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PRESERVATION LEAGUE v. CON. & REG. AFFAIRS

May 29, 1998

DISTRICT OF COLUMBIA PRESERVATION LEAGUE, PETITIONER,
V.
DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER & REGULATORY AFFAIRS, RESPONDENT, AND BACK BAY RESTAURANT GROUP, INC., INTERVENOR.



Before Wagner, Chief Judge, and Terry, Associate Judge, and Pryor, Senior Judge.

The opinion of the court was delivered by: Wagner, Chief Judge:

Petitioner, the District of Columbia Preservation League (Preservation League), seeks review of a decision of the Department of Consumer and Regulatory Affairs (Mayor's agent) authorizing the issuance of a permit to intervenor, Back Bay Restaurant Group, Inc. (Back Bay), for partial demolition of the Vigilant Firehouse Building (the Vigilant), a historic landmark located at 1066 Wisconsin Avenue, N.W., in the District of Columbia, after the demolition had occurred. The Preservation League argues that the Mayor's agent's approval of the issuance of a permit for partial demolition of the building is inconsistent with the Historic Landmark and Historic District Preservation Act of 1978 (Preservation Act), D.C. Law No. 2-144, codified at D.C.Code §§ 5-1001 through - 1015 (1994). Specifically, the Preservation League argues that the Mayor's agent improperly considered the demolition in components and mischaracterized the work as alterations, thereby circumventing the proper application of the statute, and that Back Bay failed to meet its burden of proof for issuance of the permit. It also contends that the Mayor's agent abused her discretion in striking from the record one of District of Columbia Department of Consumer Regulatory Affairs' (DCRA) opinions appended to the Preservation League's proposed findings of fact and conclusions of law after the record had been closed. We affirm.

I.

A. Facts and Procedural History

The Vigilant, which is located in the Georgetown Historic District, is the oldest firehouse in the District. It was constructed originally as a two-room structure in 1844, but several additions were added, mostly in the late 19th and early 20th centuries, which doubled its size. A two-story addition to the north side of the building resulted in the complete enclosure of the original exterior north wall of the building. The building was included in the National Register of Historic Places as a historic property in 1971.

The property had been vacant for approximately twelve years when Back Bay acquired it in 1992, planning to develop it as a restaurant. Back Bay found that the upper portion of the south wall, collar ties in the gable connected to it, and the wood joists in the roof of the building's additions were severely deteriorated, containing dry rot and water damage. According to John Hildreth, a structural engineer, the south wall contained cracked bricks and crumbling mortar and severe structural damage which precluded its salvage, and he recommended taking it down. Back Bay considered various methods for repairing the wall, but concluded that repair was not feasible. Back Bay determined that the condition of the wall necessitated its disassembly brick by brick. In January 1994, the collar ties supporting the roof collapsed.

Back Bay hired Jeffrey Cherry to assist in obtaining construction permits in connection with converting the Vigilant into a restaurant. With its application for permits, Back Bay submitted architectural drawings. The Technical Review Branch of the DCRA approved the application, with the notation "permit for interior demolition only." (Emphasis added.) There was evidence that officials reviewing the plans did not understand that the south wall was an exterior wall, as it [711 A2d Page 1275]

was set back from the property line. The Old Georgetown Board of the Commission on Fine Arts (CFA) approved the application on April 6, 1994, with a statement in its transmittal letter, "No objection to issuance of permit for proposed demolition associated with approved plans. The main roof structure will be retained and repaired where necessary as shown. . . ." The CFA approved the demolition of the north wall, which it knew had been a historic exterior wall. DCRA issued the permit on April 21, 1994. Believing that the alteration of the south wall was authorized and that no demolition permit was required, Back Bay completed removal of the north and south walls by July or August 1994.

Concerned about the extent of the demolition, the Preservation League notified DCRA that exterior walls for the Vigilant had been demolished. Finding no permit for exterior demolition, DCRA issued Back Bay a stop work order on October 26, 1994, which stated that the work should cease until Back Bay obtained the proper permit. On October 28, 1994, Back Bay filed an application for partial demolition of the second floor portion of the south wall. DCRA permitted Back Bay to construct a temporary enclosure for the south wall.

B. The Decision of the Mayor's Agent

The Mayor's agent concluded that the south wall no longer contributed to the historic landmark because it had been torn down previously and was severely deteriorated, and the majority of the bricks, of which it was constructed, were beyond repair. She determined that the removal of the wall and its reconstruction with both original and matching bricks, as Back Bay intended, would enhance the Vigilant. The Mayor's agent also found that Back Bay had met its burden of demonstrating that "partial demolition [would] permit the retention, enhancement, restoration and adaptation for current use of the Vigilant building." Having concluded that demolition of the south wall "was necessary in the public interest by virtue of its consistency with the purposes of the Act[,]" the Mayor's agent granted Back Bay's request for a permit for partial demolition. She also determined that no demolition permit was required for removal of the north wall because it was an interior element for which no permit was required under the Act.

II.

A. Standard of Review

We will not disturb the factual findings of the Mayor's agent if they are supported by substantial evidence in the record. District of Columbia Preservation League v. District of Columbia Dep't of Consumer and Regulatory Affairs, 646 A.2d 984, 989 (D.C. 1994) (citations omitted). "The Mayor's agent, like any administrative agency, must operate within the applicable statutory constraints in performing his [or her] assigned task." Id. at 990 (citing D.C.Code § 1-1510(a)(3)(C) (1992)) (other citations omitted). While our review of an agency's legal determinations is de novo, we will accord deference to an agency's interpretation of the statute which it is responsible for administering if it "'is reasonable and not plainly wrong or inconsistent with its legislative purpose." Coumaris v. District of Columbia Alcoholic Beverage Control Bd., 660 A.2d 896, 899 (D.C. 1995) (quoting McCulloch v. District of Columbia Rental ...


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