DC PRES. LEAG. v. DEPT. OF CONSMR. AFFRS.

• Court: D.C. Court of Appeals
• Writing for the Court: FERREN and TERRY, Associate , and PRYOR, Senior
• Citation: DC PRES. LEAG. v. DEPT. OF CONSMR. AFFRS., 646 A.2d 984 (D.C. 1994)
• Decision Date: 22 August 1994
• Docket Number: No. 93-AA-198.,93-AA-198.
• Parties: DISTRICT OF COLUMBIA PRESERVATION LEAGUE, Petitioner v. DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent. Scoville Street Corporation, Intervenor.

646 A.2d 984

DISTRICT OF COLUMBIA PRESERVATION LEAGUE, Petitioner v. DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent Scoville Street Corporation, Intervenor.

No. 93-AA-198.

District of Columbia Court of Appeals.

Argued March 30, 1994.

Decided August 22, 1994.

As Amended September 26, 1994.

Richard B. Nettler, with whom Sharon Buccino, Washington, DC, was on the brief, for petitioner.

Lutz Alexander Prager, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for respondent.

J. Kirkwood White, Washington, DC, for intervenor.

Before FERREN and TERRY, Associate Judges, and PRYOR, Senior Judge.

TERRY, Associate Judge:

Petitioner, the District of Columbia Preservation League ("DCPL"), seeks review of an order issued by the Mayor's agent, after an evidentiary hearing, which granted the application of Scoville Street Corporation ("Scoville") to demolish a historic landmark building which it owns in the District of Columbia.¹ The DCPL argues that the Historic Landmark and Historic District Preservation Act of 1978 ("Preservation Act"), D.C. Law No. 2-144, codified at D.C.Code §§ 5-1001 through 5-1015 (1988), does not authorize the demolition of a historic landmark when (1) the owner is not suffering economic hardship, (2) the demolition will not ultimately enhance the landmark, and (3) demolition is not necessary to allow the construction of a project of special merit. The DCPL also contends that the building's structural instability and possible threat to the health and welfare of the community are factors that the Mayor's agent is not permitted to consider under the Preservation Act. In opposition, Scoville and the Department of Consumer and Regulatory Affairs ("DCRA")² assert that the Mayor's agent acted consistently with the Preservation Act in granting the permit. Moreover, the DCRA requests a remand of this case so that the Mayor's agent may impose a restrictive covenant, to run with the land, in order to ensure that any future development of the site at issue will be in conformity with the present structure.

We hold that the Mayor's agent did in fact exceed his statutory authority under the Preservation Act in granting the demolition permit, and thus we reverse his decision. We also hold that the Mayor's agent has no authority to impose a restrictive covenant on the land, and thus we reject the DCRA's suggestion to remand the case for that purpose. Instead, we direct the Mayor's agent on remand to refer this case to either the Condemnation Board or the Corporation Counsel for further proceedings consistent with this opinion.

I

A. Facts and Procedural History

On January 15, 1990, Scoville purchased the President Monroe apartment building ("the Monroe") on Massachusetts Avenue, N.W., as part of its ongoing plan to acquire and resell to developers adjacent parcels of land situated in the Downtown Development District.³ Scoville tried to gain permission to demolish the Monroe after several reported incidents of criminal activity in the vacant building. At that time, however, the Historic Preservation Review Board ("Preservation Board") was considering whether to designate the Monroe, which was built in 1902, as a historic landmark. Such a designation, if granted, would forestall Scoville's efforts to tear it down. The Monroe ultimately was designated as a historic landmark on January 16, 1991.⁴

In February 1992 Scoville officially applied for a permit to demolish the Monroe. Exercising its authority under D.C.Code §§ 5-1003(c)(1) and 5-1004(b), the Preservation Board reviewed Scoville's application and recommended that the application be denied, concluding that the "proposed demolition is inconsistent with the purposes of D.C. Law 2-144 the Preservation Act. . . ." Scoville then requested a public hearing before the Mayor's agent. Scoville also notified the Preservation Board that it intended to claim at the hearing that denial of the demolition permit would result in "unreasonable economic hardship," which would entitle Scoville under the Preservation Act to obtain a permit to raze the building.⁵

On July 22, 1992, the DCPL notified the DCRA that it would oppose Scoville's application, and several days later it submitted a statement of its reasons for doing so. According to the DCPL, the Monroe had been in excellent condition until Scoville purchased it in 1990,⁶ but since that time two fires had extensively damaged the building. The first fire occurred on January 10, 1991, less than one week before the Monroe was designated as a historic landmark. Although the fire department concluded that only minimal damage resulted from this blaze, on-site observations by the DCPL revealed that the westernmost bay on all four floors had been destroyed and that the front entrance was no longer sealed.

