DISTRICT OF COLUMBIA (OFFICE OF ADMINISTRATIVE HEARINGS oF ADM, One Judiciary Square ge C 441 Fourth Street, NW, Suite 450N *y Washington, DC 20001-2714 TEL: (202) 442-9094 ry ca 12) 442-4789 \ Me FAX: oah. filin wv Peay DC FOR REASONABLE DEVELOPMENT uh CHRIS OTTEN, et. al, Petitioner, FRIENDS OF MCMILLAN PARK, Case No.: 2019-DCRA-00135 Intervenor, v. OFFICE OF THE DEPUTY MAYOR FOR PLANNING AND ECONOMIC DEVELOPMENT, Intervenor, DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent. ORDER GRANTING DMPED AND DCRA’S MOTIONS FRO SUMARRY ADJUDICATION IN PAR AND DENYING IN PART AND SCHEDULING AN EVIDENTIARY HEARING ON NOVEMBER 10, 2020. 1 Summary This Order grants summary adjudication in favor of DCRA and DMPED in part and deny it in part, and schedules a hearing on whether DCRA independently considered the developers’ ability to complete the project for November 10, 2020 at 10:00 am Il, Procedural HistoryOn August 30, 2019, Reasonable Development (RD) requested a hearing alleging that the Department of Consumer and Regulatory Affairs (CRA) illegally issued a demolition permit allowing permanent harm (o the historic resources at McMillian Park, an national landmark. ‘On March 2, 2020, DMPED filed a Motion to Dismiss, Summary Revocation and for Summary Adjudication, or in the Alternative for Expedited Hearing. On March 31, 2020, FOMP filed an Opposition to DMPED and DCRA's Motions to Dismiss or for Summary Adjudication, On April 3, 2020, DMPED filed a Reply in Support of its Motion to Dismiss and for Summary Adjudication and memorandum in support of OAH Jurisdiction, On April 6, 2020, DCRA filed a Praecipe Joining DMPED’s motion for Summary Adjudication. On May 5, 2020, RD filed a further Briefing and Joining FOMP's Motion to Deny dismissal and Summary Adjudication. On May 12, 2020, RD Joined FOMP Motion to Deny DMPED and DCRA's Motion for Dismissal. ‘On May 28, 2020, DMPED filed a Sur-reply to its Motion to Dismiss and for Summary Adjudication, IIL, Summary of Undisputed Facts a. Ability to Complete Vision McMillan Partners (VMP) was awarded the contract to develop McMillan Park (the Property).‘The members of VMP have significant experience in developing projects of a similar size and scope to the planned development of McMillan Park, and have successfully finished developing several such projects. The D.C. Council approved $114 million in appropriations to fund development of the Property. However, these funds will only become available upon the start of the relevant phase of the development and after securing the relevant permits and approvals for the relevant phase. ‘The members of VMP have secured letters of interest from banks or other financial institutions, stating that they have an ongoing relationship with one or more of the members of MP and would be interested in providing financing, if the project is approved. However, none of these institutions have currently committed to funding the project. b. Issuance of Permits ‘On August 16, 2019, DCRA issued a permit for demolition to begin at the Property. On ‘August 27, 2019, DCRA issued a permit to begin construction of the foundation for the community center that was to be built on the Property. No demolition of historic aspects of the Property occurred between the issuance of the permits. ¢. Construction Code Tiber Creek, a tributary of the Potomac, historically ran through or under part of the Property. Tiber Creek currently has no demonstrated effect on the Property. IV. Conclusions of Law In its previous Order, this administrative court ruled upon the Motions to Dismiss, granting them in part and denying them in part. Several claims remain under the HPA and the Construction Code for summary adjudication, DMPED and DCRA assert that the Government parties are entitled to summary judgment in their favor on all of these issues. FOMP and RD, intum, oppose the grant of summary judgment to the Government parties, and RD asserts that they are entitled to summary judgment on all their remaining claims. Summary Adjudication Standard OAH Rule 2819. 1 allows a party to move for summary judgment. Such motions are governed by Superior Court Civil Rule 56, which state that “(t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' The Rule goes on to explain the test used to evaluate such motions: A burden-shifting test is used to evaluate whether summary judgment should be granted. ‘First, “[t]he party moving for summary judgment bears the initial burden of establishing that there is no genuine issue of material fact[.J” If the movant meets this burden, “then the burden shifts to the non-moving party to identify specific facts demonstrating a genuine issue for resolution at trial.” In order to demonstrate that such a “genuine issue” still remains, once the burden has shifted, “the non-moving party must show more than a ‘metaphysical doubt’ or a ‘scintilla of evidence.’