednesday the

13 20th, you know. Because he could do it tomorrow,

14 you know. Obviously, he was prepared to deliver

15 it. So that would be one comment.

16 And then --

17 MS. BROWN: And then surrebuttal would

18 it be due the same, immediately thereafter, the

19 next day? Because that was supposed to happen

20 today as well.

21 MS. FERSTER: All right. Okay, I'll

22 give you that. I'm not going to push back on

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1 that. So, October 2nd, transcript is ready. And

2 then October 18th, the 30 days closes for written

3 testimony. And then so, would, I guess what I'm

4 saying is we do need 30 days from the date the

5 transcript is issued.

6 So, if the transcript is ready on

7 October 2nd, then we would want 30 days from that

8 date.

9 MS. BROWN: I think that two weeks is

10 fair because we've been going at this since July

11 14th and I know I've already started a draft

12 order.

13 MS. FERSTER: I have not. This is a

14 voluminous record. I really --

15 MR. BYRNE: Close enough.

16 MS. FERSTER: It's pretty typical to,

17 in my experience that we have 30 days from the

18 close of the record, and the preparation of the

19 transcript for us to prepare proposed findings of

20 fact and conclusions of law.

21 And, you know, I would just suggest

22 that we do need that time.

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1 MS. BROWN: In which case then, Mr.

2 Thakkar can get his surrebuttal in tomorrow. Ms.

3 Ferster can get her, or get his rebuttal,

4 surrebuttal in by Wednesday and we can accelerate

5 this whole schedule by at least a week.

6 MR. BYRNE: Well, we don't know really

7 what dates until I get the transcript.

8 MS. BROWN: I think --

9 MR. BYRNE: We'll probably have the --

10 sir, can you estimate when we can have the

11 transcript?

12 COURT REPORTER: It's approximately

13 two weeks. I couldn't tell you for sure. But

14 it's approximately two weeks.

15 MR. BYRNE: So, that would be sooner.

16 That's basically October 2nd. That's basically

17 October --

18 MS. FERSTER: We would prefer to have,

19 I mean that's all I can say, is we would prefer

20 to have 30 days with the transcript.

21 MS. BROWN: Well I find, can I have

22 the paper back.

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 439

1 MR. BYRNE: All right, you know, let's

2 go with what we've said. Mr. Thakkar by the

3 20th, surrebuttal by the 25th. Transcript on the

4 2nd. Public submissions on the 18th. And

5 proposed findings on November 2nd. And we'll try

6 to be expeditious. I'll --

7 MS. BROWN: Let me ask this, if it's

8 30 days from the day the transcript is issued, so

9 if we had it expedited than, that would

10 accelerate the schedule?

11 MR. BYRNE: Can you expedite a

12 transcript?

13 MS. BROWN: Yes, you have to award it.

14 So it would be 30 days from the transcript, so --

15 MR. BYRNE: I just think, yes, I just

16 set a certain date though.

17 MS. BROWN: So we have the parameters

18 here of November 2nd, or sooner if the transcript

19 is --

20 MR. BYRNE: Is available.

21 MS. BROWN: -- available sooner. Or

22 later if the transcript is available later.

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1 MR. BYRNE: Okay, yes. That's, I like

2 that.

3 MS. FERSTER: Well then just to

4 clarify. Then somebody needs to specifically

5 tell us the minute the transcript is available.

6 MR. BYRNE: That's right, can we do

7 that? Yes, thank you.

8 MR. OTTEN: And Mr. Byrne, I would

9 like, I seem to be left out here. I would like

10 to put on the record. I don't have written

11 rebuttal from Mr. Dettman. I've been prevented

12 from cross examining that written rebuttal. I

13 don't know, this would be the second now witness

14 on the applicant's side that I've not been able

15 to fully cross examine, DMPED, and now Mr.

16 Dettman.

17 Mr. Dettman is critical to this

18 because he's informing you of the comprehensive

19 plan policies involved here.

20 MR. BYRNE: He didn't say anything

21 about the comprehensive plan.

22 MS. BROWN: And furthermore --

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1 (Simultaneous speaking)

2 MR. OTTEN: There's a lot he says --

3 MS. BROWN: -- you have to cross

4 examine his written --

5 MR. OTTEN: -- that I want to cross

6 examine.

7 MS. BROWN: He only provided oral

8 testimony today. And that's all he would be

9 allowed to look at for his cross examination.

10 MR. BYRNE: What about his complaining

11 about he said he can't cross examine Mr. Aakash?

12 MR. OTTEN: Yes, I would like to. I

13 mean I could do that in writing. I don't mind

14 going that. I could write these questions up and

15 get a rebuttal, or a response.

16 MR. BYRNE: How about some written --

17 MS. BROWN: If he got us the questions

18 by Wednesday, Mr. Dettman could probably answer

19 them by Monday.

20 MR. OTTEN: That's not a problem. I

21 would be glad to do that.

22 MR. BYRNE: Okay, let's do that then.

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1 So Wednesday is what, Wednesday is the 20th?

2 MR. OTTEN: Okay, thanks for waiting

3 for me.

4 MS. BROWN: Yes, Wednesday is the

5 20th.

6 MR. BYRNE: Okay, so questions,

7 Dettman. Answers by the 25th.

8 MS. BROWN: And I'm sorry to make this

9 point. I just wanted to make sure that it's

10 clear for the record that Mr. Otten did cross

11 examine DMPED, the Deputy Mayor's --

12 MR. BYRNE: Yes.

13 MR. OTTEN: No, no, I'm sorry, let's

14 clarify this record. I cross examined Mr. Kenner

15 who could not answer my questions.

16 MR. BYRNE: Right.

17 MR. OTTEN: And what was made clear if

18 you read the transcript, is that DMPED was to

19 come back on July 14th. They did not. And so

20 therefore, I was prevented from cross examining

21 DMPED.

22 MR. BYRNE: So, on that note, thank

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1 you all for your patience and hard work on the

2 very difficult set --

3 MR. OTTEN: Thank you, Mr. Byrne.

4 PARTICIPANT: Thank you.

5 MS. BROWN: And I'm sorry. I forgot

6 to hand out the list of articles that Mr. Bell

7 listed.

8 MR. BYRNE: That's all right. Thank

9 you.

10 (Whereupon, the above-entitled matter

11 went off the record at 5:51 p.m.)

