Citizens Committee v. District of Columbia

• Citation: 432 A.2d 710
• Decision Date: 29 May 1981
• Docket Number: No. 80-179.,80-179.
• Parties: CITIZENS COMMITTEE TO SAVE HISTORIC RHODES TAVERN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT, Respondent. Oliver T. Carr, Jr., and George H. Beuchert, Jr., Trustees, Intervenors.
• Court: Court of Appeals of Columbia District

432 A.2d 710

CITIZENS COMMITTEE TO SAVE HISTORIC RHODES TAVERN, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT, Respondent Oliver T. Carr, Jr., and George H. Beuchert, Jr., Trustees, Intervenors.

No. 80-179.

District of Columbia Court of Appeals.

Argued October 29, 1980.

Decided May 29, 1981.

COPYRIGHT MATERIAL OMITTED

William A. Dobrovir, Washington, D. C., with whom S. Richard Rio, Jr., Washington, D. C., was on the briefs, for petitioner.

Richard B. Nettler, Asst. Corp. Counsel, Washington, D. C., argued for respondent. Richard W. Barton, then-Deputy Corp. Counsel, Washington, D. C., also entered an appearance for respondent. (Respondent adopted the briefs of intervenors.)

Norman M. Glasgow, Washington, D. C., with whom Norman M. Glasgow, Jr., and Carolyn J. Hamm, Washington, D. C., were on the briefs, for intervenors.

Before HARRIS, MACK and FERREN, Associate Judges.

HARRIS, Associate Judge:

Petitioner seeks review of an order of the Mayor's Agent issued under the District of Columbia Historic Landmark and Historic District Protection Act of 1978, D.C.Code 1980 Supp., §§ 5-821 et seq. (the Act), authorizing a demolition permit to allow the razing or relocation of a building located at the corner of 15th and F Streets, N. W., known as Rhodes Tavern.¹ In its challenge to the order, petitioner contends that: (1) the Mayor's Agent failed to apply the appropriate statutory standard for concluding that the permit should be issued; (2) there was insufficient evidence in the record to support the finding of the Mayor's Agent that demolition is necessary to allow the construction of a project of special merit; (3) the Act is impermissibly vague; and (4) the Mayor's Agent erred in denying petitioner's motion for her disqualification. Finding no error, we affirm.

I

The chronology of events in this case is somewhat complex and the issues are pervaded by a degree of emotionalism.² On one side is petitioner, a group of citizens motivated by a desire to preserve historical values in the District of Columbia, which unquestionably is one of the nation's historically most significant cities. On the other side are the intervenors, motivated by their not altogether selfless desire to stimulate economic growth in a city in need of it. In between was the Mayor's Agent who, in effect, is directed by statute to resolve the conflict between preservation and development objectives. Our review of her decision is limited.

In enacting our historical preservation statute, the District of Columbia joined the 50 states and over 500 municipalities which have passed similar statutes "to encourage or require the preservation of buildings and areas with historic or aesthetic importance." Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 107, 98 S.Ct. 2646, 2650, 57 L.Ed.2d 631 (1978) (footnote omitted). As the Supreme Court noted, these legislative efforts have been prompted by two concerns:

The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. [Id., at 108, 98 S.Ct. at 2651 (footnotes omitted).]

See also Maher v. City of New Orleans, 516 F.2d 1051, 1060 (5th Cir. 1975), cert. denied, 426 U.S. 905, 96 S.Ct. 2225, 48 L.Ed.2d 830 (1976). Likewise, our statute declares "as a matter of public policy that the protection, enhancement and perpetuation of properties of historical, cultural and aesthetic merit are in the interests of the health, prosperity and welfare of the people of the District of Columbia." D.C.Code 1980 Supp., § 5-821(a). See Don't Tear It Down, Inc. v. Department of Housing and Community Development, D.C.App., 428 A.2d 369 at 373 (1981). To implement this policy, the Act provides a statutory scheme whereby, once a building has been designated a historic landmark, proceedings looking to demolish or alter it in any way must be conducted by the Mayor or his designated agent³ with the advice of the Historic Preservation Review Board.⁴

Against this backdrop, intervenors propose to construct an office and retail stores complex subsuming the downtown block bounded by 14th, 15th, F, and G Streets, N. W., excluding the area occupied by Garfinckel's department store. In designing their proposal, intervenors were faced at the outset with a substantial obstacle, namely, the presence of the site of three Category II landmark structures: the Keith's Theater and Albee Building (Keith-Albee), the National Metropolitan Bank building (the Bank), and the remains of Rhodes Tavern, a portion of which had been destroyed in 1957.⁵ The structures face, directly across 15th Street, the United States Treasury Building, which is a Category I landmark.

