Don't Tear It down, Inc. v. District of Columbia

• Decision Date: 06 November 1978
• Docket Number: No. 12686.,12686.
• Citation: 395 A.2d 388
• Parties: DON'T TEAR IT DOWN, INC., Appellant, v. DISTRICT OF COLUMBIA and Howard P. Foley Co., Appellees.
• Court: D.C. Court of Appeals

Page 388

395 A.2d 388

DON'T TEAR IT DOWN, INC., Appellant, v. DISTRICT OF COLUMBIA and Howard P. Foley Co., Appellees.

No. 12686.

District of Columbia Court of Appeals.

Argued September 13, 1978.

Decided November 6, 1978.

David Z. Sadoff, Washington, D. C., with whom David Bonderman, Washington, D. C., was on the brief, for appellant.

Dennis McDaniel, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel when the brief was filed, and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellee District of Columbia.

William L. Fallon, Washington, D. C., with whom William J. Butler, Jr., Frank M. Northam, and Mitchell W. Dale, Washington, D. C., were on the brief, for appellee Howard P. Foley.

Before GALLAGHER, HARRIS, and MACK, Associate Judges.

HARRIS, Associate Judge:

Appellant Don't Tear It Down, Inc., sought the issuance of a preliminary injunction directed against appellees to delay or prevent the destruction of a historic landmark.¹ The trial court denied the motion for a preliminary injunction, but thereafter did grant a motion to enjoin appellees pending this appeal. We vacate the denial of the motion for a preliminary injunction and remand the case for further proceedings.

I

In October of 1976, Howard P. Foley Company (Foley) applied to the District of Columbia government for a permit to demolish a building which it owns at 2030 I Street, N.W. The structure in question is a former residence which has been designated a historic landmark on the inventory of historic sites of the District.² As such, it is to be afforded protection under D. C. Regulation 73-25 (Title 5A-1, § 109.10, D. C. Building Code), which provides for delay in the demolition of a historic landmark to give an opportunity to interested persons to "negotiate" in an effort to preserve the structure.³ On December 17, 1976, in compliance with the regulation, the Mayor's designated agent ordered a delay of the demolition for a period of 180 days. Copies of that order were mailed to appellant and other interested parties.

On June 14, 1977, which was the 179th day of the delay interval, a public meeting was held for the purpose of advancing and discussing potential means of saving the building. Prior to that time, for reasons which are not apparent from the record, no exchange of ideas between the city and the interested parties had taken place. As a result, no substantive alternatives to demolition were presented, and all of the parties agreed voluntarily to a 30-day extension to permit further negotiations. On July 8 (the 24th day of this second period of delay), the District forwarded to Foley certain information regarding tax incentives and government grants-in-aid available to owners of historic sites. Apparently these and other alternatives were discussed at a second public meeting on July 12.⁴ Once again no headway was made.⁵

Subsequently, a demolition permit was issued to Foley. Demolition was temporarily restrained on motion by appellant, and the permit was revoked because of certain technical misrepresentations in the original application. On September 12, 1977, appellant was informed by the District that Foley had applied for a new permit which would be granted if it were found to be accurate. In response, appellant once again sought and obtained a temporary restraining order barring issuance of the demolition permit.

At the hearing to extend the restraining order by a preliminary injunction, appellant made two contentions to the trial court. First, appellant argued that although some negotiations had occurred between the parties, they were not "meaningful" negotiations. Thus, it was contended, Regulation 73-25 had not been complied with.⁶ Second, it was urged that the District had no authority to issue the "new" permit to Foley without again referring the entire matter back to the State Historic Preservation Officer for a wholly new Regulation 73-25 procedure. Appellant also asserted that the normal prerequisites for a preliminary injunction had been met. No testimony or affidavits were presented to the trial court.

Based on arguments and the extremely limited record before it, the court denied the preliminary injunction, stating in part:

[T]he plaintiff's likelihood to succeed in this case is without merit. Second, that the plaintiff will not suffer any irreparable injury; third, that the defendant Foley Company will suffer irreparable injury, and the public interest will not be adversely affected by denying the motion.

Additionally, the court found that the negotiations which had taken place were "meaningful."

