DC Pres. League v. Mayor's Agent for Historic Pres., No. 19-AA-86
| Decision Date | 27 August 2020 |
| Docket Number | No. 19-AA-86 |
| Citation | 236 A.3d 373 |
| Parties | DC PRESERVATION LEAGUE, Petitioner, v. MAYOR'S AGENT FOR HISTORIC PRESERVATION, Respondent, and Georgetown 29K Acquisition, LLC, Intervenor. |
| Court | D.C. Court of Appeals |
Nicholas H. Jackson for petitioner.
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Deputy Solicitor General, and Graham E. Phillips, Assistant Attorney General, for respondent.
R. Stanton Jones, William C. Perdue, Washington, and Samuel F. Callahan for intervenor.
James B. Wilcox, Jr. for amicus curiae Committee of 100 on the Federal City.
Richard Hinds and Stephen J. Crimmins, Washington, for amici curiae Citizens Association of Georgetown and Friends of Georgetown Waterfront Park.
Before Easterly, McLeese, and Deahl, Associate Judges.
Intervenor Georgetown 29K Acquisition, LLC (G29K) applied for approval of a proposal to demolish most of the West Heating Plant, a historic landmark that was no longer in use, in order to construct a residential building and a public park. The Mayor's Agent approved the proposed demolition and found good cause to modify historic-preservation covenants in the deed that had conveyed the property from the United States to G29K. Petitioner DC Preservation League (DCPL) challenges those rulings. We affirm.
The Plant is located on a two-acre property in the southeast part of Georgetown, adjacent to the C&O Canal and Rock Creek. Originally purchased by the National Park Service in 1938, the property later became the site of a coal-fired heating plant for the federal government. The Plant eventually ceased functioning and was decommissioned and closed to the public in 2000.
The General Services Administration (GSA) sold the Plant and the surrounding property to G29K in 2013. The deed of sale included historic-preservation covenants that (a) required that changes on the property be consistent with the Secretary of Interior's Standards for the Treatment of Historic Properties with Guidelines for Rehabilitating Historic Buildings, but (b) provided that although the covenants were binding in perpetuity, the State Historic Preservation Officer (SHPO) could, on a showing of good cause, modify or cancel some or all of the covenants.
G29K purchased the property in 2013. Before doing so, G29K conducted an environmental assessment and determined that, due to extensive water damage, any adaptive reuse of the Plant would require "essentially full demolition and reconstruction of the majority of the existing building structure." A subsequent environmental assessment revealed that the property contained numerous hazardous materials, including asbestos, lead, and mercury, which would require extensive removal of the exterior brick and interior walls.
G29K considered various uses for the structure, including a museum, artists’ lofts, and office space, but ultimately rejected them as economically infeasible. After concluding that the project would be neither insurable nor economically viable without substantial demolition, G29K developed a plan to convert the Plant into a ten-story residential condominium building and the adjacent coal yard into a one-acre public park.
In Georgetown, project proposals are reviewed by the U.S. Commission of Fine Arts, which makes recommendations to the Mayor's Agent. D.C. Code § 6-1202 (2018 Repl.). The Commission reviewed and approved G29K's plan. Because the Plant is a historic landmark, G29K also submitted its plan to the Historic Preservation Review Board (HPRB) for review. See D.C. Code § 6-1104 (2018 Repl.). The HPRB concluded that, due to the substantial demolition involved, the proposal was inconsistent with the purposes of the Historic Landmark and Historic District Protection Act, D.C. Code § 6-1101 et seq. (2018 Repl.) ("Preservation Act"). The HPRB also found that the proposed design did not comply with the historic-preservation standards incorporated in the deed's historic-preservation covenants.
G29K then applied to the Mayor's Agent for approval of the proposed demolition. The State Historic Preservation Officer (SHPO) also submitted a letter asking the Mayor's Agent to determine whether there was good cause to modify the historic-preservation covenants in the deed. The SHPO agreed to implement the Mayor's Agent's determination.
The Mayor's Agent held two days of public hearings. Numerous witnesses testified in support of G29K's plan, including amici Citizen's Association of Georgetown and Friends of Georgetown Waterfront Park. DCPL, the sole party in opposition to the plan, presented a number of witnesses. Several District residents also testified, some in favor of and some against the project. The Advisory Neighborhood Commission supported the project. See generally 10-C DCMR § 3201.2 ().
