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WEINBERG v. BARRY

March 14, 1986

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



The opinion of the court was delivered by: OBERDORFER

OBERDORFER, U.S.D.J.

 MEMORANDUM

 I.

 Plaintiffs in this action are trustees for the beneficial owners of a building in downtown Washington, D.C., known as the Warner Building, which is currently maintained as a combination theater and office building. Defendants are the Mayor of the District of Columbia, the Joint Committee on Landmarks of the National Capital (Joint Committee), and the District of Columbia Historic Preservation Review Board (Review Board). Intervenor is the D.C. Preservation League, a non-profit corporation dedicated to the preservation of District of Columbia landmarks.

 The entire background of this action is set out in the Memorandum (Mem.) filed by the Court on January 30, 1985. It will thus not be fully reiterated here. In short, this action centers around attempts by defendants and intervenor to designate both the interior and the exterior of the Warner Building as historic landmarks. Plaintiffs contest the designation of their building because of the significant burdens placed on them by the designation. Whereas owners of all property in the District are required to apply for, and obtain, a permit to effect any change on the property, owners of property designated as an historic landmark must show that their proposed change is "necessary in the public interest" or that failure to effect the alteration would result in "unreasonable economic hardship" to the owner. D.C. Code §§ 5-1004(e), 5-1005(f).

 Defendants, the Joint Committee and the Review Board, are entities which have successively been responsible for implementing the District of Columbia Historic Landmark and Historic District Preservation Act, D.C. Code §§ 5-1001 - 1015 (1981) (D.C. Act). On December 27, 1978, the District of Columbia enacted the D.C. Act, which came into effect shortly thereafter. The D.C. Act provides 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.

 D.C. Code § 5-1003(a). Pursuant to this section, the Joint Committee served as Review Board until the Review Board contemplated by the D.C. Act was finally established on May 6, 1983.

 Under the D.C. Act, the members of the Review Board are nominated by the Mayor and confirmed by the City Council. D.C. Code § 5-1003(a). The members are compensated for their services, are subject to D.C. conflict of interest and financial disclosure statutes, must take an oath faithfully to discharge the duties of their office, and must maintain their primary residence within the District of Columbia. The Review Board's landmark designation decisions are subject to the procedural provisions of the D.C. Administrative Procedure Act, D.C. Code §§ 1-1501 - 1542. Thus the Review Board must provide hearings, at which witnesses are sworn and the parties have the right to present evidence and cross-examine witnesses; any order or decision must be based solely on the administrative record; and any order or decision must be in writing, supported by findings of fact and conclusions of law. Finally, the decisions of the Review Board are subject to judicial review by the District of Columbia Court of Appeals. See A & G Limited Partnership v. Joint Committee on Landmarks of the National Capital, 449 A.2d 291, 293 (D.C. 1982).

 The Joint Committee had been created in 1964 by two agencies -- the Commission on Fine Arts and the National Capital Planning Commission. In 1968, the District of Columbia became the third "sponsor" of the Joint Committee, 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)]." A & G Limited Partnership, supra, 449 A.2d at 292 (quoting Latimer v. Joint Committee on Landmarks, 345 A.2d 484, 485 (D.C. 1975) (footnote omitted)). Thus, until enactment of the D.C. Act, the Joint Committee implemented the federal act. Members were appointed through the joint concurrence of all three sponsors, so the Mayor was not solely responsible for appointments. Moreover, since Joint Committee members were not District of Columbia officials, their nominations did not have to be confirmed by the District of Columbia Council. The members were private individuals who received no compensation for their services. Because the members were private individuals, they were subject to none of the requirements of public officials, e.g., conflict of interest, financial disclosure, oath to faithfully discharge duties, and the requirement of District of Columbia residence. The Joint Committee was not a District of Columbia agency and thus was not subject to direct review in the District of Columbia Court of Appeals pursuant to the District of Columbia Administrative Procedure Act. See A & G Limited Partnership, supra, 449 A.2d at 293. Because it was not subject to the District of Columbia Administrative Procedure Act, the Joint Committee was not required to abide by the specific procedural requirements of the Act. Although it adopted its own procedural guidelines, these fell short of the requirements of the Act in several respects. See Statement of Points of Law and Authority in Support of Plaintiffs' Motion for Summary Judgment (Plaintiffs' Mem.) at 20 (filed June 1, 1984).

