DISTRICT OF COLUMBIA

COURT OF APPEALS
_________________________________________
|
Cynthia Carson, Pro Se Petitioner |
James Fournier, Pro Se Petitioner |
Linwood Norman, Pro Se Petitioner |
Chris Otten, Pro Se Petitioner |
Melissa Peffers, Pro Se Petitioner |
Jerome Peloquin, Pro Se Petitioner |
Jenifer Simpson, Pro Se Petitioner |
Daniel Wolkoff, Pro Se Petitioner | DCCA Case No. 18-AA-1146,
Joint Petitioners | 18-AA-500 & 501
|
v. |
|
District of Columbia |
Zoning Commission |
Respondent |
|

PETITIONERS’ RESPONSE IN OPPOSITION TO INTERVENORS’ MOTIONS FOR

ABEYANCE & PETITIONERS’ REPLY IN SUPPORT OF PETITIONERS’ MOTION FOR
CONSOLIDATION

On November 30, 2018, Intervenor, Vision McMillan Partners (‘VMP’), and the

Deputy Mayor’s Office for Planning and Economic Development (“DMPED”) responded to

Petitioners’ Motion for Consolidation and concurrently filed a Motion to Hold Appeals in

Abeyance ('Intervenors Motion for Abeyance').

Intervenors appear to argue, that all the petitions for judicial review concerning the

Zoning Commission and Mayor’s Agent administrative matters regarding the

redevelopment of the McMillan Park & Slow Sand Filtration Plant pursuant to the VMP

Project Master Concept Plan, and its separate Phase Plans, should not be consolidated, and

clearly assert that all petitions except FOMP’s Petition for Review should be held in

abeyance. These arguments rest on no rational basis.

Intervenors may recall it was they who sought consolidation on all the related
McMillan administrative matters (DCCA Case Nos. 15-AA-0493, 15-AA-0525, 15-AA-0536,

15-AA-0572, and 15-AA-1008). And the Court granted as such, without prejudice. Now

Intervenors contradict themselves and argue against consolidation and seek abeyance. As

the Intervenors themselves did in the original McMillan Park cases, Petitioners are asking

the Court to do now and here with Joint Petitioner cases and allow all the related matters to

proceed to briefing and argument before any decision is reached by the Court.

Intervenors have not sufficiently demonstrated a coherent rationale in

support of its Motion and Opposition. Now, as in the original McMillan Park cases,

consolidation will result in the merging of two different administrative records, i.e.

"concerning the same project" and seek review of alleged "injuries [that] are all inter-

related." Petitioner's Motion to Consolidate submitted on November 19, 2018, at p. 1.

Moreover, there are numerous facts relevant to both the ZC and Mayor’s Agent matters that

will have to be addressed repeatedly by the Court. For example, the historic uses of the

Plant Site, the design issues of the planned Project, and applicable law are common

elements of all petitions. If the land use at the Site, and the design and densities of the

proposed buildings and structures of the Project and other related operational issues are

not permissible under D.C. statutes, these issues directly also relate to a finding that

demolition of historic structures is necessary in the public interest as a Project of Special

Merit. A project may be one of Special Merit but also be deemed to not sufficiently justify

the social cost of demolition of historic structures. Similarly, the Zoning Commission’s

approval of the PUD application for the VMP Project is required to consider the effects of

the project on the surrounding areas (to the proposed Project). These effects include

impact upon the historic resources at the Site, the adjacent active water filtration system
and reservoir, and also the interests and uses of the residents adjacent to the Site and the

remainder of the Historic District, and effects upon other sites also on the National Register

of Historic Places and/or the DC Inventory of Historic Places.

Joint Pro se Petitioners never allege that the consolidation would consist of only the

exact "same [agency] records” as if that is the only determinant consideration for the Court.

See Intervenor VMP Motion for Abeyance, at pp. 2-3. Intervenors are attempting to divert

the Court’s attention from interrelated matters concerning the same project and the same

project site, and are making "factually incorrect" representations. Intervenor VMP Motion

for Abeyance, p2. Petitioners obviously know and realize that there are two separate

records here, but each administrative record also contains numerous common facts and

legal issues relevant to the Court’s conclusions. Just as in the original Petitions for Review

for both administrative matters, Petitioners, Respondent, and Intervenors and this Court

previously agreed that consolidation of these matters with concurrent litigation in both was

appropriate and also in the interests of judicial efficiency. Apparently, Intervenors and

associates fear that the same efficient approach in these matters may prove unfruitful for

them, as it did during the original litigation of these matters prior to the remand.

Petitioners Opposition to Motion for Abeyance

By asking the Court to grant abeyance of petitions for review, Intervenors seek to

prejudice Petitioners’ rights seeking judicial review pursuant to DC law, See D.C. APA, DC

Code § 2- 510. Intervenors want the Court to deny Petitioners both substantive and

procedural ‘due process of law’ guaranteed under the Fifth and Fifteenth Amendments to

the U.S. Constitution.

First, not all of Petitioners’ concerns and claims are the same as Friends of
McMillan Park ("FOMP") and Intervenor VMP claims. FOMP's distinct and unique claims

were just heard by the Honorable Bench about two months ago on, October 17, 2018 (DCCA

No. 18-AA-357), and are quite different than ours. Joint Petitioners seek review of how the

Mayor's Agent completely ignores the McMillan Park & Sand Filtration Plant deed-

covenants. Quitclaim Deed, United States General Services Administration, GSA Region 4,

Atlanta Ga. Office of Regional Counsel, dated September 25, 1987, p.1. (“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 are

future persons or entities owning or having an interest in said portion of the McMillan

reservoir. District of Columbia, or part thereof.”) . See McMillan Historic Preservation

Report, by EHT Traceries, Final Draft 7-28-2010, p. 206. These covenants are Federally-

assigned restrictions binding on the District of Columbia that have been so far

circumvented illegally by the Applicant, and unjustly disregarded by the Mayor's Agent

Orders HPA Nos. 14-393, 15-133 (DCCA 18-AA-500 & 501) and the Zoning Commission in

ZC Order No. 13-14A (DCCA Case No. 18-AA-1146).

