Donnelly Assoc. v. D.C. Historic Preservation

• Decision Date: 14 January 1987
• Docket Number: No. 84-1594.,84-1594.
• Parties: DONNELLY ASSOCIATES, Limited Partnership, Petitioner, v. DISTRICT OF COLUMBIA HISTORIC PRESERVATION REVIEW BOARD, Respondent, District of Columbia Preservation League, Intervenor.
• Court: D.C. Court of Appeals

Page 270

520 A.2d 270

DONNELLY ASSOCIATES, Limited Partnership, Petitioner, v. DISTRICT OF COLUMBIA HISTORIC PRESERVATION REVIEW BOARD, Respondent District of Columbia Preservation League, Intervenor.

No. 84-1594.

District of Columbia Court of Appeals.

Argued October 31, 1985.

Decided January 14, 1987.

Whayne S. Quin, with whom C. Francis Murphy, Louis P. Robbins, and Maureen Ellen Dwyer, Washington, D.C., were on brief, for petitioner.

Richard B. Nettler, Asst. Corp. Counsel, with whom John N. Suda, Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief, for respondent.

William K. Rawson, with whom James F. Rogers, Washington, D.C., was on brief for intervenor.

Before PRYOR, Chief Judge, BELSON, Associate Judge, and BURGESS, Associate Judge, Superior Court of the District of Columbia.¹

BURGESS, Associate Judge:

In this petition for review, petitioner Donnelly Associates Limited Partnership ("Donnelly" or "Petitioner") challenges a decision of the District of Columbia Historic Preservation Review Board ("the Review Board") to designate properties owned by Donnelly as historic landmarks. We conclude that we lack jurisdiction to determine the issues Donnelly raises and therefore dismiss the petition.

I.

A.

The District of Columbia enacted the District of Columbia Historic Landmark and Historic District Preservation Act, D.C. Code §§ 5-1001 et seq. (1981 and 1985 Supp.) ("The Act") for the "protection, enhancement and perpetuation of properties of historical, cultural and esthetic merit." D.C.Code § 5-1001(a) (1985 Supp.). In enacting our historic preservation statute, the District of Columbia followed the 50 states and more than 500 municipalities that have passed similar statutes for the same purpose. Citizens Committee To Save Historic Rhodes Tavern v. District of Columbia Department of Housing and Community Development, 432 A.2d 710, 712 (D.C.), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981). The Review Board, established in 1983 to succeed the Joint Committee on Landmarks,² administers the Act. D.C.Code § 5-1003.

Among its functions, the Review Board decides whether or not to designate property as an historic landmark. Once a property is designated, its owner may not demolish or alter it unless he obtains a permit from the Mayor³ to do so. The Mayor cannot issue the permit unless he finds, "after a public hearing," that alteration or demolition is "necessary in the public interest" or that failure to grant the requested permit will result in "unreasonable economic hardship" to the owner. D.C.Code §§ 5-1004(c), (e), 5-1005(c), (f). The Mayor must, with limited exceptions, refer all permit applications to the Review Board and make a decision within 120 days after the Board receives that referral. D.C.Code §§ 5-1004(c), 5-1005(c). The public hearing that must precede the Mayor's finding is conducted "in accordance with the provisions of the D.C. Administrative Procedure Act" ("D.C.A.P.A."), and is appealable to this Court. D.C.Code § 5-1012(b).

If an application has been filed with the Review Board to have property designated as an historic landmark,⁴ the owner of the property may not alter or demolish that property pending a decision by the Review Board. The Review Board has ninety days from "receipt" of the demolition or alteration permit to decide whether or not to list the property as an historic landmark. D.C. Code § 5-1002(6)(B). The Act provides that "any property not so listed will not be considered an historic landmark within the terms of this chapter." Id.⁵

B.

The origin of this petition is a contract executed on October 28, 1983, in which Donnelly agreed to buy properties located at 2521 and 2523 K Street, N.W. from the estate of Emily B. Cooper for $400,000. After demolishing the buildings, he intended to build a high-rise condominium on the site. The contract contained a contingency clause giving Donnelly thirty days to study the economic feasibility of the purchase and to obtain a demolition permit. The parties later extended the study period first to December 15, and then to January 15, 1984.

