Bowser v. Dupont E. Civic Action Ass'n

• Docket Number: 22-CV-0884,20-AA-0693
• Decision Date: 24 August 2023
• Parties: MAYOR MURIEL BOWSER, et al., APPELLANTS, v. DUPONT EAST CIVIC ACTION ASSOCIATION, et al., APPELLEES DUPONT EAST CIVIC ACTION ASSOCIATION, et al., PETITIONERS, v. D.C. OFFICE OF PLANNING, HISTORIC PRESERVATION OFFICE, MAYOR'S AGENT FOR HISTORIC PRESERVATION, RESPONDENT, and PERSEUS TDC, et al., INTERVENORS.
• Court: D.C. Court of Appeals

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MAYOR MURIEL BOWSER, et al., APPELLANTS,
v.
DUPONT EAST CIVIC ACTION ASSOCIATION, et al., APPELLEES

DUPONT EAST CIVIC ACTION ASSOCIATION, et al., PETITIONERS,
v.
D.C. OFFICE OF PLANNING, HISTORIC PRESERVATION OFFICE, MAYOR'S AGENT FOR HISTORIC PRESERVATION, RESPONDENT,

and PERSEUS TDC, et al., INTERVENORS.

Nos. 22-CV-0884, 20-AA-0693

Court of Appeals of The District of Columbia

August 24, 2023

Argued April 26, 2023

Appeal from the Superior Court of the District of Columbia (2019-CA-004130-B) (Hon. Yvonne Williams, Trial Judge)

On Petition for Review of an Order of the District of Columbia Mayor's Agent for Historic Preservation (2019-HPA-000497)

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Graham E. Phillips, Deputy Solicitor General, with whom Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, and Ashwin P. Phatak, Principal Deputy Solicitor General, were on the briefs, for appellants.

Michael D. Hays, with whom Barry Coburn and Marc Eisenstein were on the briefs, for appellees.

Gary M. Ronan, with whom Andrew Zimmitti and Joel E. Antwi were on the briefs, for Perseus TDC as amicus curiae in support of appellants.

Before EASTERLY and DEAHL, Associate Judges, and FISHER, Senior Judge.

DEAHL, ASSOCIATE JUDGE

These consolidated appeals concern the ongoing construction of an apartment building behind the Scottish Rite Temple-a historic landmark located at 1733 16th Street NW. The Temple occupies roughly half of a single record lot that spans an entire block and straddles the 14th and 16th Street Historic Districts, and that lot must be subdivided if this project is to proceed. The developer, Perseus TDC, sought approval for this subdivision from the Mayor's Agent for Historic Preservation, who approved its application over the opposition of several neighbors and neighborhood organizations, including the Dupont East Civic Action Association, or DECAA. Case No. 20-AA-0693, which we refer to as the subdivision appeal, is DECAA's challenge to the Mayor's Agent's approval of this subdivision.

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In addition to opposing Perseus's subdivision application, DECAA filed its own application with the Historic Preservation Review Board, or HPRB, to extend the boundary of the Temple landmark to encompass the entire block, including the land where the apartment building is being constructed. As part of its consideration of this application, the HPRB determined that the landmark's site boundaries had never actually been delineated. Accordingly, in its decision denying DECAA's request, the HPRB "t[ook] the opportunity presented by this application to clarify and confirm" that the boundaries of the Temple landmark are coterminous with the taxation lot occupied by the Temple at the time of its construction and for many decades thereafter-i.e., the western portion of the present-day record lot, outside the footprint of the apartment building project. DECAA filed suit challenging this decision, and the Superior Court ultimately granted its motion for summary judgment after concluding that the HPRB acted arbitrarily and capriciously in defining the Temple landmark's boundaries. Case No. 22-CV-0884, which we refer to as the boundary appeal, is the District's appeal from this judgment.

In both cases, we agree with the District. As to the subdivision appeal, the Mayor's Agent found that subdividing the property was consistent with the purposes of the District's historic preservation statute. Because that finding was supported by substantial evidence in the administrative record, we affirm the Mayor's Agent's

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decision. As to the boundary appeal, the HPRB's finding that the Temple landmark's boundaries had never been established and should be set as coterminous with the taxation lot occupied by the Temple at the time of its construction was neither arbitrary nor capricious, and the ruling was supported by substantial evidence. The Superior Court thus erred in vacating the HPRB's decision, and we reverse its order granting summary judgment to DECAA.

I.