The Mayor's Agent issued a decision and order approving the proposed demolition and finding good cause to modify the historic-preservation covenants.
Our review of a decision of the Mayor's Agent is "limited and narrow." Embassy Real Estate Holdings, LLC v. District of Columbia Mayor's Agent for Historic Pres. , 944 A.2d 1036, 1050 (D.C. 2008) (internal quotation marks omitted). "We must uphold the Mayor's Agent's decision if the findings of fact are supported by substantial evidence in the record considered as a whole and the conclusions of law flow rationally from these findings." Kalorama Heights Ltd. P'ship v. District of Columbia Dep't of Consumer & Regulatory Affairs , 655 A.2d 865, 868 (D.C. 1995). When the Mayor's Agent's "decision is based on an interpretation of the statute and regulations [the Mayor's Agent] administers, that interpretation will be sustained unless shown to be unreasonable or in contravention of the language or legislative history of the statute." Id. (internal quotation marks omitted).
DCPL first challenges the Mayor's Agent's decision to issue a demolition permit. We uphold that decision.
Under the Preservation Act, the Mayor's Agent may approve the demolition of a historic landmark if the demolition is "necessary in the public interest." D.C. Code § 6-1104(a), (e). Demolition is "[n]ecessary in the public interest" if it is "necessary to allow the construction of a project of special merit." D.C. Code § 6-1102(10). A project has special merit if it provides "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 for community services." D.C. Code § 6-1102(11). To establish the necessity of demolition, an applicant must show that "all reasonable alternatives were considered." Citizen's Comm. to Save Historic Rhodes Tavern v. District of Columbia Dep't of Hous. & Cmty. Dev. , 432 A.2d 710, 718 (D.C. 1981). If the Mayor's Agent finds that demolition is necessary to a project having special merit, the Mayor's Agent must then balance that special merit against the harm to historic-preservation values that would result from the demolition. Rhodes Tavern , 432 A.2d at 715-16.
DCPL challenges the Mayor's Agent's finding that the project had special merit. "[A] proposed amenity [must] meet a high standard in order to qualify as a ‘special merit’ project, the construction of which would warrant demolition of a building of historical significance." Comm. of 100 on the Fed. City v. District of Columbia Dep't of Consumer & Regulatory Affairs , 571 A.2d 195, 200 (D.C. 1990). "[A] project's special merit [can] rest in whole or in part on a combination of features that in isolation would not necessarily rise to the level of special merit." Friends of McMillan Park v. District of Columbia Zoning Comm'n , 149 A.3d 1027, 1039 (D.C. 2016) (" FOMP I ").
The Mayor's Agent found that the project provided the following special-merit benefits: (1) "[t]he conversion of the polluted and inaccessible coal yard into a well-designed public park, provided to and maintained for the residents of the District at no cost," and connecting Rock Creek Park, the C&O Towpath, and the Georgetown Waterfront Park; (2) financial support for restoration of the C&O Canal Trail; (3) financial and project-management support for restoration of the nearby Mt. Zion Historic Cemetery; (4) monetary contributions of at least $2.8 million to entities supporting affordable housing in the District, including primarily the D.C. Housing Production Trust Fund; (5) an interpretive on-site exhibit concerning the industrial history of Georgetown; and (6) documentation of the history of the Plant, to be donated to the D.C. Public Library.
DCPL does not appear to dispute, and we therefore take as a given, that the project has at least some special merit, due to the land-planning benefits associated with the public park and the restoration of the C&O Canal trail. DCPL does, however, challenge several other aspects of the Mayor's Agent's analysis.
DCPL argues that the proposed donations to support affordable housing and the Mt. Zion Historic Cemetery are "off-site" benefits that cannot properly be considered special-merit benefits. We disagree. As previously noted, to qualify as necessary in the public interest, a project must be "of special merit." D.C. Code § 6-1102(10). The Preservation Act defines "special merit" to include "social or other benefits having a high priority for community services." D.C. Code § 6-1102(11). Those provisions do not appear to require a physical nexus between the site of the demolition and the "location" of all of a project's special-merit benefits (even if we were to assume that it would be generally feasible to determine the "location" of special-merit benefits). Nor does our case law support such a...
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