. . . [TJhere must be some significant probative evidence tending to support the complaint so that a reasonable fact-finder could return a verdict for the non-moving party.” Historic Preservation Act he Non-Simultancous Issuance of the Permits was Harmless Erro1 While we disagree with the Government’s assertion that permits issued 11 days apart were issued simultaneously, we agree that this difference in time between the issuance of the " Anderson v. D.C. Dep't of Consumer and Regulatory Affairs, Case Nos. 2015-DCRA-00036, 2015- DCRA-00047, 2016 WL 11066272 at *1 (D.C.O.A.H. Feb. 19, 2016), 2 Gilbert v. Miodovnik, 990 A.2d 983, 988 (D.C. 2010). > Id. (quoting Warren v. Medlantic Health Group, Inc., 936 A.2d 733, 737 (D.C.2007)..permits is harmless error. Where incorrect sequencing and timing of administrative decisions violate a statute or regulation, the decisions may still be upheld if the error did not cause any substantive action that violated the statute or cause any prejudice to aggrieved parties.* es Here, the error was harmless. The 11-day delay was slight. Furthermore, because no demolition occurred between the issuance of the two permits, this error did not cause any substantive violations of the Act, Lastly, Neither FOMP nor RD has pointed out any way in which this delay prejudiced their interests or ability to argue their cases. Thus, the untimely issuance of the two permits was harmless error and we will grant summary judgment to the Government parties on this issue. ii) The Developers Have Demonstrated Their Ability to Complete the Project While we believe that FOMP stated a valid claim regarding the developers’ alleged lack of ability 10 complete the project, we will grant the Government summary judgment on the issue. The statute merely requires that the developers show the ability to complete the project, not that the developers currently possess all necessary funds for the entire project. Because the developers have shown their ability to obtain the necessary funds for the project at the necessary time, this administrative court finds that VMP has demonstrated its ability to complete the project. * See Foggy Bottom Ass'n v. D.C. Bd. of Zoning Adjustment, 791 A.2d 64, 73 n. 21 (D.C. App. 2002) (Several other courts have similarly held that failure to conduct an EIS [Environmental Impact Statement] review before approving an application is harmless error when the subsequent EIS review finds no significant environmental impact”). 5 See Rafferty v. D.C. Zoning Comm'n, 583 A.2d 169, 177 (D.C. App. 1990) (untimely intervention and filing of report by Office of Planning was harmless error where continuance requested by and granted to aggrieved party prevented any prejudice resulting from the untimeliness)..Section 6-1104(h) requires developers to “demonstrate[] the ability to complete the project.” In FOMP II, the Court of Appeals upheld the Mayor's Agent's determination that the developers had demonstrated the ability to complete the health complex portion of the project. However, the Court also stated that “[tJhe Mayor's Agent's Order addressed the applicants’ readiness solely with regard to the healthcare building component of the project. The applicants ‘must still demonstrate ability to complete the entirety of the project at the time they apply for a demolition permit from the DCRA.”® The text itself only indicates that the developers must demonstrate the “ability” to complete the project. Webster's Dictionary defines ability as “the quality or state of being able. . physical, mental or legal power to do something.”” The term ability is generally used to denote capacity to achieve something rather than a certainty that a thing will be achieved. The Court of Appeals’ in FOMP 1] confirmed this reading and rejected FOMP's argument that because the developers had not yet secured a tenant for the healthcare facility they had not yet demonstrated their ability to complete the healthcare complex portion of the development. ‘Thus, in FOMP II, the Court of Appeals did not require VMP to demonstrate a certainty that the healtheare complex would be occupied. By analogy, VMP would not be expected to have secured all funding necessary for the entirety of the project before construction has even begun. Instead, VMP would be expected to show that it has the ability to obtain the necessary funds when they would be required. © FOMP II, 207 A.3d at 1179 (D.C. 2019) "Ability, Merriam-Webster.com Dictionary. (2020), hitps://www.merriam-webster.com/dictionary/ability (accessed October 06, 2020).Even assuming that FOMP is correct that only the financial