12

13

14

15

16

17

18

19

20

21

22

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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1546 **
 446
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1547 **
 447
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1548 **
 448
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1549 **
 449
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1550 **
 450
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central 35:19 36:19 429:9,13,17,19,22 choice 231:19 303:1 clauses 50:18
116:10 228:6 370:20 changed 19:4 20:7 399:16 clean 205:1 248:19
century 194:15 210:12 27:13 81:16 115:13 choices 307:7 cleaning 30:15 171:6,8
246:18 247:1 243:1 261:14 395:15 choose 302:8 303:2 cleanse 170:9
certain 153:18 161:14 changes 10:2 19:13,22 chose 317:9 cleansing 37:14 124:4
162:9 216:17 247:5 26:9 27:22 55:16 Chris 100:8 175:13 clear 54:10 80:21 81:7
407:18 439:16 65:12 68:21 116:18 207:20 295:1 359:16 85:14 108:7 110:16
certainly 20:20 21:3 118:12 171:1 274:9 christened 45:16 114:12 157:21 214:5
87:19 97:7 105:1 275:18,21 276:1,16 church 134:9 334:22 214:7 219:17 261:14
110:6 194:4 236:1 282:10,11 283:5 churning 110:22 282:2 284:5 317:16
277:17 284:7 289:7 320:4 397:10 428:7 Circle 293:5,6 322:10 323:20 442:10
294:20 341:7 342:7 changing 10:7 162:19 circuit 40:9 222:18 442:17
381:22 390:1 398:14 312:17 223:5 356:5 cleared 234:18 434:8
398:22 channels 164:11 circulate 369:10 clearly 46:15 65:13
certification 58:21,22 character 15:17 33:11 circulated 44:18 390:22 66:12 75:17,19 77:22
357:19 359:1 375:10 43:10 178:22 196:14 citation 279:12 80:3 106:5 193:18
375:13 376:15,17 202:11 214:15,19 citations 104:4 273:7 220:8 264:21 323:5
379:18 394:19,21,22 318:3 321:13,19 cited 67:15 219:9 380:19 392:8 413:15
395:1,13,22 396:21 331:6 333:6 335:17 275:19 280:6 302:22 414:14 417:21
397:11 398:5 399:8 339:6 348:3 349:15 333:1 cleave 230:7
400:21 401:12 407:21 characteristic 351:22 cites 34:7 Cleveland 230:8
408:7,9 409:10 characteristics 179:13 cities 71:9 261:10 269:2 client 96:15 134:3,8
414:18,22 417:1,8 250:10 277:18 321:15 citing 333:7 climate 156:9 162:18
418:13 419:10 427:7 characterization 42:5 citizen 222:6,9 162:19 191:14 247:13
certifications 396:18 96:14 citizens 37:18 39:16 379:2,10,12,13,14,20
413:11 characterizations 100:11 223:17 245:7 404:3 407:4,8 426:17
certified 261:10 375:12 95:22 268:20 428:12,17,20 429:1,4
375:21 396:6,9 characterize 35:3 53:20 city's 33:18 54:16 148:3 429:9,13,16,19,22
400:14 402:2 412:10 315:15 149:1 164:21 372:15 clock 181:18 272:13
414:22 418:6 419:19 characterizes 286:7 city-wide 100:10 346:11
429:11 characters 216:9 108:19 372:1 close 167:19 204:16
certify 396:10,11 Charles 71:17 citywide 289:18 290:18 278:9 280:15 288:4
Cerutti 182:21 charrettes 340:16 292:19 288:13 291:17,18,21
cetera 12:17 54:12 chart 106:4 391:2,4 Civic 213:15 435:21 437:15,18
75:17 76:15 287:18 charter 249:16 Civil 182:13 closed 172:14 183:6
403:8 chartered 50:20 claim 48:9 50:10 52:16 242:11
CFO 402:8 Chase 230:8 243:6 98:11,13 108:13,22 closer 274:21 291:19
chair 65:17 213:10,18 cheating 132:5 301:10 304:15 295:4 296:5,19
284:10 check 5:6 claimed 106:18 107:20 344:18
challenge 8:15 54:5 checked 403:8 151:8 251:12,13 closes 437:2
64:5 252:2 310:22 checklist 58:22 408:9 289:7 312:1 393:21 closest 64:15
320:16 414:15,19 claiming 142:21 176:2 closing 173:15 423:14
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1551 **
 451
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CMP 322:5 324:11 386:6 414:8 417:21 418:1 389:1 393:11,20
325:2,4,5 332:9 come 98:5 138:14 424:16 428:7 430:2 434:11,13
co- 106:5 139:13 162:3 164:4 433:15 comparisons 57:1
co-applicant 105:8 165:21 171:13 183:3 Commission's 58:19 compatibility 33:14
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co-ops 17:21 238:1,18 239:17 commitment 411:5 compatibly 349:11
Coalition 218:13,17 257:8 264:13 265:7 415:8 compensate 262:12
225:22 229:6 258:11 286:1 297:15 301:15 commitments 52:4 competent 81:11
coastal 380:21 301:16,18 306:12 168:5 411:6 competition 82:15
code 100:11 219:16 355:17 356:10 370:15 committed 413:4 414:7 184:22 199:20 200:15
coherent 68:20 229:14 373:15 442:19 committee 71:15,16 237:8 245:17 246:6,8
253:11 347:21 350:15 comes 103:22 139:17 213:10,11 268:15 competitive 12:1 13:20
354:6 170:22 230:17 375:9 common 48:22 190:16 24:17 25:3 45:8 81:11
cohesion 317:15 318:1 376:4 435:17 369:9 245:8,13
321:6 comforting 271:19 Communitas 42:22 competitively 80:2,5,13
cohesive 333:5 335:16 coming 52:8 100:22 communities 49:20 81:2,7,19,20
347:22 349:13 125:1,7,7 129:9,22 50:5,12 63:1 212:19 complain 132:1 152:8
cohesiveness 321:17 139:15 140:1 148:18 264:15 complained 184:20
348:18 169:18 172:9 174:2 community 7:4 12:20 complaining 53:13
coincidental 290:5,9 180:19 244:14 263:8 42:18 43:12 44:1,14 441:10
collaboration 50:12 294:17 319:9 380:22 48:18,19,20 49:2,10 complains 124:21
186:10 380:22 384:12 428:1 49:13,14,16 50:1 complement 347:22
collaborative 186:10 commence 97:16 51:11,15,19 52:1,10 complementing 350:5
420:4 commensurate 19:8 52:17,22 53:4,13 54:8 complete 53:13 55:9
collapse 197:19 198:3 comment 24:1 219:1 54:20,22 62:12 69:17 57:5 60:22 93:11
198:6,12 199:9,16 246:12 277:5 280:11 73:7 74:4 111:21 98:14 165:11 229:12
collapsed 198:3 217:5 287:7 351:13 392:4,5 112:7 122:10 129:17 234:8,20
collapsing 198:21 436:15 137:15 150:19 152:18 completed 9:2 155:20
collection 116:2,5 comments 28:20 72:22 153:6 183:1,10 186:7 215:4
collectively 219:15 73:20 84:3 99:22 186:15,22 188:18 completely 34:1 82:1
251:22 266:19 348:11 145:9 158:22,22 189:5 210:20 214:1,3 89:12 392:8 420:7
353:4 159:4 202:3 206:21 214:18 219:14 225:20 424:10
colloquially 432:6 240:10 250:17 256:18 226:1,12 227:1 completion 383:22
colloquy 87:16 92:18 256:20 298:15 320:2 249:17 251:21 252:8 397:7,7
colluded 53:15 commercial 6:6,20 9:4 252:14 253:2 260:15 complex 181:21 191:19
Colombia 19:5 15:18 59:14 137:7 261:1,2 266:18 192:1,16 195:10
Colonel 129:14,15,15 143:21 173:22 224:5 272:20 299:14 314:7 326:10 329:19
129:16 224:7,9 243:15 329:8 314:15 317:18 319:7 complexes 161:8 193:6
color 321:8 commercially 223:11 351:6,7 352:9,13,20 193:10 194:16
colored 198:16 commission 36:7 38:5 373:22 374:2 complexity 28:3
coloring 198:7 56:3 65:16 73:6 83:4 community's 43:18 compliance 60:9
colors 349:1 83:10 85:12 86:10,11 252:16 264:12 complicated 237:4
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9:15 10:10,15 11:14 109:11 144:14 181:8 company 42:21 66:4 329:5 400:17
12:14,19 14:21 18:16 208:20 219:6 222:19 115:12 complicity 190:19
19:17 24:10,15 26:2 229:9 240:13 277:15 comparable 12:8 complied 93:2,17 359:6
36:4 38:4 71:22 74:3 279:22 283:2,9 comparative 12:6 48:12 complimentary 336:10
76:1 79:2 100:16 284:10,11 285:15 compare 254:16 330:4 336:16 357:7
113:2 118:9 154:19 292:9 293:1 347:4,5 379:3 389:14 complimented 347:10
222:9,16 223:9,14,19 352:20 357:16,18 compared 46:17 47:12 comply 60:17
224:11 243:5 249:12 365:13,21 368:3,14 327:5,13 component 84:7
314:6 327:10,16 369:22 370:10 371:3 compares 292:19 315:16 323:22 388:7
380:17 425:21 376:8,12,21 387:19 comparing 70:14,15 389:10 392:12,14