Meanwhile, on December 9, 1983, the District of Columbia Preservation League ("The League"), filed an application with the Review Board for designation of the two K street properties as historic landmarks. The application was submitted as a result of a survey of the Foggy Bottom area that indicated to the League that the K street properties were the oldest extant homes in that area and represented distinctive examples of "intact vernacular architecture from Washington's early years." The Review Board did not notify the Cooper estate of the application. Donnelly did not learn of the application either.

On December 21, 1983, a demolition contractor hired by Donnelly, but purporting to act on behalf of the Cooper estate, filed an application for a demolition permit with the permit branch of the D.C. Department of Licenses and Inspections ("Department of Licenses"). See D.C.Code § 5-426. The permit branch did not know of the League's designation application and began processing the demolition permit. On January 3, 1984, the permit branch received notice of the designation application but did not notify the Cooper estate. After the League filed the application, neither Donnelly nor his agent inquired at the Review Board or the permit branch whether a designation application had been filed.

By January 15, Donnelly had not received a demolition permit. Still unaware of the designation application, and believing the demolition permit was shortly to be issued, he did not seek a further extension of the contingency clause. On January 20, Donnelly's demolition contractor learned about the designation application when he went to the permit branch to pick up the demolition permit and was informed that it could not be issued. Apparently feeling bound by the contract with Cooper, Donnelly closed the transaction sometime in February.

Notice of the designation application first appeared in the D.C. Register on February 10, 1984. Donnelly did not receive individual notice of that application until March, 1984, when the Review Board, responding to his inquiries, wrote him that the designation application was on file. When informed by the Review Board that it believed the ninety-day period within which it must act on the application would be triggered only upon Donnelly's filing a new application for a demolition permit, he filed one on July 31, 1984.

The Review Board held a hearing on the designation application on October 17, 1984.⁶ At that hearing, petitioner's counsel objected to the Review Board's jurisdiction on the ground that the Board had failed to act within the required ninety-day period after the first application had been filed. Counsel also objected to the Board's failure to adopt and duly publish final rules of procedure; its failure to give notice of the designation application before Donnelly completed the purchase; and its refusal to permit cross-examination of witnesses. After hearing extensive testimony on these issues, the Review Board overruled the objections and set a hearing on the merits of the proposed designation for October 24, 1984.

At the October 24 hearing, the Review Board heard testimony on whether the properties possessed historic value. Over Donnelly's objection, it again prohibited cross-examination of witnesses, although it permitted Donnelly to put questions to opposition witnesses through the chairman. After hearing, the Review Board explicitly departed from its normal practice and decided to vote on the issue rather than deferring the case for consideration. It voted to adopt the staff "recommendation" that the properties be designated⁷ an historic landmark and announced the vote at the close of the hearing.⁸ It thereafter mailed a written decision to Donnelly, which he received on November 12, 1984.⁹ He filed a petition for appeal within fifteen days thereafter.

In this petition, Donnelly does not question the Review Board's determination that the properties possess historic value, but renews his jurisdictional and procedural objections. Respondent and intervenor initially pose two objections to our jurisdiction. Since we find one of these objections convincing, we cannot address the merits of Donnelly's petition.

II.

Respondent and intervenor argue first that Donnelly failed to file a petition for review within fifteen days after receiving "formal notice" of the Review Board's order as required by D.C.App.R. 15(b).¹⁰ They pinpoint October 24, 1984, the day the Review Board orally announced its vote to designate the properties, as the day Donnelly received "formal" notice. Petitioner, on the other hand, argues that he only received "formal" notice on November 12, 1984, the day he received the Review Board's written decision.

The parties have not cited and we have not found any decision dispositive of this issue. Glenwood Cemetery v. District of Columbia Zoning Commission, 448 A.2d 241 (D.C. 1982), cited by both sides, is not determinative. It held that receipt of notice of final decision by registered mail was receipt of "formal notice," even though the agency's rules provided that the decision would not be "final and effective" until the ministerial act of publication in the D.C. Register. Id. at 242. Glenwood did not address the question we face of whether an agency decision rendered orally in the presence of the parties constitutes "formal notice." Nor is Valentine v. Real Estate Commission, 163 A.2d 554 (D.C. 1960), controlling. Petitioner in that case was untimely because she filed a petition sixteen days from having received "formal notice" of a decision after a public hearing. The Court, however, never identified what that "formal notice" consisted of and whether or not it occurred at the public hearing.

In the absence of any controlling precedent or any definition of "formal notice"...