feasibility of the project is relevant,* VMP has shown that it and the District will be able to secure the necessary funding as the project continues. We find that the extensive documentation provided by the Government is enough to establish for any reasonable jury that VMP has the ability to complete the development. Moreover, FOMP has not introduced evidence to suggest that the developers will lack the capability to gather the funding necessary to complete each phase of the project at the time that the project must be completed, Therefore, FOMP has failed to demonstrate that any contested ‘material facts remain as to the developer's ability to complete, and we will grant summary judgment to the Government on this issue. i) DCRA has Not Met its Burden of Demonstrating that it Independently Considered the Developers’ Ability to Complete the Project In FOMP II, The Court of Appeal stated that DCRA must make an independent determination of the developers’ ability to complete the project before issuing a demolition permit.” The only evidence in the record on whether DCRA considered the ability of the developers to complete the project is a hearsay affidavit of the code official. A hearsay affidavit 5 FOMP argues that a developer's “ability” to complete a project refers merely to the financial assets and equity which the developers have already secured. DCRA argues that “ability” entails “the experience of the applicant/developers in completing projects; b) financial support for the project; and ¢) the operational capacity to complete the project. D.C. Department of Consumer and Regulatory Affairs Motion to Dismiss or in the Alternative Summary Adjudication of the Appeal, at 9 (quoting PX A, Declaration of Clarence Whitescarver, at 5). In the opinion of this administrative court, DCRA has the better of this argument, There is no textual support for the assertion that ability to complete may only refer to capital and investments already secured. Furthermore, the experience and relations of the developers speaks to financial feasibility: experienced developers with proven track records at completing large developments will presumably be better able to secure financing. ° Friends of McMillan Park v, D.C. Mayor's Agent for Historic Pres., D.C. Office of Planning, 207 A.34 1155, 1179 (D.C. App. 2019).where the affiant has not been subject to cross examination is not sufficient to carry the proponent’s burden on a Motion for Summary Judgment in front of this administrative court. Hearsay is admissible in front of this administrative court.'° However, there are limits on the weight we can grant hearsay evidence, and the weight it is given depends on the circumstances of each case.'' Administrative courts rely on several factors in assessing the ‘weight that should be given to hearsay evidence, including: “whether the declarant is biased, whether the testimony is corroborated, whether the hearsay statement is contradicted by direct testimony, whether the declarant is available to testify and be cross-examined, and whether the hearsay statements were signed or sworn.””? While we weigh each of these factors, the Court of Appeals has indicated that, even in the administrative context, “[wJhere. . the declarant is available to testify and be cross-examined, the practice of relying exclusively on hearsay is strongly discouraged and should be heavily ‘weighted against the sponsoring party.”"? Here, the affidavit of Mr. Whitescarver meets most of the above factors. The testimony has been corroborated to some extent by the extensive financial documents that were submitted into evidence as part of the developers’ request for the reinstatement of the demolition permit. While no live testimony has been taken in this case, neither FOMP nor RD have pointed to a possible source of direct testimony that would contradict the affidavit. The hearsay statement ‘was signed and sworn, Finally, neither FOMP nor RD have made any particular showings of bias on the part of Mr. Whitescarver. "OAH Rule 2821.12 "" Compton v, D.C. Bd. of Psychology, 858 A.2d 470, 476-77 (D.C. 2004) "2 Wisconsin Ave. Nursing Home v, D.C. Comm'n on Human Rights, 527 A.2d 282, 288 (D.C. 1987). "3 Compton v, D.C. Bd. of Psychology, 858 A.2d 470, 479 (D.C. 2004).However, Mr. Whitescarver’s declaration is the only direct evidence in the record of DCRA's consideration of the developer's ability to complete the project . Because this case is currently at the summary judgement stage, and reliance on hearsay is “strongly discouraged” where the declarant may be called to testify, Mr. Whitescarver’s declaration alone cannot meet the Government's burden on summary judgment. Construction Code While this administrative court denied the Motions to Dismiss