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1552 **
 452
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254:7 256:20 267:18 245:1 328:22 384:15 conservation 315:12 57:3,10 61:5 88:11
381:6 384:21 385:9 385:5 conservative 299:1 91:2 93:9 98:13
440:18,21 concur 331:21 conservator 225:17 104:20 113:15 115:20
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196:15 342:15 344:8 375:16 137:2 153:4 176:4 194:16 227:7 252:5
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251:1 400:12 428:8 209:20 219:10 271:5 334:11,15 335:13,21
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computer 5:7 204:18 conditioning 91:7 considerable 53:5 56:6 376:19 397:6 398:2,4
concede 185:10 conditions 57:22 87:19 59:19 398:13 399:10 400:1
conceivably 61:3 88:3,17 89:6 92:12,22 considerably 10:9 400:2,20
415:17 93:16 94:6 95:2,7 282:14 constructive 319:12
conceived 282:16 98:7,9 112:11 165:22 consideration 17:9 consultant 7:15 113:16
333:14 198:9 319:20 377:2 47:2 48:1,22 55:3 consultation 327:22
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concentrating 32:5 condo 172:11 253:20 270:22 316:16 consume 122:13
concept 118:5 215:4,12 condominium 17:3 considered 32:17 46:9 consumption 402:22
228:1 270:6 273:1 condos 16:11 17:21 51:19 61:3 65:12 68:8 contains 44:12 360:3
317:14 318:9,15 63:9,11 68:15,16 69:13 70:5 contemporary 349:6
321:16 333:3 335:15 conducted 268:5 270:9 72:11 80:16 109:13 contend 166:11
349:12 353:1 conducting 316:11 109:14 110:7 137:15 contentions 176:1
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conceptually 23:16 conference 187:2 227:10 245:2 253:7 240:13 433:6
concern 10:15 17:8 434:19 261:13 318:16 323:16 Contesting 2:7
63:20 77:18 105:12 configuration 21:22 considering 95:2 151:7 context 10:20 24:9
143:8 195:8 confirm 234:19 190:21 307:4 316:14 77:11 83:21 122:6,8
concerned 131:19 confirmed 101:21 319:11 124:9 153:5 159:5
178:12 180:21 257:2 279:11 considers 44:3 131:9 176:7,17 192:17
260:20 261:17 262:6 conflict 106:8 107:9 184:13 193:2 233:21 371:1
345:3,5 371:22 conflicts 220:11 consist 37:3 429:3
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50:8 59:8 60:4 70:18 231:12 35:17 43:11 44:15 195:18,22 361:5,5,15
250:1 confronted 63:4 92:14 162:5 210:1 continuation 4:7
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58:4 60:7 65:14 88:9 96:18 164:8 402:12 324:16 continue 110:16 128:19
122:16 128:10 367:17 403:4 consistently 32:22 128:20 301:18 329:11
369:11 confuses 54:18 42:19 77:15 377:21 384:18 398:12
concert 373:21 confusing 88:18 consisting 71:16 420:14
concerts 230:20 352:15 congested 62:21 consists 211:19 415:6 continued 26:21 292:3
conclude 174:20 congestion 138:14 419:16 376:8
196:17 200:9 263:17 258:7 307:10 consolidated 347:6 continues 177:9 228:17
267:16 279:7 428:11 Congress 71:15,19,22 constantly 72:8 145:16 continuing 25:11 26:11
428:16,19 connect 28:16 145:16 222:11 376:13
concluded 393:1 connected 99:12 constitute 54:13 250:4 continuous 104:21
concludes 98:19,21 Connecticut 139:16 250:12 123:19 124:21 125:20
332:5 394:15 397:6 connecting 72:6 constitutes 322:9 145:14 149:1 166:22
concluding 70:17 213:1 connection 212:8 construct 106:20 187:4 194:20
conclusion 224:18 consciously 324:3 381:10 continuously 128:21

