grounds. Cf. Telecommunications Research and Action Center v. FCC, 750 F.2d 70, slip op. 17-20 (D.C. Cir. 1984); Southern National Bank v. Austin, 582 S.W.2d 229, 238 - 39 (Tex.Civ.App. 1979). Indeed, defendants themselves argue that the imposition of landmark status immediately upon the filing of a landmark application "cannot be held unconstitutional" in part because the 90-day decision mechanism "provides building owners with a timely opportunity to contest the designation." Defendant's Opposition to Plaintiff's Motion at 50.
In this case, intervenor filed a landmark application with respect to the Warner Building exterior on April 6, 1981. Plaintiff, in turn, filed -- on November 26, 1982 -- a permit application with the D.C. Department of Licenses to modify the Warner Building's doorway. The Joint Committee's decision to designate the exterior as a landmark, however, was not promulgated until May 18, 1983 -- far more than 90 days after the permit application was filed.
Defendants claim that the 90 day period was never triggered in this case because -- through administrative oversight -- the permit application filed with the appropriate D.C. licensing agency was allegedly never transmitted to or "received" by the Joint Committee.
Id. at 54. Defendants themselves admit, however, that the mechanism by which owners can force a decision on a landmark application within 90 days provides property owners with an important protection, the absence of which could well undermine the constitutional validity of the Act. See id. at 44, 50. Defendants, thus, cannot be heard to argue that this protective feature of the statutory scheme can be eviscerated by agency mismanagement for which defendants are responsible.
Defendants also contend essentially that even if the 90 day period was triggered, it was tolled by the fact that the permit application (which addressed at least part of the exterior, namely, the doorway) was in fact granted -- although without review by the Joint Committee or the Mayor as required by the D.C. act -- by the Department of Licenses on December 30, 1982. Again, however, defendants cannot be heard to argue that this important statutory device for accelerating landmark decisions can be short-circuited by the defendant's deliberate or inadvertant departure from the statutory scheme. The fact that the permit was actually granted might moot the case if the only interest at issue were the doorway. But the landmark designation overhangs the entire exterior. The permit process is the only statutory avenue available to an owner within the provisions of the D.C. act to precipitate prompt consideration of a landmark application and review of any decision about it. The failure of the Joint Committee in this case to address the issue within 90 days clears the way for routine processing of future permit applications with respect to the exterior, insofar as they might be affected by the April 6, 1981 landmark application.
Thus, it is apparent that the Joint Committee's designation of the exterior of the plaintiffs' property was untimely and unlawful. Unless and until another landmark application with respect to the Warner Building exterior is filed, any future applications for permits to alter or demolish the exterior of the Warner Building may be filed with, considered by, and acted on by the Department of Licenses without any referral to the Review Board or the Office of the Mayor for consideration of the public interest or degree of economic hardship. As suggested, however, this ruling does not preclude further appropriate action by the Review Board pursuant to the D.C. act on any subsequent or renewed landmark application with respect to the exterior of the Warner Building. The parties have not addressed, and therefore this ruling does not determine, the validity of any further landmark application or designation, or its effect upon some future permit application.
In view of this disposition, there is no occasion to address the several other issues raised by plaintiffs with respect to the exterior of the building.
II. Interior of the Warner Building.
Plaintiffs' challenge to the present effect of the D.C. act on the status of the interior of the building comes before the Court in a different posture, in that plaintiffs have not filed any permit application triggering the statutory 90-day review cycle. Nor has the Review Board or its predecessor issued any decision on intervenor's pending landmark application with respect to the interior. Instead, DTID's November 24, 1982 application to designate the interior of the Warner Building as a landmark remains simply pending before the Review Board. Plaintiffs complain merely that the pending landmark application has had the effect of subjecting the interior of the Warner Building to the provisions of the D.C. Act pending resolution of the application.
The burden imposed by the temporary designation of the interior of the Warner Building while DTID's landmark application remains pending is not negligible.