Secondly, Petitioners seek adjudication of erroneous conclusions that do not flow

from findings on the inter-related records as it regards preservation of the historic assets at

the site, including the 20-acres of nationally landmarked underground waterworks & filter

beds. Moreover, agencies didn’t consider potential alternatives achieving “special merit”

requiring less, or no demolition of historic features, is a central claim by Pro se Petitioners.

In totality, Joint Pro se Petitioners' claims are separate, yet equally as

important as those claims already raised to the Court by FOMP. Petitioners believe that

if this Court were to reject FOMP’s petition for review, the Intervenor ,VMP, and DMPED,
will immediately and irreparably demolish historic resources at the Site, while merits of

other petitions would be considered too late. Intervenor recently informed this Court that,

“[o]nce the base infrastructure work is completed at the Site ... Parcel 2 [at McMillan Park]

will be turned over to Jair Lynch Development Partners ... to undertake the development ... .”

Intervenor's Motion for Abeyance, p2. The above representations by Intervenor, VMP and

DMPED, establish that the Applicant’s proposed project is already underway. McMillan

Stabilization and Restoration Project webpage, District of Columbia Department of General

Services (“DGS”) website, https://dgs.dc.gov/page/mcmillan-stabilization-and-restoration-

project.

“What can go forward, under the consistency test is the demolition. ...[T]here is

nothing vacated right now, we have two live orders.” Carolyn Brown, Esquire, Counsel for

Intervenor, as stated on October 17, 2018, to the District of Columbia Court of Appeals, Oral

argument on FOMP’s claims (DCCA No. 18-AA-357). Intervenors’ arrogance is evident in

challenging the authority of the Court to review these inter-related administrative matters.

Petitioners request to consolidate is urgent as demolition of this nationally recognized

historic site and its cultural assets presents imminent harm.

The agency records in this matter reflect adverse impacts that have not been

considered during the administrative proceedings, but are clearly relevant according to the

law. Petitioners intend to introduce other relevant facts not yet raised, and seek review of

the separate and different claims as shown above. However, Petitioners’ interests and

rights rest entirely on having an historic site and resources to protect.

The likelihood of permanent injury to Petitioners’ and the public interest, in their

enjoyment of a restored McMillan Park, is not conjecture especially considering

Intervenors’ brazen representations as shown above. We believe our claims are supported

by decades of historic preservation case law, and more accurately, “Any and all

rehabilitation and renovation work at the parcel will be undertaken in accordance with The

Secretary of Interior’s Standards for Rehabilitation and Guidelines for Rehabilitating

Historic Buildings.” Quitclaim Deed, United States General Services Administration, GSA

Region 4, Atlanta Ga. Office of Regional Counsel, dated September 25, 1987, p.5. See

McMillan Historic Preservation Report, by EHT Traceries, Final Draft 7-28-2010, p. 210.

Contrary to the legal requirements of the covenants, VMP and DMPED, have provided notice

that it intends to destroy an important cultural and social asset of the people of the District

of Columbia and the nation, and to possibly do so before all Petitioners can assert their

interests and legal rights.

Joint Pro se Petitioners respectfully ask the Court to grant our Motion to Consolidate

for the reasons stated herein (and in prior pleadings). We ask all petitions be litigated

concurrently and completely prior to any other decisions by the Court, certainly before any

demolition begins. Moreover, the Applicant has not demonstrated the basis on which it

rests its request for an “abeyance,” so Petitioners ask the Court to deny Intervenor's Motion

for Abeyance as prejudicial and directly harming Petitioners’ interests and rights to judicial

review, due process of law.

Respectfully submitted,

Daniel Wolkoff, Pro se Petitioner

__________/s/n______________
Cynthia Carson, Pro Se Petitioner

__________/s/n______________ __________/s/n______________
James Fournier, Pro Se Petitioner Linwood Norman, Pro Se Petitioner

__________/s/n______________ __________/s/n______________
Chris Otten, Pro Se Petitioner Melissa Peffers, Pro Se Petitioner

__________/s/n______________ __________/s/n______________
Jerome Peloquin, Pro Se Petitioner Jenifer Simpson, Pro Se Petitioner
 CERTIFICATE OF SERVICE

I, Daniel Wolkoff, attest that copies of the included PETITIONERS’ RESPONSE IN

OPPOSITION TO INTERVENORS’ MOTIONS FOR ABEYANCE & PETITIONERS’ REPLY IN
SUPPORT OF PETITIONERS’ MOTION FOR CONSOLIDATION, were sent by regular post
mail on the13th day of December, 2018, to the following parties:

RESPONDENT
District of Columbia Zoning Commission,
Loren Ali Khan, Esquire, 441 4th Street NW,
Suite 600S, Washington, DC 20001.

APPLICANT
Vision McMillan Partners LLC,
c/o Philip T. Evans & Whayne Quin, Esqs.,
Holland & Knight LLP,
800 17th St NW
Washington, DC 20006

* Courtesy copy to Andrea Ferster by email:

aferster@railstotrails.org

Signed,

Daniel Wolkoff, Pro se Petitioner

1231 Randolph Street NE
Washington, DC 20017