II

We have noted that in deciding whether to grant a preliminary injunction, the trial court must be satisfied that the moving party (who has the dual burdens of proof and persuasion) has demonstrated: (1) that there is a substantial likelihood he will prevail on the merits; (2) that he is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him from the denial of the injunction than will result to the defendant from its grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order. [Wieck v. Sterenbuch, D.C.App., 350 A.2d 384, 387 (1976) (footnote omitted).]

Further, we have pointed out that our role on review is not to resolve the merits of the underlying dispute between the litigants. Id., at 387. See A Quaker Action Group v. Hickel, 137 U.S.App.D.C. 176, 180, 421 F.2d 1111, 1115 (1969). Rather, we are to

(1) [examine] the trial court's findings and conclusions to see if they are sufficiently supported by the record; (2) [assure] that the trial court's analysis reflects a resolution of all the issues which necessarily underlie the issuance of an injunction; and (3) [inquire] into any other claims of an abuse of discretion by the trial court. [Wieck v. Sterenbuch, supra, at 387.]

However, where the action of the trial court turns on a question of law or statutory interpretation, we may reach the merits of the controversy. District Unemployment Compensation Board v. Security Storage Co., D.C.App., 365 A.2d 785, 787 (1976), cert. denied, 431 U.S. 939, 97 S.Ct. 2651, 53 L.Ed.2d 256 (1977). See Delaware & Hudson Railway v. United Transportation Union, 146 U.S.App.D.C. 142, 159, 450 F.2d 603, 620 (1971). Cf. Perry v. Perry, 88 U.S.App. D.C. 337, 338-39, 190 F.2d 601, 602-03 (1951) (court may ignore trial judge's findings where evidence is documentary or deals with undisputed facts).

The foregoing requirements and standards of review, however, are predicated upon the existence of a proper record from the trial court. In granting or denying a motion for a preliminary injunction, findings Jf fact and conclusions of law are required by Super.Ct.Civ.R. 52(a).⁷ See Mayo v. Lakeland Highlands Canning Co., 309 U.S. 310, 316, 60 S.Ct. 517, 84 L.Ed. 774 (1940); First-Citizens Bank & Trust Co. v. Camp, 432 F.2d 481, 483-84 (4th Cir. 1970); C. Wright, Law of Federal Courts § 96 at 429 (2d ed. 1970). Without them, any ruling on our part as to the trial court's decision would be an exercise in speculation. In an analogous situation under Super.Ct. Civ.R. 41(b), the lack of sufficient findings has on several occasions precluded us from undertaking further review.⁸ See Keefer v. Keefer and Johnson, Inc., D.C.App., 361 A.2d 172, 176 (1976); Warner Corp. v. Magazine Realty Co., 255 A.2d 479, 481 (1969).

Although findings are not required when there is no factual dispute, First-Citizens Bank & Trust Co. v. Camp, supra, at 484; Urbain v. Knapp Brothers Manufacturing Co., 217 F.2d 810, 816 (6th Cir. 1954), cert. denied, 349 U.S. 930, 75 S.Ct. 772, 99 L.Ed. 1260 (1955), or where the record clearly reflects the grounds of the trial court's decision, Warner Corp. v. Magazine Realty Co., supra, at 481 n. 4; Leighton v. One William Street Fund, Inc., 343 F.2d 565, 567 (2d Cir. 1965), neither of these exceptions applies in this instance. There are several disputed factual issues, which may be framed in terms of the prerequisites for injunctive relief: How was the balance of harm to the plaintiff against harm to the defendant struck? It appears, and indeed Foley acknowledges, that appellant would suffer both irreparable harm and harm to a greater extent than Foley, since once the permit is issued the building will be razed. The record does not indicate that Foley made any specific allegation of irreparable harm, and, as noted, affidavits or testimony on this subject were not even tendered to the trial court.⁹ There is a similar paucity of information as to how the interests of the public would be affected by demolishing a historic structure. (Nonetheless, of course, the building is owned by Foley; the reouired negotiations are intended only to permit the exploration of alternatives to demolition.) Finally, the facts are sketchy concerning the likelihood of appellant's succeeding on the merits. It is true that an affidavit describing the chronology of negotiations was...