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1553 **
 453
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382:15 177:12 178:7 223:5 235:15 273:18 353:20 364:3 365:9
contributes 382:2,11 corridors 140:7 320:9,13 345:3 416:19 420:11 421:22
contributing 260:16 cosmetic 215:17 367:18 368:8 369:3 422:13,14 423:12
339:12 cost 12:11 15:5 108:8 417:22 438:12 435:9 440:12,15
contribution 143:4,5 155:13,17,19 156:1 court's 55:13 63:20 441:3,5,9,11 442:10
330:8 353:12 172:9 190:12 301:7 220:9 442:14,20
control 47:7 139:13,22 303:14,14 courteous 310:12 Crossing 67:22
190:5 251:15,18 Costco 130:19 courtesy 267:22 Crow 270:13
253:8 costs 9:16 11:8 12:16 courts 31:18 320:3 Crow's 192:1
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342:19 345:16 19:16 56:8,11 108:13 covenants 197:2 200:3 crown 192:2
controversy 222:22 151:8,12,14,15,17,20 200:7 221:2,3,13 crucial 51:12
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converging 139:10 282:7 298:18,20 cover 201:17 263:5,9 culture 258:13 266:8,15
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convey 321:14 303:7 377:10 427:4 259:12 262:10 384:16 146:17
conveying 36:15 427:16 CR 389:9 390:13 434:3 current 10:14 16:16
convinced 134:3 Cottage 158:12 178:11 create 17:11 42:22 17:7 44:20 56:13 63:2
convoluted 95:16 182:8,11,13 251:10 297:20 324:3 363:21 160:9,18 188:4 244:7
cookie-cutter 316:6 coughing 124:4 365:5 394:3 253:10 386:11
319:1 Council 28:6 66:18 created 10:2 15:9 61:7 currently 47:6 62:3
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cooperation 328:1 233:2 234:18 236:1,2 creates 59:18 387:9 412:16 434:12
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335:16 272:20 328:2 377:8 364:9 cuts 178:4
coordinating 319:13 395:14 396:1,11,15 creation 228:13 249:19 cutting 198:17 199:15
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241:4,7,11 402:19 409:14 420:2 creative 43:9 44:19 CV 6:3,7 29:6
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173:5,9,11,13 204:5,6 counsel 4:18 54:1 credible 278:12 279:7 cycles 27:2
208:6 232:19 273:1 57:14 81:5 credit 149:16 281:11
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199:7 251:4 374:13 country 26:3 71:12 228:6 230:5,6 29:20 45:4,11 46:5,11
383:4 391:11 161:13 297:14 crime 166:5 54:2 55:21 68:4 80:4
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42:9 85:6 91:13,17,20 143:19 162:8 240:4,5 111:7 300:19 322:2 328:8 330:20
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283:11,19 284:12 91:22 101:10 112:1 381:7,8 440:17 daily 61:17 122:13
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1554 **
 454
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126:12,14,14 130:20 401:19 407:22 415:15 delay 27:16 dense 36:16 159:10
152:13 171:22 174:1 420:16 426:13,15 deliberately 54:22 denser 17:10 76:19
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254:1 deals 73:16 83:22 84:6 deliver 210:19 248:19 density 16:18 17:6 21:8
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Daniel 3:11 71:16 Deanwood 243:10,13 delivery 123:10 171:14 176:14,15,16
225:15 death 36:11 demand 10:3 18:17 176:16 177:3 179:10
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289:15 290:22 291:4 decade 15:15 18:9 279:4,9 286:8,9,13 188:6 190:8,11 196:2
292:22 293:2 393:11 decades 63:19 113:3 287:4 288:12,13 215:21 340:3,6,9,11
393:11 183:6 210:14 296:16 297:3,4,6,9,16 351:1 370:5,7,9,12,17
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437:4,8 439:16 December 53:14 57:11 301:2 302:6,11 303:9 deny 33:8 221:5,6
dated 65:20 73:22 59:18 74:1 306:6,7 393:1,7,8 247:4
108:3 376:11 decent 341:12 demarcating 186:6 Department 8:1 55:21
dates 438:7 decide 24:6,12 105:21 demo 89:1 132:2 61:15 113:10 118:4
David 318:8 322:4 322:8 Democrat 256:2 depending 293:6
323:13 decided 24:14 254:3 demoed 132:3 depends 58:6 304:7
day 61:10 71:20 123:19 284:3 332:17 demographic 112:6 306:18
123:19 163:4 231:4,6 decides 369:16 275:21 277:17 depravation 258:15
244:14,16 248:22 decision 33:21 42:13 demographics 306:1,4 depth 27:15
255:18 310:2 407:16 48:15 54:3 55:6 90:12 demolish 227:9,11 depths 322:10
407:17 416:5 422:7 180:1 181:10 209:19 231:19 325:20 326:18 Deputy 1:8 25:8,10
422:16 436:19 439:8 219:3 271:12 273:18 demolished 46:3 47:5 226:20 270:16 442:11
days 60:12 90:13 163:4 317:10 324:20,22 324:15 329:14 416:2 Derek 277:1
163:5,5 234:11 272:9 333:2 335:1,7 337:3 demolishing 214:17 derive 374:3
422:8 437:2,4,7,17 339:15 354:18,19 326:2 derived 348:7 424:13
438:20 439:8,14 356:1 363:4 demolition 14:2 21:12 deriving 407:20
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100:20 101:1 104:2 219:5 317:9 323:1 32:15,21 33:18,21 describe 6:21 121:21
110:16 112:21 118:13 355:17 372:20 39:6 47:19 48:13 57:5 292:17 296:12 359:4
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156:9 162:20 172:9 302:11 59:18 60:12,19 61:4 described 12:12 178:20
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186:21 190:21 191:11 dedicated 71:1,12 87:13,21 88:10 89:22 343:10 392:12
198:15,19 213:13 deed 221:4,13 223:8 90:2,11,13 91:1,3,11 describes 425:18
219:3,16 222:17 224:1,20 231:12,17 92:13,22 93:6,7 95:3 describing 23:15
224:22 225:2,19 233:11,12 96:22 98:8,12 132:8 description 15:12
226:14 227:4 230:19 deemed 59:11 186:12 144:21 187:5 196:14 50:19
234:17 235:22 236:2 223:5 199:4 200:2 220:1 desecrate 68:4
242:1,10,19 245:5,7,9 deep 27:3 217:7 221:7 224:13 229:11 deserts 258:16
251:18 255:9 257:3 deeper 390:20 231:11 250:2,5 deserve 19:21 48:21
257:13 258:15 261:9 defer 333:8,11 253:18 254:2,9 270:5 230:12,12
265:12,18 266:7,9 deficit 37:22 325:10,11 326:1,16 design 31:21 34:10
273:17 274:8 276:5 define 295:7 324:8 328:13 329:5,18 69:18 82:15 115:8
376:11 377:4,14 351:5 339:6,10 340:3 116:14 118:5 143:10
380:7 382:18 383:19 defining 179:12 181:1 341:19 373:7 418:5 167:2,4 184:3 228:1,4
384:8 425:19 426:20 196:14 331:7 demolition's 339:11 245:3 254:16 269:10
429:4 430:21 definitely 86:5 300:21 demonstrate 227:10 316:11,18 317:18
DC's 14:14 257:9 423:18 demonstrated 55:8 318:9,12,15 319:4
DCRA 89:10 150:10,11 definition 295:10 322:4 demonstrates 60:22 320:5 321:2,4,5,7,12
150:14 163:6 322:13,18 323:11 93:10 98:14 185:5 323:19 333:3 336:16
DDOE 136:14 346:21,22 315:8 337:15 340:7,8 341:9
deaf 45:3 degree 118:19 149:3,5 demonstrating 15:2 344:16,17 348:2
deal 8:5 10:21 11:4 152:22 189:6 195:6 demonstration 220:21 349:18 350:2,6 352:9
15:12 19:4 20:1 24:9 195:13,16 denied 105:6 352:15,18 353:1

