Don't Tear It down, Inc. v. D. C. Department of Housing and Community Development
| Decision Date | 06 March 1981 |
| Docket Number | No. 80-883.,80-883. |
| Citation | 428 A.2d 369 |
| Parties | DON'T TEAR IT DOWN, INC., et al., Petitioners, v. D. C. DEPARTMENT OF HOUSING AND COMMUNITY DEVELOPMENT, Respondent, Potomac Electric Power Company, Intervenor. |
| Court | D.C. Court of Appeals |
Richard B. Nettler, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington D C., were on the memorandum in lieu of a brief, for respondent. David P. Sutton, Asst. Corp. Counsel, Washington, D. C., also entered an appearance for respondent.
Whayne S. Quin, Washington, D. C., with whom Carolyn J. Hamm, Washington, D. C., was on the brief, for intervenor.
Before MACK, FERREN and PRYOR, Associate Judges.
Petitioners, Don't Tear It Down, Inc., and Georgetown Citizen's Association1 seek review of an order of the Mayor's agent for the District of Columbia Historic Landmark and Historic District Protection Act of 1978, D.C. Code 1980 Supp., §§ 5-821-835, authorizing the issuance of a demolition permit sought by PEPCO ("the applicant") to demolish buildings located on PEPCO's Georgetown property.
Petitioners advance several arguments for reversal. Among them, petitioners challenge the sufficiency of the findings of fact and conclusions of law, as well as the agent's construction and application of the Historic Landmark and Historic District Protection Act of 1978, D.C. Code 1980 Supp., §§ 5-821-835.
Intervenor raises one jurisdictional challenge which it raised at hearing, namely, that the petition was not properly before the Joint Committee on Landmarks for review.
For the reasons stated below, we reverse and remand in part, and affirm in part.
This dispute concerns the proposed demolition of two nineteenth century buildings owned by PEPCO — The Conduit Shop, built in 1888, and the North building, built in 1899. Both buildings are a part of PEPCO's Georgetown Substation facility located at 33rd and K Streets, N.W., in the Georgetown Historic District. The North Building, designed for power production, is now used to house part of the substation facility. The Conduit Shop was originally used as an architectural iron works and later a repair shop, but has not been in use since 1979.
PEPCO desires to replace the present Georgetown Substation facility, which has reached the end of its useful service life, with a new more safe and efficient substation. To that end, PEPCO planned to demolish the North Building and the Conduit Shop,2 build a new substation on the southeast quadrant of the lot, on the site of the Conduit Shop, and a pedestrian path across the area where the North building is located.
PEPCO requested a permit to demolish the buildings. Because of its location in the Georgetown Historic District, PEPCO's application was governed by the requirements of the Historic Landmark and Historic District Protection Act of 1978, D.C. Code 1980 Supp., § 5-824, and the Old Georgetown Act, D.C. Code 1973, § 5-802, which respectively provide in pertinent part:
D.C. Code 1980 Supp., § 5-824. Demolitions.
(a) Before the Mayor may issue a permit to demolish an historic landmark or a building or structure in an historic district, the Mayor shall review the permit application in accordance with this section and place notice of the application in the District of Columbia Register.
(b) Prior to making the finding required by subsection (e) of this section, the Mayor may refer the application to the Historic Preservation Review Board for a recommendation, but shall so refer all applications that are not subject to review by the Commission of Fine Arts under the Old Georgetown Act (D.C. Code § 5-801 et seq.) The Mayor shall consider any recommendation by the Review Board or by the Commission of Fine Arts pursuant to such referral.
(c) Within one hundred and twenty (120) days after the Review Board receives the referral, the Mayor shall after a public hearing, make the finding required by subsection (e) of this section: Provided, that the Mayor may make such finding without a public hearing in the case of a building or structure in an historic district or on the site of an historic landmark if the Review Board has advised in its recommendation that the building or structure does not contribute to the historic district or the historic landmark.
(d) If the Review Board recommends against granting the permit, it shall promptly notify the applicant in writing of its recommendation and the reasons therefore.