The Scottish Rite Temple

Designed by famed architect John Russell Pope, the Scottish Rite Temple was constructed to serve as the headquarters for the Supreme Council of the Scottish Rite of Freemasonry, 33rd Degree, Southern Jurisdiction. Upon its completion in 1915, the Temple stood on Assessment and Taxation (A&T) Lot 800, which was comprised of record lots 86 through 100,^[1] running along the western corner of 16th and S Streets NW. At that time, the Temple was "hemmed in by rowhouses and

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streets," including a public alley that ran between the Temple and an adjacent carriage house, as depicted below:

(Image Omitted)

In the following decades, the Masons bought up adjacent lots and razed the rowhouses that occupied them. By 1964, they had acquired roughly half of the properties along S Street; the boundaries of A&T Lot 800, however, were not expanded to include these newly acquired record lots.

That same year. Congress established the Joint Committee on Landmarks of the National Capital, "an inter-governmental agency under the sponsorship of the Mayor of the District of Columbia and the two federal agencies, the Commission of Fine Arts and the National Capital Planning Commission." A&G Ltd. P'ship v. Joint Comm. on Landmarks of Nat'l Cap., 449 A.2d 291, 292 & n.4 (D.C. 1982).

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As one of its first acts, the Joint Committee published Landmarks of the National Capital: Preliminary List, a catalog of structures and places of significant historic or aesthetic value. This list included the Temple as a Category III landmark-i.e., a landmark "of value which contribute[s] to the cultural heritage or visual beauty and interest of the District of Columbia and its environs, and which should be preserved, or restored, if practicable." As with all Category III landmarks, the Joint Committee identified the Temple only by reference to its approximate address ("16th &S St., N.W."); its list did not specify precise landmark boundaries for the Temple. As noted, the Temple at that time still sat on A&T Lot 800, the same taxation lot it had occupied since its construction in 1915.

In 1966, shortly after the Joint Committee added the Temple to its preliminary list of District landmarks, Congress passed the National Historic Preservation Act, Pub. L. No. 89-665, 80 Stat. 915 (codified as amended at 54 U.S.C. §§ 300100 et seq.). Among its various provisions, this statute authorized grants to states that prepared comprehensive historic preservation plans. Id. § 102, 80 Stat. at 916. The District delegated responsibility for preparing its plan to the Joint Committee, see A&G Ltd., 449 A.2d at 292, which in 1973 published an updated list and map of "all the designated landmark buildings, places, and objects which comprise the District

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of Columbia's Inventory of Historic Sites." As with its preliminary list, the Joint Committee once again identified landmarks by their approximate addresses without any reference to their precise boundaries. This updated list was then incorporated into the District's statewide preservation plan, which was published the following year.

Meanwhile, the Masons had continued with their property acquisitions, including purchasing the adjacent carriage house and obtaining the closure of the public alley separating it from the Temple. The carriage house was located on its own A&T lot (808), which in 1976 the Masons combined with A&T Lot 800 and their other property holdings along S Street to create A&T Lot 820. This new taxation lot encompassed the property located within the western two-thirds of the block, as depicted below:

(Image Omitted)

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The following year, in 1977, the Joint Committee added the "Sixteenth Street Historic District" to the District's inventory of historic sites, defining it to include the buildings on both sides of 16th Street between Scott Circle and Florida Avenue. Unlike its treatment of Category III historic landmarks, the Joint Committee identified this historic district by reference to its specific boundaries, which it set using the rear lot line of every then-existing lot fronting 16th Street along this roughly 14-block span (including, evidently, the boundaries of both record lots and taxation lots). As a result, the historic district included all of A&T Lot 820, including the Masons' new property acquisitions that had been consolidated into this taxation lot the year prior.

Unlike the preliminary 1964 list, inclusion in the Joint Committee's updated catalog of historic sites triggered additional legal protections, including those set forth in the Historic Landmark and Historic District Protection Act, commonly called the Preservation Act, D.C. Code §§ 6-1101 to -1115. That statute placed various restrictions on the alteration, demolition, and subdivision of historic landmarks and other properties within historic districts, defined in reference to the D.C. Inventory of Historic Sites. Id. § 6-1102. As of 1979, when the statute took effect, that Inventory included both: (1) the Temple itself, which was listed by address only; and (2) the 16th Street Historic District, defined in relation to property

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lines and which included all of A&T Lot 820. The Preservation Act also authorized the creation of the HPRB, which in 1983 assumed the functions of the Joint Committee. See Donnelly Assocs. v. D.C. Hist. Pres. Rev. Bd., 520 A.2d 270, 271 &n.2 (D.C. 1987).

In the following decades, the Masons continued with their property acquisitions, and by the early 1990s they had purchased and razed the last of the rowhouses along 15th Street (the carriage house, however, remains to this day). In 2011, they obtained the closure of the remaining portion of the alley running through the block, and in 2013 they merged all of their holdings to create a new record lot- Lot 108-that spanned the entire width of the block from 15th to 16th Street, and was bounded by S...