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1555 **
 455
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370:3,17 378:10 determine 14:16 15:12 17:17 20:18 23:21 diminution 339:5
398:7 399:4,8 406:2,7 89:15 103:4 156:22 28:2 30:2,18 54:15 dioxide 127:22
406:15 407:6 164:10 190:6 227:5 78:11,14 81:16 direct 49:19 111:22
design's 38:20 337:6 370:15 398:2 110:21 147:14 148:6 273:15 278:2 300:4
designated 8:14 116:3 determined 87:9,14 151:19 155:8 188:8 320:3 355:17 356:10
213:12 179:11 224:14 332:16 212:18 214:9 217:18 394:3
designation 11:11 355:13 275:13 301:4 directed 29:15 109:17
designed 199:14 267:8 determining 14:1 developing 72:6 129:4 403:4
328:19 329:1 330:1 Dettman 3:6 206:11 170:2 214:14 216:6 direction 33:1 177:5
347:11 351:19 369:19 353:13 358:3,6,22 381:6 236:14 259:8 308:21
375:11,17 426:20 359:3,9,14 366:16 developments 49:1 354:10
designing 319:15 374:22 375:3,7 380:2 67:18 68:12 125:11 directions 47:10 162:6
339:22 347:17 398:14 380:12 384:20 387:16 131:5 133:6 138:8 directives 33:1 34:4
398:15,16 402:5 387:21 388:10,13 141:15 149:17 150:21 directly 42:10 62:7
426:20 427:18 390:8,10 391:4,14 152:12 163:12 248:15 64:18 99:11 124:11
designs 185:14 253:19 392:1,3 393:5 394:16 252:5 265:14 277:22 130:5,7 134:11
317:14,14,21 318:2 395:16 396:13,17 278:4 295:5,7,15 192:17 260:1,12
320:1 321:16 335:15 397:2,12 398:6 399:6 296:3 284:6 287:7,14 297:2
344:20 349:12 354:4 399:11,15,20 400:4 device 207:12 259:7 368:8
356:18 376:13 400:19 401:4,7,21 devise 298:19 director 148:11 241:22
desirability 71:20 76:14 402:18,21 403:10 devote 388:16 dirty 259:22
desirable 14:18 31:10 404:2,16,20 405:11 devoted 389:19 390:15 disadvantages 421:5
179:1 405:14,18 406:1,9,11 390:16 392:8 434:5 disagree 23:9 260:17
desire 313:15 406:13,18,22 407:5 dialogue 44:14 52:22 393:5
desires 50:5 407:11 408:12,19 86:6 249:20 305:11 disagreeing 286:7
desk 401:22 409:2,12 410:2,10,14 351:12 352:18 disagreement 286:19
deskbook 402:15 410:17 411:7,16 die 63:18 127:11 disappearing 251:3
despite 39:15 188:11 419:20 422:1 424:11 died 227:17 229:3 disappointed 256:1
195:1 227:4 288:2 425:1 426:2,5,11,19 Diener 3:12 241:18,20 disaster 258:4
341:21 427:11,17 428:2,6,13 241:21 disastrous 63:17
destabilization 111:20 428:18 429:6,21 difference 21:2 409:9 discharge 221:16
188:17 276:6 302:3 430:10,15,21 431:8 423:22 disclosure 13:21
308:20 433:12 434:1 435:6 different 21:22 23:7,8 discourteous 96:14
destination 349:7 440:11,16,17 441:18 49:15 68:16 114:10 discredit 43:1
destroy 35:1 38:12 442:7 235:19 236:2,14 discriminatory 194:3
54:16 128:6,6,19 Dettman's 423:8,10 245:1 256:13 277:8 discuss 287:2 295:4
142:12 177:3 181:5 develop 133:14 142:10 290:14 295:17 325:5 317:13 323:12 325:15
195:16 253:11 258:1 148:6 167:8 202:7 325:8 338:4 340:1,16 326:9
destroyed 30:18,21 214:13 215:13 216:4 340:17 348:5,16 discussed 186:7
216:19 250:11 230:7 349:3 351:3 352:4,4 268:15 298:21 340:16
destroying 142:16 developed 36:15 39:1 360:22 361:8,9 390:18 392:7
195:11 259:18 49:17 115:8 116:1,8 377:15,16 378:21 discussing 85:9 325:22
destruction 20:18 117:14,17,20 118:5 380:5 403:12 discussion 186:11
29:22 32:14 35:15 124:12 125:5 131:2 differential 18:11 275:20 333:12 341:10
62:15 251:7 254:11 141:10 143:7 150:1 differently 242:5 342:1 379:11 420:13
271:6 340:3 152:20 160:2 163:9 244:20 discussions 25:14
destructive 231:21 170:5 172:11 214:20 differs 51:8 191:5 341:3,21
detail 6:9 9:14,18 46:17 223:11 242:13 258:5 difficult 80:1 161:20 373:22
51:2 81:6 347:7 258:10 289:9 295:14 271:17 303:17 327:11 disease 130:12,13
377:14 411:4 413:13 304:22 338:17 351:11 443:2 disingenuously 48:10
detailed 12:2 185:17 367:7 402:14 difficulty 79:17 dismissed 90:19 92:8
221:9 257:9 developer 16:20 19:4 dig 130:1 dismissively 88:12
details 52:4 67:8 68:16 131:21 214:20 digging 129:20 150:18 dispense 356:8
deteriorated 293:7 245:22 246:5 252:12 150:22 157:1,12 displace 212:19
329:14,16 257:5 314:22 367:9 digit 16:10 displaced 112:4 133:7
determination 14:14 developer's 18:19 dignity 72:14 209:3 190:9 210:1
339:11 409:13 developers 8:14 9:4,7 dimensions 176:21 displacement 63:20