(e) No permit shall be issued unless the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in unreasonable economic hardship to the owner.
(f) The owner shall submit at the hearing such information as is relevant and necessary to support his application.
D.C. Code 1973, § 5-802. Restrictions imposed on alteration of buildings.
In order to promote the general welfare and to preserve and protect the places and areas of historic interest, exterior architectural features and examples of the type of architecture used in the National Capital in its initial years, the Commissioner of the District of Columbia, before issuing any permit for the construction, alteration, reconstruction, or razing of any building within said Georgetown district described in section 5-801 shall refer the plans to the National Commission of Fine Arts for a report as to the exterior architectural features, height, appearance, color and texture of the materials of exterior construction which is subject to public view from a public highway. The National Commission of Fine Arts shall report promptly to said Commissioner of the District of Columbia its recommendations, including such changes, if any, as in the judgment of the Commission are necessary and desirable to preserve the historic value of said Georgetown district. The said Commissioner shall take such actions as in his judgment are right and proper in the circumstances. Provided, That, if the said Commission of Fine Arts fails to submit a report on such plans within forty-five days, its approval thereof shall be assumed and a permit may be issued.
Pursuant to the above Acts, PEPCO's application was referred to the Commission of Fine Arts (CFA) for review. By letter dated March 20, 1980, the CFA made the following recommendation:
Issue permit for demolition on site as proposed: note that south and east walls of existing conduit building at corner of 33rd and K Streets, N.W., will be stabilized, retained and restored as a part of the new construction on the site. Submit designs for new construction as ready with understanding that conceptual exterior design sketches have been viewed and considered out of character with historic district.
PEPCO's application was also submitted for review to the Joint Committee on Landmarks of the National Capital (JCL), which serves as the Historic Preservation Review Board. See D.C. Code 1980 Supp., § 5-823(a). On April 17, 1980, the JCL recommended that the demolition permit not be granted:
. . . because the building contributes to the character of the Georgetown Historic District and therefore its demolition would be inconsistent with the purposes of the Act as set forth in Section 2(b).
As a result of the JCL recommendation to deny the permit, PEPCO was subsequently granted a public hearing before the Mayor's agent, pursuant to the Act. The petitioners filed pleadings and appeared as Parties in Opposition.
The Historic Landmark and Historic District Protection Act of 1978, D.C. Code 1980 Supp., §§ 5-821-835 (hereinafter the Act), was enacted in an attempt to provide protection to the historic landmarks in the District of Columbia. See D.C. Code 1980 Supp., § 5-821. Generally, the Act prohibits the issuance of a demolition permit for buildings within a historic district. There are, however, three circumstances when a demolition permit for such buildings may be issued. A permit may issue where the Mayor's agent finds:
(i) a building located in a historic district does not contribute to the character of the district; or
(ii) demolition is necessary to allow the construction of a project of special merit, or
(iii) failure to issue the demolition permit will result in a taking of the owner's property without just compensation.
PEPCO proceeded on all three theories at the hearing, and evidence was introduced on each point. However, the Mayor's agent did not reach the issues of "contribution to the character of the historic district," or "unreasonable economic hardship" because she found that the project was "necessary" to allow the construction of a project of special merit. As the Mayor's agent limited her findings and conclusions to the issue of necessity, we limit our review of the evidence to the evidence of record on this point.
A four day public hearing was conducted during the course of which seventeen witnesses testified in support of or against demolition, and fifty-four exhibits were admitted into evidence. All parties agreed that a replacement facility was needed and that the substation facility is a project of special merit.3 The parties took strongly different positions to whether demolition was necessary to allow construction of the project of special merit.
On the issue of the necessity of demolishing the present structures, applicant's evidence established that before deciding to demolish the present structure and build a replacement facility, applicant conducted an engineering study.4 The following alternatives emerged as the result of the study:
(1) DO NOTHING — This option was rejected as being inconsistent with PEPCO's obligation as a public utility to provide reliable electric service to all of its customers, and safe equipment for its operating personnel....
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