 On January 30, 1985, this Court issued a final Memorandum and Order, disposing of the issues properly presented and declining to decide those issues deemed not yet ripe. Plaintiffs had argued that the exterior of their building had been illegally designated an historic landmark because the Joint Committee, the entity administering the D.C. Act in 1981 when the designation application at issue was filed, failed to act upon the pending designation application within 90 days of the filing of a permit application as required by the D.C. Act, § 5-1002(6)(B). The Court found that the Joint Committee had violated this 90-day limitation, and thus that the designation at issue was in violation of the D.C. Act. Mem. at 13-14.

 Intervenor at that time expressed its concern that plaintiffs intended to press the argument that a failure by the Joint Committee to reach a designation decision within the 90-day period renders the property immune, in perpetuity, from landmark designation under the D.C. Act. The Court declined, however, to decide "the validity of any further landmark application or designation, or its effect upon some future permit application," noting that no " subsequent effort to apply for or grant landmark status upon a property is before the Court." Mem. at 13-14 & n.11 (emphasis in original).

 The Court also declined to rule upon plaintiffs' challenge to the ability of the Review Board to designate the interior of the Warner Building a historic landmark pursuant to a designation application then pending, on the grounds that the Review Board had not passed upon the application and plaintiffs had not filed a permit application to trigger the 90-day provision. Mem. at 19-20. In March, 1985, plaintiffs filed a motion asking the Court to reconsider and modify its opinion based upon evidence allegedly newly discovered which indicated that the lessee of the Warner Building had filed a permit application during the time that the designation application for the interior of the building was pending. Plaintiffs argued that the Court should rule that any future designation of the interior of the building would be illegal since the Review Board had violated the 90-day rule. On March 7, 1985, the Court denied plaintiffs' motion.

 The case was on appeal in the United States Court of Appeals for the District of Columbia. On October 1, 1985, the Court of Appeals granted plaintiffs' motion for a stay of their appeal pending decision by this Court on a motion pursuant to Fed. R. Civ. P. 60(b), for relief from final judgment and to reopen the record. Plaintiffs had filed the Rule 60(b) motion in this Court on September 18, 1985. As grounds for their motion, plaintiffs argued that events subsequent to the Court's entry of final judgment caused the issues not decided by the Court to become ripe and thus justified relief and a reopening of the record. Specifically, on March 18, 1985, the D.C. Preservation League filed a second application to designate the exterior of the Warner Building a historic landmark, and, pursuant to a joint hearing on the exterior and interior of the building, the Review Board on August 7, 1985, designated the exterior, and on August 21, 1985, the interior theater portion, of the building historic landmarks. These events indeed make ripe certain issues not decided by the Court in its final Memorandum and Order, the resolution of which would facilitate review in the Court of Appeals. Consequently, on December 18, 1985, this Court granted plaintiffs' Rule 60(b) motion.

 On February 11, 1986, the Court of Appeals remanded the action to this Court for further proceedings. On March 6, 1986, the parties attended a status conference at which plaintiffs indicated that they deemed the action submitted to the Court for decision. Intervenor agreed, except that it indicated a need for further discovery if the Court deemed the facts surrounding the submission of a permit application for the interior of the Warner Building in November of 1984 to be material to its determination. The Court indicated that intervenor should file an affidavit indicating the facts agreed to and those in dispute, and indicated that it would notify plaintiffs if a response were necessary. The affidavit, termed Intervenor's Supplemental Opposition to Plaintiffs' Motion for Relief from Final Judgment and to Reopen the Record (filed March 10, 1986), indicates that all material facts regarding the interior permit application are undisputed. Consequently, no further filings by the parties are required. The action is now before the Court on the parties' renewed cross-motions for summary judgment as to the issues raised in plaintiffs' Rule 60(b) motion. Plaintiffs have, pursuant to Local Rule 1-9(i), filed a Supplemental Statement of Material Facts As To Which There is No Genuine Issue (SSMF) (filed Sept. 18, 1985).

 II.

 Plaintiffs argue that they are now entitled to complete summary judgment in their favor. They press the issue not decided in the Court's earlier Memorandum and Order that the D.C. Act requires that once the entity implementing it exceeds the 90-day limit on decision, the property at issue is forever exempt from designation as an historic landmark under the D.C. Act. Specifically, plaintiffs make three separate arguments, which they claim entitle them to the relief they seek -- permanent exemption of both the exterior and the interior of the Warner Building from landmark designation. These arguments are: (1) the failure of the District of Columbia government defendants to act on the first designation application relating to the exterior of the Warner Building within 90 days of receipt of the permit application means that the exterior of the building is forever free from designation as an historic landmark; (2) the failure of the District of Columbia government defendants to act on the designation application for the interior of the building ...


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