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Kalorama Heights Ltd. Partnership v. District of Columbia Dept. of Consumer and Regulatory Affairs

March 16, 1995

KALORAMA HEIGHTS LIMITED PARTNERSHIP, PETITIONER,
v.
DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, RESPONDENT, AND SHERIDAN-KALORAMA HISTORICAL ASSOCIATION, INTERVENOR.



PETITION FOR REVIEW OF A DECISION OF THE DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS.

Before Ferren* and Terry, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: Petitioner seeks review of an order of the Mayor's Agent under the Historic Landmark and Historic District Protection Act of 1978, D.C. Code §§ 5-1001 et seq. (1994 Repl.) (the Act), denying its application for a demolition permit for "Moses House," the former French Embassy in Northwest Washington. Petitioner challenges (1) the Mayor's Agent's finding that petitioner's proposed project was not one of "special merit," id. §§ 5-1002 (10), -1002 (11), -1004 (e); (2) his finding that denial of the permit did not cause petitioner to suffer "unreasonable economic hardship," id. §§ 5-1002 (14), -1004 (e); and (3) the "special merit" provision of the Act itself, id. § 5-1002 (11), as unconstitutionally vague. Finding no error and no constitutional infirmity, we affirm.

I.

Facts and Proceedings

Petitioner, Kalorama Heights Limited Partnership (KHLP), purchased "Moses House," located in the Sheridan-Kalorama Area at 2129 Wyoming Avenue, N.W., for $1,045,000 in January 1989. *fn1 KHLP planned to demolish Moses House and to develop the site as a twelve-family luxury condominium apartment building with underground parking. On June 13, 1989, KHLP filed an application for a demolition permit with the Department of Consumer and Regulatory Affairs.

Meanwhile, on February 13, 1989, the Sheridan-Kalorama Historical Association (the Association) had filed an application with the Historic Preservation Review Board (the Review Board) for designation of the Sheridan-Kalorama area as an Historic District. On August 16, 1989, the area was so designated and listed on the District of Columbia Inventory of Historic Sites. Subsequently, when the National Register of Historic Places recognized the Sheridan-Kalorama Historic District, Moses House was noted as a contributing structure in that Historic District.

Before purchasing Moses House, KHLP had been aware that its proposed condominium project would require substantial zoning variances. *fn2 Its lawyers had advised, moreover, that there was only a fifty percent chance these variances would be granted. KHLP's lawyers also had informed KHLP that "preservationist impulses in the [Sheridan-Kalorama] area quite strong." *fn3

On April 25, 1990, several months after designation Of the Sheridan-Kalorama area as an Historic District, KHLP's application for a demolition permit was referred to the Review Board. The Board's staff recommended denial. *fn4 On July 18, 1990, the Review Board held a meeting to address KHLP's application at which the Board heard oral presentations and received written submissions. The Review Board subsequently adopted the staffs recommendation against demolition.

KHLP then requested a public hearing before the Mayor's Agent. Hearings were held on October 18 and November 1, 1990, and on March 6, 1991, the Association participated as a party in opposition. During these hearings, fifteen witnesses appeared and 31 exhibits were admitted in evidence. In addition, at the direction of the Mayor's Agent, an expert structural engineer inspected Moses House on November 29, 1990 and filed a report finding it structurally sound though in need of substantial repair. For its own part at the hearings, KHLP presented two arguments: that its proposed condominium project qualified as one of "special merit," D.C. Code § 5-1002 (11), and that KHLP would suffer "unreasonable economic hardship," id. § 5-1002 (14) if a demolition permit were not granted. *fn5

On May 19, 1992, the Mayor's Agent issued a decision and order denying the requested permit. In his findings of fact and Conclusions of law, he noted that KHLP had not explored "alternatives other than the existing residence or [KHLP's] proposed 12 unit building." He concluded that, as a consequence, KHLP had not met its burden of proving entitlement to a demolition permit as grounds of "special merit" or "unreasonable economic hardship." KHLP appeals this decision.

II.

Standard of Review and Statutory Framework

We must uphold the Mayor's Agent's decision if the findings of fact are supported by substantial evidence in the record considered as a whole and the Conclusions of law flow rationally from these findings. D.C. Code § 1-1510 (a)(3)(E) (1992 Repl.); District of Columbia Preservation League v. Department of Consumer & Regulatory Affairs, 646 A.2d 984, 989 (D.C. 1994); MB Assocs. v. D.C. Dep't of Licenses, Investigation & Inspection, 456 A.2d 344, 345 (D.C. 1982); 900 G Street Assocs. v. Department of Housing & Community Dev., 430 A.2d 1387, 1391 (D.C. 1981). Moreover, when an agency's -- and, correlatively, the Mayor's Agent's -- decision is based on an "interpretation of the statute and regulations it administers, that interpretation will be sustained unless shown to be unreasonable or in contravention of the language or legislative history of the statute." Nova Univ. v. Educational Inst. Licensure Comm'n, 483 A.2d 1172, 1190 (D.C. 1984) (citation omitted), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 822, 105 S. Ct. 1759 (1985). In making the ...


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