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1556 **
 456
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283:13,21 284:13 275:13 379:14 401:8 239:9 Edgewood 211:5,12
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distinction 350:4 door 63:10 131:22 effect 173:20 211:16
distinctiveness 321:18 172:12 299:22 E 212:9 286:17 289:3
348:18 door-to-door 43:22 eager 418:2 389:16
distinctly 178:22 349:3 doors 35:5 259:15 earlier 13:12 16:14 effectively 221:16
Distinguished 113:11 dormitory 133:17 42:12 83:5 143:6 286:22
distributed 29:11 32:7 DOT 115:17,21 156:15 159:10 206:17 effects 62:18 157:15
258:17 dots 121:2 216:1 253:8 293:5 209:21 277:11
distribution 200:13 double 5:6 16:10 307:9 347:14 350:8,9 efficiencies 397:21
392:22 199:11,17 318:14 354:3 356:1,16 382:8 efficiency 84:17,20
District's 20:9 329:2,7 doubt 59:19 259:20 384:13 393:16 422:7 397:20 404:4
District-wide 108:17 422:2 early 68:10 168:5 267:4 effort 48:4 54:7 207:3
districts 176:14 downtown 116:9,10 317:21 398:7 215:20 220:2 229:1
disturbing 159:13 122:20 152:18 177:22 earning 210:5 388:18 efforts 51:20 58:13 97:8
diverge 104:11 182:4 184:7 259:21 390:17 434:5 218:21 271:12 395:19
divided 229:15 266:7 288:14 291:18 ears 45:3 egregious 220:21
division 253:11 291:19 298:8 Earth 259:13 Eig 3:5 30:1 194:9,14
divvied 204:2 downturn 18:12 20:3 earthquake 162:21 195:8 197:8 206:9
DMP 220:6 242:4 26:20 easier 40:12 257:22 228:10 229:2,14
243:19 Doxiadis 119:6,7 easily 245:18 231:16 262:18 314:3
DMPED 42:18 45:6 56:7 Dr 269:16 283:7,12 east 130:6 138:12 140:2 314:9,12,17,19 315:6
65:18 68:1 105:9,14 293:22 143:14 159:7 193:21 316:8 322:7 324:19
106:5 183:11 220:6 draft 53:2 317:2 423:14 267:5 329:8 393:22 325:4,13 327:8
254:3 270:15 299:10 423:20 424:1 437:11 east/west 125:21 135:5 331:20 332:12,16
440:15 442:11,18,21 drafted 88:4 eastern 216:22 333:10 334:10,16,19
document 51:2 65:15 drainage 134:4 Eastman 376:11 377:4 335:6,10 336:2,17,21
82:5 169:15 173:3 dramatic 18:10 290:17 377:13 405:1 419:7 337:2,5,11,16,18,20
201:13 232:22 234:9 dramatically 27:13 easy 20:22 209:4 338:1,3,16 339:8,17
234:16 235:19 236:3 348:13 373:2 347:13 340:10,14 341:13,15
241:16,18 359:9 drastic 247:13 Echo 230:9,10,18 341:18 342:4,21
377:9 378:1 389:15 draw 380:14 388:22 257:18 343:5 344:19 345:12
391:13 402:16 405:1 drawing 46:12 150:8 Eckington 264:16 345:20 346:2,4,6
411:19 419:7,11,22 157:3 341:18 356:2 economic 1:9 18:12 359:22
420:11 drawings 46:20 185:5 20:3 24:6 26:20 27:2 Eig's 214:22 216:12
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222:17 398:4 118:4 147:19 154:18 384:1 389:10,22
documents 10:22 11:2 dressed 215:9 257:8 266:11 267:3 390:13
50:10 54:21 81:6 drew 369:2 270:17 291:14 294:12 Eighty 433:9
82:12 88:21 95:11,20 drill 157:18 296:16,17,20 either 21:17 30:9 55:15
97:18 156:9 175:1 drive 156:1 203:1 economically 14:2 59:21 60:16 72:12
178:14 196:9,10 272:22 273:4 363:13 69:11 226:9 253:15 110:17 125:1 252:5
203:10,14 225:7,10 driven 65:13 220:11 257:12 282:12 295:12 303:6 308:21
376:18 377:5 394:19 288:11 397:16 economics 10:7 25:12 320:12,19 372:12
411:4 422:10 drives 72:7 26:15 128:9,10 397:6 418:16 431:16
DOE 426:4,5 driving 107:7 111:11 economists 287:6 elaborated 284:4
DOEE 431:10 dropped 168:6 economy 26:8 279:10 elderly 181:12

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1557 **
 457
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171:15 267:19 297:6 331:6 ESQ 2:3,8 exacerbate 379:14
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378:2 415:13 enjoy 180:9 192:6 essential 57:20 exactly 43:2 74:14
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eliminate 180:7 210:21 enjoyment 37:18 389:7 417:6,20 exam 298:22 364:3
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Elizabeth 3:14 249:9 enormously 39:7 established 68:15 73:2 98:20 202:6,19
Elizabeths 327:6 ensnared 62:2 278:17 367:2 239:21 282:3 307:9
328:18 329:5,13,22 ensure 58:1,11 60:19 estate 6:1,6,14,16 7:16 346:11 365:9 416:19
331:12 92:22 93:16 112:10 10:3,7 63:2 64:5 420:11 422:1,13,14
email 65:17,20 73:22 ensured 14:21 110:15 111:4 149:22 435:9 441:9
74:19 75:17 77:1 78:9 entered 343:19 150:1 274:6 276:5 examine 105:8,10,13
88:6 91:15 entertaining 101:7 277:14 105:17 129:1 168:14
emails 88:6 257:13 estimate 297:22 299:1 193:11 201:5 440:15
Emerald 265:1 entire 77:21 109:7 325:11 346:15 438:10 441:4,6,11 442:11
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161:19 162:6 174:8 229:13 230:5 324:1 estimates 325:9 240:11,15 305:16
188:18 325:17,19 340:19 et 12:17 54:11 75:16 442:14
Emily 3:5 30:1 214:22 341:5 395:17 76:15 287:17 403:8 examining 307:19
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231:16 49:21 178:8 251:3 evaluate 273:19 example 58:9 63:9,13
Emily's 347:15 entirety 203:20 evaluated 375:21 396:5 99:19 133:13 149:11
emissions 427:22 entitled 391:5 429:16 201:10 247:17 252:19
428:4,15 entitlement 26:13 evaluating 165:19 265:15 287:14,18
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147:1 163:22 entrances 45:20 136:20 191:3 315:7 examples 51:7 64:19
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energy 255:14 319:21 environmentally eventual 87:20 exceptions 118:13
398:19 243:19 244:12 431:18 eventually 9:10 excerpt 233:9,17
enforce 376:5 415:21 envisioned 178:19 everybody 88:1 101:20 293:13 377:9 378:19
enforceability 58:5 196:8 104:13 148:17 269:18 402:21
enforceable 59:4 epidemics 71:5 369:5,21 435:20 excerpts 233:4
400:12 equal 297:18 301:13 everybody's 207:7 excess 276:8
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376:22 401:1 equated 304:18 everything's 207:6 53:8,14 212:15 271:1
enforcement's 401:22 equitable 200:13 427:8 evidence 60:16 85:1 exclude 78:16
engage 96:12 equity 161:4,4 193:6,16 182:20 190:18 233:7 excluded 54:22 82:3