as to Tiber Creek’s alleged effects on the foundation of the community center, in violation of §§ 1602 and 1803 of the D.C. Building Code, we will grant the Government summary judgment on these issues. The geotechnical analysis performed by the developers on the site establish that there are no present effects on the site from Tiber Creek and accounted for other sources of groundwater. RD has not introduced any evidence to throw the Government's conclusions into doubt. Thus summary {judgment will be granted in favor of the government on this issue. ‘As stated above, on summary judgment we apply a burden-shifting test. The movant must establish that there is not contested issue of material fact on which a reasonable jury could find for the non-movant.'* Once the movant has met their burden, the burden shifts to the non-movant to introduce evidence that would allow a reasonable jury to find for them on an issue of material fact. This requires introducing some form of significant evidence.'* “[MJere conclusory allegations by the non-moving party are legally insufficient to avoid the entry of summary judgment." '® Joyner v. Sibley Mem'l Hosp., 826 A.2d 362, 368 (D.C. 2003).Here, the Government has carried its burden of establishing that there is no contested issue of material fact. Its geotechnical analysis shows that the effects of Tiber Creek on the site were mitigated upon the construction of the filtration plan through mass grading activities and the placement of fill material. ‘The analysis found no effects from Tiber Creek on the site at the current time. Finally, the analysis did find groundwater on the site at the level of the foundations but recommended construction and excavation techniques to address the presence of groundwater. Despite RD conclusory assertions that Tiber Creek caused the deterioration of the filtration cells on the site and will continue to affect the proposed community center, the Government's report carries its burden of demonstrating that there was no contested issue of material fact as to its compliance with § 1602's standards for dealing with nominal loads. Similarly, it meets the Government's burden as to § 1803 by demonstrating that the Government found no effects of Tiber Creek on the site and adequately considered the effects of groundwater on the construction, This demonstrates that there would be no need to order additional geotechnical studies. Itis therefore on this__day of October, 2020: ORDERED, that DMPEDs and DCRA’s Motions for Summary Adjudication is GRANTED in part and DENIED in part; and it is further ORDERED, that the Parties appear for an evidentiary hearing on November 10, 2020 at 10:00am to present further evidence on DCRA’s independent determination that the developers have the ability to complete the project; and it is further, 10ORDERED, that at the hearing Clarence Whitescarver, Chief Building Official of DCRA, shall appear to testify on DCRA’s determination that the developers have the ability to ‘complete the project; and it is further, ORDERED, that if Mr. Whitescarver is unavailable to testify November 10, 2020 at 10:00am DCRA must, within five days of the issuance of this Order, show cause as to why he will be unavailable and offer alternative dates. Ist Claudia A. Crichlow Principal Administrative Law Judge unCertificate of Service: By Email and First Class Mail (Postage Paid): Andrea C. Ferster Representing Friends of McMillan Park Law Offices 2121 Ward Court, NW, Sth Floor Washington, DC 20037 aferster@railstotrails.org By M: Jimmie Boykin 2406 N Capitol St NW Washington, DC 20002 By Email: Esther Yong McGraw General Counsel Dep't of Consumer and Regulatory Affairs 1100 4th Street, SW ~ Sth Floor Washington, DC 20024 Email: oaheserve.dera@de.gov Doris Parker-Woolridge Assistant General Counsel doris.parker-woolridge@dc.gov Hugh J. Green Assistant General Counsel Hugh.green@de.gov Andrew J. Saindon Senior Assistant Attorney General Andy.saindon@de.gov Toni M, Jackson Deputy Attorney General Toni jackson@dc.gov Femando Amarillas Chief, Equity Section Femando.amarillas@dc.gov 12 Gregory M. Cumming Assistant Attorneys General Gregory.cumming@de.gov Brendan Heath Assistant Attorneys General Brendan.heath@dc.gov Chris Otten DC for Reasonable Development Dedreality@gmail.com Daniel Wolkoff Amglassar@yahoo.com Cynthia Carson Cyncarson@gmail.com Melissa Peffers Mpeffs@gmail.com Jerome Peloquin ‘Aquaponikus@gmail.com James Fournier James fournier@gmail.com Linwood Norman Linwood.norman@gmail.com Yonna Pendelton Yonnal994@gmail.com Michael Werstein Michaelwerstein@gmail.com Thereby certify that on _|{ eo 1 2020 this document was sefved upon the parties named on this page at the address(es) and by the means stated. Glerk/Deputy Cler