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WEINBERG v. BARRY

January 30, 1985

J. A. WEINBERG, JR., et al., Plaintiffs,
v.
MARION S. BARRY, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 The successive tenures of the Joint Committee and the Review Board in dealing with historic landmark preservation in the District of Columbia started with the Joint Committee -- an inter-governmental agency under the sponsorship of the Mayor of the District of Columbia and two federal agencies, the National Capital Planning Commission, see 40 U.S.C. § 71a, and the Commission on Fine Arts, see 40 U.S.C. § 104. See A & G Limited Partnership v. Joint Committee on Landmarks, 449 A.2d 291, 292 (D.C. 1982). In 1968, the Commissioner of the District of Columbia, the National Capital Planning Commission, and the Commission on Fine Arts entered into "an executive agreement authorizing the Joint Committee to act as the State Review Board of the District of Columbia in order for the District to 'qualify for participation in the federal historic preservation program instituted under the National Historic Preservation Act of 1966 [ 6 U.S.C. §§ 470 et seq. (1982) ("federal act")]. '" Id. (quoting Latimer v. Joint Committee on Landmarks, 345 A.2d 484, 485 (D.C. 1975) (footnote omitted)). This arrangement was renewed in 1972, 1974, 1978, and 1980. See id.; see also Complaint paras. 14-20; Answer para. 9.

 On December 27, 1978, the District of Columbia enacted the District of Columbia Historic Landmark and Historic District Preservation Act, D.C. Code 1981, §§ 5-1001 et seq. ("D.C. act") (1981 & 1984 Cum. Supp.), which came into effect shortly thereafter, see id. §§ 1-233(c)(1); 5-1015. The D.C. act provided that

 
"Any body which functions as the District of Columbia State Review Board pursuant to the Act of October 15, 1966 (16 U.S.C. § 470 et seq.) as of the effective date of this chapter, shall function as the Review Board pursuant to this section until a Review Board is established and its members nominated by the Mayor and confirmed by the Council of the District of Columbia pursuant to this section."

 Id. § 5-1003(a). Beginning in early 1979, thus, the Joint Committee served as professional review board not only for the purposes of the federal act, but for the implementation of the D.C. act as well. See A & G Limited Partnership v. Joint Committee on National Landmarks, supra.

 Subsequently, on May 6, 1983, the District of Columbia finally established the District of Columbia Historic Preservation Review Board ("Review Board") pursuant to D.C. Code § 5-1003(a). Complaint para. 34; Answer para. 15. On May 9, 1983, the Mayor submitted nominations for membership on the Review Board to the District of Columbia City Council, and on July 21, 1983, the City Council confirmed the Mayor's nominees. Complaint para. 34; Answer para. 15. On July 21, 1983, accordingly, landmark designation authority under the federal act and D.C. act passed to the Review Board as the successor agency to the Joint Committee, see D.C. Code § 5-1003(a), and thus it is the Review Board that has implemented the statutes within the District of Columbia since that time.

 As in many jurisdictions, buildings within the District of Columbia may generally be altered or demolished only upon application by an owner for a permit ("permit application") and approval of the permit by the appropriate D.C. agency (i.e., the District of Columbia Department of Licenses, Investigations, and Inspections, see Mayor's Order No. 78-42 (February 17, 1978) ["Department of Licenses"]). See D.C. Code § 5-426. In the absence of historic landmark designation, permits may be issued without requiring the permit applicant to make any special showing generated by history-related concerns. Landmark designation under the D.C. act, however, has the effect of requiring the owner of a designated property to persuade the Mayor of the District of Columbia -- as a prerequisite to issuance of a permit -- that alteration or demolition of the property is "necessary in the public interest" or that failure to effect the alteration or demolition would result in "unreasonable economic hardship" to the owner. D.C. Code §§ 5-1004(e), 5-1005(f).

 In addition, there are three procedural aspects of the D.C. act that are of particular relevance to this action. First, although landmark applications may be filed, under applicable regulations, only by certain specific classes of parties, those classes include any third-party organizations, such as intervenor, "which include[] among [their] purposes the promotion of historic preservation in the District of Columbia." Procedures for the Designation of Historic Landmarks and Historic Districts § 310.30, reprinted in Plaintiff's Motion for Summary Judgment, Appendix G. Second, the D.C. act provides that the mere filing of an application for landmark designation of a property ("landmark application") automatically requires that the property be treated as a landmark pending the resolution of the application. Id. § 5-1002(6)(B). Such an application, thus, automatically requires the owner of the property to make the special showing of public interest or economic hardship required by the D.C. act in order to obtain a permit for alteration or demolition of the building. Finally, the filing of a permit application for alteration or demolition of the property also allows an owner of property for which a landmark application has been filed to protect himself from protracted uncertainty as to the status of his property. Specifically, the statute provides that where a landmark application with respect to any property has been filed and is pending, and a permit application is also filed, the agency implementing the D.C. act

 
will determine within 90 days of receipt of [the permit] application. . . whether to list such property [as a historic landmark], and any property not so listed will not be considered a historic landmark. . . .

 D.C. Code § 5-1002(6)(B).

 In this statutory context, intervenor DTID, on April 6, 1981, filed an application with the Joint Committee for the designation of the exterior of the Warner Theatre as an historic landmark. On November 24, 1982, intervenor filed a second application seeking to designate as a landmark the interior portion of the building as well.

 As to DTID's November 24, 1982 application to designate the interior of the Warner Building as a landmark, no action has ever been taken either by the Joint Committee or by its successor, the Review Board. The landmark application remains pending. No permit applications have in the interim been filed to alter or demolish the ...


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