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1558 **
 458
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200:11,12 243:9 6:20,22 7:17 8:8 330:18 338:12 347:3 381:20
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324:5 332:15 346:20 274:8 276:4 277:13 extent 58:6 77:7 156:21 factual 84:8 85:6 202:5
346:21 347:2,13 283:14,22 284:6 156:22 207:8 289:10 202:13
350:2,14 352:8 353:2 335:12 349:8 363:8 411:5 fail 62:5 129:15 245:15
354:9,10,16,20 355:4 437:17 extra 140:21 203:21 245:15 415:13
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356:11,14 357:3,12 138:13 162:4 163:2 extraordinary 268:7,22 61:16 80:8 199:3
362:21 364:19 368:12 164:9 263:2 274:22 extreme 188:3 219:18 220:8
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330:4 363:20 289:22 191:2 219:9
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exhibit 56:4 65:16 77:6,12 102:19 103:4 F 116:17 fair 22:5 99:2 131:13
73:15,22 137:19 112:16,18 113:4,15 fabrications 43:20 135:18 137:11 144:20
234:2 235:22 250:19 114:14,15,15,17 fabulous 228:5 270:2 146:14,20 151:6
257:15 384:21 387:3 140:17 154:22 184:17 face 418:12 158:15 160:12 161:6
exhibition 331:1 197:21 199:9 274:7 facilitator 236:12 161:17 212:15 234:8
exhibits 52:6 175:21 283:12,20 284:12 facilities 55:20 67:3 255:15 297:2 298:2
200:16 203:21 204:2 293:19 294:1,4,21 130:11 188:18 191:19 298:11 304:3 342:22
222:13 307:9 312:13 327:2 193:20 248:21 253:4 427:22 428:3 437:10
exist 159:7 177:10 340:10 345:13 391:21 262:2 299:14 392:21 fairly 176:14
existed 194:18 426:16 393:21 408:13 393:12 394:6,9,12 fall 17:6 404:10 422:16
existence 433:19 expertise 6:13 77:10 facility 37:14 58:16 fallen 45:3
existing 15:5 42:17 114:5 115:6 118:17 59:16 66:21 67:11 fallout 259:11,11,14
44:3 45:19 46:18 277:13 294:2,3,18 84:6 195:3 242:22 falls 379:6 403:20 405:5
51:14,18,22 61:8 67:6 experts 77:9 194:8 243:2 385:15 392:20 false 53:19 80:22 326:8
72:6 110:11 135:1 347:9 393:2,13 393:20
169:21 187:4 188:14 experts' 365:2 facing 64:18 374:11 familiar 380:11 411:3,7
188:17,21 210:11 explain 40:12,18 115:5 fact 31:3,15 45:12 48:3 families 63:3 152:14
212:16 251:8 262:5 188:3 333:17 375:4 56:7 57:16 63:19 67:3 190:22 210:15 230:14
302:9 349:22 359:18 377:12 388:12 392:2 67:16 70:4 91:8 92:20 280:6 391:20 393:22
393:21 394:12 426:21 explained 30:9 101:17 93:14 94:18 97:2 family 36:10 64:16 65:8
428:8 433:14 201:19 229:19 323:10 119:2 123:10 131:15 172:13 181:18 211:20
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165:5 210:6 244:5,8 explains 81:5 257:10 143:17 145:2 149:2 far 5:3 45:1 56:9 110:11
expand 394:5 explanation 80:7 150:4 153:2 155:7 121:15 134:9 160:20
expansion 67:5 130:8 explicitly 336:4 170:7 182:18 193:4 165:19 199:4 262:2
130:10 exploit 39:1 196:11 199:5 214:7 322:13 330:7 392:14
expect 41:16 93:19,20 exploiting 38:21 216:11 244:21 246:22 393:13 412:4 413:6
102:9 108:10 417:7 explore 34:10 279:21 282:1,3 418:7 429:14,16
expected 9:4 15:12 exploring 254:10 287:10 290:2 292:6 fare 116:2,5
19:12 137:13 220:13 exponentially 154:18 292:15 324:21 326:2 farther 275:1 278:10
299:6 375:8 express 369:11 331:4 340:21 351:1 fascinating 270:9
expecting 5:9 137:21 expressed 100:13 352:12 354:3 357:4,9 fast 20:22 64:2 301:20
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1559 **
 459
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1560 **
 460
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1561 **
 461
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1562 **
 462
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1563 **
 463
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88:1,13,15 91:5 income 280:5,20 281:2 331:5 350:3 397:14 intact 68:9 326:5
100:18 104:2 122:12 281:5,12,15 293:7 402:4 intangible 428:9
126:21 127:19 132:18 390:12 391:19 individually 219:14 integrate 8:20
136:9,10 140:11 incomes 280:19 281:1 251:22 347:16 348:11 integrating 319:12
150:17 153:19 169:16 incompatibility 335:3 353:3 integration 48:13
170:16 178:14 179:14 335:22 336:1 individuals 226:12 integrity 195:6,13,17
179:15,20,22 183:17 incompatible 33:10 indulgence 309:17 intend 359:1 416:20,21
189:22 195:15 246:22 316:3 334:16,17 industrial 228:17 269:4 intended 51:3 81:15
260:2 282:13 316:22 336:4,15 356:19 269:10 328:21 223:22 240:20

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1564 **
 464
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224:3 380:14 381:17 irrelevant 73:9,14,16 iterations 356:1,17 146:5 153:14 174:2
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383:19,21 384:6 96:6 97:19 420:8 274:16 346:11 405:14
426:9 irreparable 416:2 J 405:14,15 431:15
Interior's 256:22 Irving 124:13 126:17 Jacket 383:16 425:16 keeping 76:14 277:3
interject 420:6 138:16 139:5,11,14 Jackets 380:7 425:19 Kelly 271:3
Interjection 31:2 139:15 140:1 141:13 Jackson 200:19 204:20 Kennedy 255:19
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191:11 343:11 island 116:16 123:12 Jacobs 360:21 361:16 Kenyan 145:9
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245:17 165:1 267:1,2,6,10 268:15 key 17:14,20 29:22 30:5
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internet 82:5 isolation 146:6 323:13 68:18 106:14 135:10
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330:15,21 355:10 issue 22:22 24:12,14 Jane 3:18 268:2 350:20 189:22 199:22 274:18
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139:10 270:4 297:4 300:22 404:22 King 59:10
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1565 **
 465
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283:21 318:1 319:3 355:13 139:9 168:1 208:13 439:1 441:22 442:13
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111:12,20 112:14 largely 107:10 149:9 353:18 357:15,19 letters 178:12
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186:5,6,12 187:11 late 102:9 310:2,4 413:9 LEED- 378:21 429:10 134:16 188:14 280:5
188:13,17 189:2 413:21 418:7 435:21 LEED-Gold 396:6 390:20
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219:13 223:10 227:17 laugh 192:19 377:22 379:3,7,16 library 241:22 242:2,8
231:14 242:11 251:21 Laughter 139:2 387:13 394:20 396:5 242:10 243:3,6,7,9,10
253:5 266:18 268:9 launches 259:7 396:12 397:22 398:5 243:13
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304:16,19,21 305:8,9 54:14,18 71:17 90:5 413:3,16 414:6 415:6 lieu 371:16
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316:3 93:5,14 110:1 147:13 419:2,3,16 172:7,8 248:11
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33:7,12 70:20 213:6 433:4 436:2 437:20 left 21:6 31:4 64:14 Likewise 32:4 69:11
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318:21 319:17 321:21 lawfulness 54:5 205:12 440:9 limit 206:17 330:5
323:22 325:12,16,19 laws 109:20 245:13 legacy 71:11 412:4
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1566 **
 466
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1567 **
 467
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1568 **
 468
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1569 **
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1570 **
 470
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Off-microphone 28:20 one-way 116:19 205:8 213:14,18 outline 338:18