Nonetheless, this interim burden does not rise to constitutional proportions, and the process by which it was imposed is similarly free of constitutional defect. First, the automatic imposition of landmark status on the interior of the Warner Theater upon the filing of the November 24, 1982 landmark application by DTID does not constitute an impermissible delegation. A third-party landmark application merely places the property in question on the Review Board's (or, previously, the Joint Committee's) docket. The interim designation of the building pending the Review Board's actual decision on the landmark application is effected on the authority of the Board, albeit at the instance of the landmark applicant. If the Board thereafter fails to act within the requisite 90 days after a permit application is filed, there would be no interference with any destruction or modification pursuant to permit. Thus, although third-parties such as DTID may choose to initiate the process, it is the Review Board that is implementing the D.C. act. As the Supreme Court ruled in New Motor Vehicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 108-09, 58 L. Ed. 2d 361, 99 S. Ct. 403 (1978): "an otherwise valid regulation is not rendered invalid simply because those who the regulation is designed to safeguard may elect to forego its protection." Conversely, filing an application merely invokes the temporary, predecisional protection afforded to a qualified applicant by operation of law. Compare Grendel's Den, Inc. v. Goodwin, 495 F. Supp. 761, 765 & n.8 (D. Mass. 1980) (permanent effect of third-party application invalid), aff'd on rehearing, 662 F.2d 102 (1981) (en banc), aff'd sub nom, Larkin v. Grendel's Den, Inc., 459 U.S. 116, 74 L. Ed. 2d 297, 103 S. Ct. 505 (1982).
Second, the imposition of landmark status for the period until the Review Board acts on a pending landmark application (or until 90 days passes without a decision following the filing of a permit application) does not violate plaintiffs' due process rights. As described earlier, the 90-day decision mechanism allows plaintiffs themselves to trigger a prompt hearing (pursuant to applicable regulations) and a timely and reviewable final decision on the landmark application. On this record, the economic interests at stake do not outweigh the public purpose of the landmark restrictions during the temporary designation period sufficiently to require a prior hearing. It is well established that even Social Security disability benefits may be cut off before a hearing, without violating due process principles. Mathews v. Eldridge, 424 U.S. 319, 340-50, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). That precedent makes it difficult to accept plaintiffs' contention that temporary designation pending a hearing and designation decision that is not unreasonably delayed
violates constitutional due process principles.
Third, the application of the D.C. act during the period prior to a final designation decision by the Review Board does not constitute an unconstitutional taking any more than would a temporary (not to mention a permanent) zoning change. See Agins v. Tiburon, 447 U.S. 255, 262-63 & n.9, 65 L. Ed. 2d 106, 100 S. Ct. 2138 (1980). The D.C. act itself articulates the strong public interest in historically significant property. At the same time, the burden imposed by the D.C. act during the pendency of a landmark application is susceptible to the owner's own control, in that its duration can be limited as described above through the filing of a permit application by the owner himself. Plaintiffs themselves, thus, have the power to expedite consideration of the Warner Building interior landmark application, and can in this fashion limit the duration of the burden imposed by the interim landmark designation.
Plaintiffs report, moreover, that the theater interior of the Warner Building is presently being leased out commercially, Plaintiff's Statement of Material Facts para. 96, which indicates that the property during this interim does have some economic use, if possibly not the most lucrative one. See 900 G Street Associates v. Department of Housing and Urban Development, 430 A.2d 1387, 1390-91 (D.C. 1981). Having filed no permit application, the owners of the Warner Building cannot plausibly contend that the interim landmark designation of the building's interior has unconstitutionally deprived them of all viable economic uses of the property during the interim period. See id; Agins v. Tiburon, supra, 447 U.S. at 262-63 & n.9. Accordingly, with respect to the interim designation of the Warner Building interior, no unconstitutional taking can be found. See generally id.; Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 71 L. Ed. 303, 47 S. Ct. 114 (1926).