By the fall of 1977, the Carr Company was investigating development alternatives for the site. In January 1978, intervenor Carr contracted with the architectural firm of Skidmore, Owings & Merrill to prepare a comprehensive study of the site's design potential with particular attention to determining the feasibility of preserving all three landmarks on the block. The architect assigned to the project prepared nine alternative proposals, ranging from total preservation of all three landmarks to their total demolition. In assessing the various options, the architect's main objective was to design a project combining the revitalization of a portion of downtown Washington with the preservation of those historic structures which, by virtue of their scale and design, would contribute to that revitalization. In line with this objective and in light of preliminary cost analyses, the Carr Company gave further consideration to four of the nine alternatives:

(1) Retain Rhodes Tavern and the facades of the Keith-Albee and Bank buildings;

(2) Retain the facades of the Keith-Albee and Bank buildings, without Rhodes Tavern;

(3) Retain only Rhodes Tavern; and

(4) Demolish all three structures to allow all new construction.

In the meantime, after applying for demolition permits for the three structures, intervenor Carr began negotiating with the city for assistance in obtaining grants to fund preservation of the landmarks.⁶ Carr also negotiated with local preservation groups, including the Joint Committee on Landmarks and Don't Tear It Down, Inc., in an effort to gain their support. When it became clear that funding sufficient to retain all three structures would not be forthcoming, demolition of the rear portion of the Keith-Albee building began (pursuant, of course, to a permit). On April 25, 1979, Don't Tear It Down filed suit in the Superior Court in an effort to stop the demolition. Don't Tear It Down, Inc. v. Oliver T. Carr Co., Civil Action No. 5046-'79. Shortly, thereafter, the trial court ruled that demolition could proceed since the city had failed in its efforts to secure adequate public funding to retain all three structures. Negotiations among Carr, the city, and Don't Tear It Down continued. From those, the current proposal emerged. Since the District government — with the concurrence of Don't Tear It Down — placed a higher priority on retention of the facades of the Keith-Albee and Bank buildings (because of their scale and design in relation to the Treasury building) over retention of the substantially smaller Rhodes Tavern, an agreement was reached whereby Carr could construct a complex that would; (1) retain the 15th Street facade and at last four bays of the G Street facade of the Keith-Albee building; (2) retain the 15th Street facade of the Bank building; (3) either donate Rhodes Tavern to a nonprofit organization for relocation, or demolish it; and (4) relocate the interior of the Old Ebbitt Grill within the new commercial structure.

Intervenors applied for the permits needed to proceed with the project, including a permit for the demolition of Rhodes Tavern.⁷ Pursuant to our historical preservation statute, the applications were referred to the Joint Committee on Landmarks for review. On October 18, 1979, the Joint Committee recommended that the Mayor's Agent hold a public hearing

to determine if any of the three demolitions requested should be permitted and whether the alteration requested is a project of special merit. The Committee believes that the Rhodes Tavern, a Category II Landmark, which by definition should be preserved, if possible, should not be demolished or moved unless the Mayor's Agent determines that the proposed alteration is a project of special merit.

The Mayor's Agent conducted a public hearing on the applications on December 10, 11, and 13, 1979. On February, 11, 1980, finding the requested permits to be necessary to allow the construction of a project of special merit, the Mayor's Agent ordered the issuance of the permits. This petition for review followed.

II

In order to authorize issuance of a demolition permit to raze a historic landmark, the Mayor's Agent must find "that issuance of the permit is necessary in the public interest." D.C.Code 1980 Supp., § 5-824(e).⁸ Under the Act, the phrase "necessary in the public interest" means "consistent with the purposes of this chapter as set forth in section 5-821(b) or necessary to allow the construction of a project of special merit." Id., § 5-822(j).⁹ A project of "special merit" is one "having 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...