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1571 **
 471
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1572 **
 472
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33:21 54:14 57:3,5,10 321:6 340:1 344:13 253:10 254:4 267:13 416:1,6,14 418:4
57:10,17 59:18 60:12 349:9,21 397:5,18 273:2 274:10 275:2,8 421:6 442:9
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88:10,11 89:1,14 90:3 placemaking 343:9 390:4 245:5 347:15 350:9
90:11,13,14 91:1,3,4 361:12 362:8,21 plant 129:5 331:2 pointing 82:14 358:12
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227:8 397:3,4 344:9 386:8 256:6 269:8 281:19
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328:16 303:16 340:17 361:9 358:19 372:2,16 375:5 378:4,5,6,13,13
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1573 **
 473
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39:19 prepare 408:22 423:21 preservationist 345:2 print 405:17
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1574 **
 474
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189:7,8 223:11,20 227:6 prove 189:4 329:2

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1575 **
 475
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1576 **
 476
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1577 **
 477
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386:16 388:16 389:3 367:19 368:11,19 retaining 46:21 195:13 Richards 5:20 281:3

Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1578 **
 478
Richards' 5:17 314:5 Rosen 3:9 209:17,17 159:15 182:14 197:3 133:3 220:17 222:20
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1579 **
 479
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1580 **
 480
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1581 **
 481
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1582 **
 482
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1583 **
 483
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1584 **
 484
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1585 **
 485
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1587 **
 487
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1588 **
 488

2 2017 1:13 16:6 185:4 108:18 109:17 110:3 390:21 433:20

2 44:21 48:18 57:11 278:6 380:7,12 213:22 217:15,22 50,000 280:20
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20-707 66:18 22 17:22 347 3:6 6.2 12:19 36:1,14
200 296:6 220 1:17 35 6:5 118:9 148:7 6:30 424:17
2000 157:5 267:7 222 3:10 218:20 60 210:5 388:19 390:21
292:18 2228 59:9 375 3:6 433:4,16
20001 1:18 225 3:11 3A 49:18 82:18 600 296:13 303:5
20006 2:5 232 3:11 3B 52:5 82:22 600-plus 111:18
2001 34:18 247:12 24,000 231:6 3C 56:4 83:2,3 600,000 16:8
2002 44:10 49:6 159:15 24.9 325:18 342:21 3D 53:7 63 66:16,18
159:17,17 160:6,15 241 3:12 654,000 386:20
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2003 293:2 25 104:21 109:13 69:15,15 177:8,20 680 267:1
20037 2:10 172:15 295:21 342:17 181:11 353:16 359:5 69 31:1
2006 160:6 187:9,10,17 342:20 343:2 363:16 359:8 393:18 395:21 690 385:20
188:7 196:10 384:15 4:00 123:16 6A 63:8
2007 16:5 18:13 24:22 25,000 137:12,21 40 120:12 225:17
2008 185:7 187:16 140:17 365:3 259:10 272:14 378:20 7
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290:5,19,21 292:16 25th 435:17 439:3 40,000 117:15 193:14 194:1 256:20
292:19 293:10 442:7 41 3:4 7.6 278:7
2009 65:20 260 3:16 42 353:9 70 125:2 157:10 379:6
2010 38:6 124:12 194:9 264 3:17 42,000 133:14 405:4
194:12 317:1,4 268 3:18 42.4 280:18 700 129:2,2 143:4,7
2010-2011 26:22 27 67:21 325:19 44 18:2 700,000 172:12
2011 18:13 26:22 27.5 280:22 441 1:17 73 326:4
173:18,19 270 211:19 45 180:13 272:14 75 11:17 177:20
2012 44:17 169:10,16 272 37:16 4th 1:17 265:9 75,000 281:1
186:3 211:5 212:1 274 3:5 750 385:20
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2013 53:8,14 74:1 28th 194:12 120:8,8,16,19,22 7th 249:9
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373:1 426:15 2nd 435:19 437:1,7 142:1 161:6 174:21 8 64:6 66:19 193:14
2014 28:6 30:3 137:19 438:16 439:4,5,18 193:9,19 208:1 211:4 194:1
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2015 79:7 101:2,3 126:7 314:15 50 119:4 159:19 160:21 8000 44:22
156:10 191:15 202:17 3,000 298:1 186:15 187:19 210:5 80s 267:2,4
2016 56:11 57:11 59:18 3,000-car 164:14 252:19 280:21 324:16 83 37:14
183:14 197:8 315:3,7 3,035 108:4 325:22 350:10 359:18 849(b) 52:6
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1589 **
 489
862 52:6
87 65:16
87,000 386:19
88,000 387:4
8A 67:8
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256:14

9
9 34:22
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Neal R. Gross and Co., Inc.

(202) 234-4433 Washington DC www.nealrgross.com
** JPA.1590 **
 490

C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Vision McMillan Partners

Before: DC Historic Preservation Review Board

Date: 09-18-17

Place: Washington, DC

was duly recorded and accurately transcribed under

my direction; further, that said transcript is a

true and accurate record of the proceedings.

.5 1
-----------------------
Court Reporter

NEAL R. GROSS
COURT REPORTERS AND TRANSCRIBERS

(202) 234-4433 ** JPA.1591 **

1323 RHODE ISLAND AVE., N.W.
WASHINGTON, D.C. 20005-3701 www.nealrgross.com
 CERTIFICATE OF SERVICE

I, Chris Otten, et, al, attest that copies of the included

JOINT PETITIONER APPENDIX
were sent by Court e-service, email & post mail to the following parties on
September 26, 2019, as follows:

RESPONDENT

District of Columbia Zoning

Commission, Karl Racine, James
McKay, Loren Ali Khan, Esquire, 441
4th Street NW, Suite 1100S,
Washington, DC 20001.

Mary Carolyn Brown, Esquire

Donohue & Sterns, LLP
1750 K St. NW, Suite 1100
Washington, DC 20006

APPLICANT

Vision McMillan Partners LLC,

c/o Philip T. Evans
Holland & Knight LLP,
800 17th St NW
Washington, DC 20006

Signed,

/s/n

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

/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

Daniel Wolkoff
1231 Randolph Street NW
Washington DC 20017

/s/n

Cynthia Carson
42 Adams Street NW
Washington, DC 20001