In reaching this conclusion the Court has not overlooked the possibility that plaintiffs' purpose is to clear the landmark designation solely to enhance the merchantability of the property, and that they have not filed a permit application because they have no interest in demolishing or remodeling the building on their own account. As noted, the permit process is the only means provided by the D.C. act itself for precipitating the Review Board's action on a landmark application. But even in the absence of a permit application, the failure by the Joint Committee and the Review Board to reach any determination with respect to the interior landmark application -- despite the passage of over two years since November 24, 1982, when the interior landmark application was filed -- raises serious questions about the reasonableness of the pace of the designation process. The D.C. Administrative Procedure Act, D.C. Code §§ 1-1501 et seq., which governs actions by District of Columbia agencies, generally parallels the federal Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., and apparently would apply to actions taken by the Review Board, see A & G Limited Partnership v. Joint Committee on Landmarks, supra, 449 A.2d at 293. Our Court of Appeals has recently announced the specific criteria which, under federal law, will govern judicial intervention where an agency has unreasonably delayed a decision to the detriment of person or property. See Telecommunications Research and Action Center v. FCC, supra. Under such standards, plaintiffs here might well be able to obtain an order declaring that the Review Board's handling of the interior landmark application has been "unreasonably delayed" as a matter of administrative law, compare 5 U.S.C. § 706(1), with D.C. Code § 1-1510(a)(2), and requiring the Review Board to reach a final decision promptly. Cf. Telecommunications Research and Action Center, supra. However, the plaintiffs have conspicuously failed to address these criteria here or ask for judicial relief tailored to the delay.
Plaintiffs are therefore not entitled to such relief under this Court's jurisdiction. Today's disposition of the matter does not, on the other hand, preclude or prejudice plaintiffs' access to the courts of the District of Columbia for relief under the D.C. Administrative Procedure Act, applying principles announced in Telecommunications.
Should the plaintiffs file a permit application with respect to the interior, and should the Review Board subsequently grant the pending landmark application with respect to the interior or delay action by more than ninety days, plaintiffs would then be free to seek judicial intervention (as well as review before the Mayor). Until such time as the Review Board has passed on the pending interior landmark application -- either at their own initiative or upon the plaintiffs' filing of a permit application -- any further efforts by plaintiffs to challenge the application of the D.C. act to the interior of the Warner Building will be premature.
Meanwhile, as to those aspects of the complaint challenging the pending application to designate the interior of the Warner Theater as an historical landmark, plaintiffs' Motion for Summary Judgment should be denied and defendants' Cross-Motion for Summary Judgment should be granted.
* * *
With respect to the entry of a final order on the pending motions, the parties should -- on or before February 7, 1985 -- exchange and then submit for the Court's consideration proposed orders consistent with the rulings set out in this memorandum. In order to maintain the status quo until defendants and intervenor have an opportunity to determine their future course of action, in light of the public interest in this matter, and after balancing the relative harm to the parties from maintenance of the status quo, each party's proposed order shall provide for a stay of its effective date for a period during which any of the parties may appeal the Order or take any appropriate administrative action with reference to this matter. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841 (D.C. Cir. 1977). Pending filing of the proposed orders and entry of a final Order by the Court, the parties shall maintain the status quo, particularly with respect to any alteration or demolition of the Warner Building. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 604 F. Supp.]
It is this 30th day of January, 1985, hereby
ORDERED: that, for reasons set forth in the accompanying Memorandum, the motion by Don't Tear It Down, Inc. to intervene pursuant to Fed. R. Civ. P. 24(b) should be, and is hereby, GRANTED; and it is further
ORDERED: that, in accordance with directions set forth in the accompanying memorandum, the parties shall exchange and submit proposed orders on the cross-motions for summary judgment on or before February 7, 1985; and it is further
ORDERED: that, pending filing of the proposed orders and entry of a final Order on the cross-motions for summary judgment, the parties shall maintain the status quo with respect to the Warner Building, and particularly with respect to any alteration or demolition of the building.