The second fire took place on June 19, 1992, less than a month after the Preservation Board recommended that Scoville's demolition application be denied. This fire caused more widespread damage to the building. To stabilize the structure after this fire, the Building and Land Regulation Administration on July 17, 1992, issued a permit to Scoville for partial demolition so that "imminently dangerous and unsafe portions" of the building could be removed. The DCPL also noted that between January 1991 and June 1992 "small amounts of the front facade were incrementally chipped away." Finally, the DCPL alleged that Scoville had violated the partial demolition permit issued on July 17 by conducting "significant demolition of the Monroe" on July 20 and 21, 1992.

On August 5, 1992, a public hearing was convened before the Mayor's agent.⁷ The DCPL called three witnesses and introduced eighteen exhibits in support of its position that Scoville's application should be denied. The first witness was Steven Callcott, a former DCPL employee, who testified about the Monroe's changing condition between January 1991, the month in which it became a historic landmark, and June 1992. During that period, Callcott said, the Monroe had undergone "a piecemeal sort of demolition" in the aftermath of the two fires, especially the first one. Supporting his testimony with a series of photographs taken between February 1990 and June 1992, Callcott observed that the Monroe was in remarkably good condition before its sale to Scoville, but that under Scoville's ownership the building had drastically deteriorated.

Jacqueline Prior, the executive director of the DCPL, testified that in her opinion the Monroe was still salvageable, despite its dilapidated condition, although restoring the building would be time-consuming and costly.⁸ Steven Raiche, the chief of the Historic Preservation Division of the DCRA, testified that the permit issued on July 17, 1992, did not allow Scoville to raze the Monroe, but gave only limited authorization to stabilize the building in the wake of the June fire. Both Prior and Raiche noted that the Monroe's rate of deterioration while under Scoville's ownership greatly exceeded the normal wear and tear of similar buildings. At the close of the hearing, the Mayor's agent tentatively denied Scoville's application, but then decided to hold a further hearing at which Scoville could present evidence.

The second hearing, at which counsel for Scoville was present, took place a few weeks later. Scoville's first witness, Edward Jones, was hired by Scoville to perform the partial demolition in mid-July. Jones testified that the demolition was carried out in accordance with the permit issued by the Building and Land Regulation Administration. Scoville also called Satish Shah, a structural engineer, who examined the Monroe on two occasions, the first in late August 1992. At that time he noticed that the Monroe had sustained significant damage on the first floor and that a support beam over the front entrance was loose and potentially hazardous. He also saw that several of the balconies on the third floor were missing and that the top floor was in a deteriorated state. Shah concluded that the building was unsafe. James Jennings, an architect and an expert in historic preservation, testified that the front facade of the building was completely missing and that other historically significant aspects of the building were either damaged or gone. Commenting on the historical value of what was left of the building, Jennings said that the most historically significant parts of the building had been destroyed.⁹

James Shelton, a construction inspector for the DCRA, testified that on a visit to the Monroe on July 17, 1992, he noticed that the east wing of the structure was "in bad Vincent Ford, issued a "violation notice" stating that the building was "unsafe and dangerous" and directed Scoville to raze the east portion of the building down to the bottom of the fourth floor, rather than to the window sill as specified in the permit. Shelton testified that the partial demolition of the Monroe was conducted mostly in accordance with the limited permit, although in "some areas" Scoville "took some liberties."¹⁰

Jerry Sills testified that the building was vacant when he bought it for Scofield and that, upon learning of its designation as a historic landmark, he took steps to secure and preserve it. He said that, after the partial demolition in July, he erected a fence around the site and directed an employee to monitor the building from time to time. Sills denied allegations that he intentionally destroyed the building or allowed it to deteriorate.

The final witness for Scoville was Mrs. LuLee, who described how the Monroe, which she conceded was "a beautiful building," had been transformed into "a haven for all these drug addicts and prostitutes, and all kinds of illegal activities." Mrs. Lee had organized a neighborhood committee to seek the removal of the Monroe from the list of historic landmarks so that...