HPA No. 1987-377 (In re. Duke Ellington Memorial Bridge)

• HPA Number: 1987-377
• Case Name: In Re Matter of Duke Ellington Memorial Bridge
• Applicant: District of Columbia Department of Public Work
• In Opposition: Advisory Neighborhood Commissions 1-C and 3-C, et al., and D.C. Preservation League
• Location of Property: Duke Ellington Memorial Bridge, located at Calvert Street, Northwest, between Woodley Place and Biltmore Street, Northwest
• Date of Decision: 8/20/1987
• Type of Case/Type of Permit Sought: Building Permit (to retain safety barriers)
• Disposition: Approved
• Date of Case Summary: 11/26/2014

Summary of Decision:

The District of Columbia Department of Public Works (the “Applicant” or “DPW”) submitted an application for a building permit to retain already erected safety barriers (8 feet high when measured from the sidewalk) on the Duke Ellington Memorial Bridge (“Ellington Bridge”), an individually designated historic landmark. The application was opposed by the Advisory Neighborhood Commissions 1-C and 3-C, the Kalorama Citizens Association, Woodley Park Community Association, other named citizens, and the D.C. Preservation League (collectively, the “Opposition”).

The Application was reviewed by the Historic Preservation Review Board (“HPRB”), which recommended denying the permit because “the safety barriers were not compatible with the architecture of the Ellington Bridge.” The Commission of Fine Arts (“CFA”) also recommended denying the permit.

The Applicant argued that “retention of the safety barriers is necessary in the public interest because it constitutes a project of special merit” because, according to the Applicant, “the barriers have both reduced the incidence of suicide at the bridge site and improved overall public safety at the site, and [] these public safety objectives are of significant benefit to the District of Columbia and the community.” The Opposition opposed the permit on multiple grounds, arguing among other things that the barriers violated the “architectural integrity” of the bridge, and that “passive site-specific barriers on bridges are ineffective as suicide deterrents.”

The Mayor’s Agent made detailed findings of fact. The Mayor’s Agent found the Opposition’s witness testimony on the architectural significance of the bridge to be undisputed. Also uncontroverted, however, was evidence that, prior to construction of the safety barriers, the bridge was the most frequent bridge used for suicide in the District of Columbia. The Mayor’s Agent also identified “other significant public safety issues” relevant to the safety barriers, including threats to motorists traveling below the bridge from falling suicide victims and debris. The Mayor’s Agent also found that the Department of Public Works has been erecting safety barriers on many bridges throughout D.C. for many years.

In addition, the Commission on Fine Arts had recommended mitigating measures to the safety barriers. The Mayor’s Agent found that the Applicant had incorporated all of these recommendations. The Applicant had also considered alternatives to the safety barriers, all of which were rejected on reasonable grounds.

Notably, the Mayor’s Agent found that during the 16 months prior to the construction of the safety barriers, there were 9 suicides from the bridge. In the 16 months after construction, there was one. Evidence in the record also demonstrated that the erection of safety barriers at other sites nationwide successfully reduced the incidence of suicide at those sites.

The Opposition argued that the erection of safety barriers would merely serve to redirect potential suicide victims to other bridges or to other methods of committing suicide. However, The Mayor’s Agent found that the record did not support any such finding, or that the erection of safety barriers at one bridge would affect the citywide suicide rate, or the number of bridges used for suicides. The Opposition also advanced alternatives to the safety barriers (including installing a hotline on this and other bridges, stationing a counselor at the bridge full time, and posting police officers on the bridge full time). However, the Mayor’s Agent determined that the Opposition had failed to offer any testimony on the technical feasibility and costs of these options.

The Mayor’s Agent ultimately concluded that the safety barriers “are a significant compromise of the architectural and historical integrity of the bridge.” Nevertheless, the Mayor’s Agent found that because the barriers were an effective suicide deterrent and generally increased safety on the bridge, the barriers constituted a project of special merit. The Mayor’s Agent balanced the competing interests of architectural integrity against the benefit to the community from the project of special merit. She concluded that “the barriers have significant benefits because they deter or reduce suicides and otherwise improve public safety on and under the Ellington Bridge; the special merit of the barriers outweighs any infringement upon the architectural integrity of the Ellington Bridge; and there are no reasonable alternatives to the safety barriers.” In addition, the Mayor’s Agent found that “a much stronger showing of infringement to the bridge’s historic architectural qualities would be required to justify removing them.” The Mayor’s Agent therefore approved issuance of the permit.

Procedural History:

The matter was previously litigated in both the U.S. District Court for the District of Columbia (the “Federal Court”) and the Superior Court of the District of Columbia (the “Superior Court”):

On August 17, 1985, a suit was filed in the Federal Court by a number of historic preservationists and community organizations, seeking to enjoin further work on the bridge and to require the Federal Highway Administration (“FHWA”) to evaluate alternatives to the barriers. The Court granted summary judgment to the FHWA, holding that the FHWA “was not statutorily bound to conduct such evaluations.”

On January 3, 1986, a complaint was filed in the Superior Court, seeking to restrain continuing construction of the barriers. The Court found that DPW and Mayor Barry did not follow the applicable law because they (1) failed to give proper notice to the affected ANCs and to give the ANC’s concerns “great weight,” and (2) did not follow the proper procedure by filing for a permit with the Department of Consumer and Regulatory Affairs (“DCRA”), and consequently there had been no review by the HPRB or determination by the Mayor’s Agent. The Court ordered DPW to file for a permit with DCRA, to be referred to the HPRB for a recommendation to the Mayor’s Agent, who would make a finding within 120 days of receipt of the application by the HPRB.

On May 20, 1987, the HPRB reviewed the application and recommended denying the permit.

On June 8, 1987, the CFA also recommended denying the permit.

Necessary in the Public Interest:

The Applicant argued that the project was “necessary in the public interest” because it was a “project of special merit” with significant benefit to the District of Columbia and the community by virtue of “social or other benefits having a high priority for community services.” The Mayor’s Agent found that the barriers constituted a project of special merit, because they provided significant benefits to the community by improving public safety and deterring suicides. She also stated that “[t]o establish that the retention of the barriers is necessary in the public interest, the Applicant also must demonstrate that there are no reasonable alternatives to the barriers.” The Mayor’s Agent employed the reasonable alternative standard set forth in Don’t Tear It Down, Inc. v. Department of I-busing and Community Development, 438 A.2d 369, 379 (1981), concluding that the applicant is not charged with considering every option but rather must consider all reasonable alternatives. The alternatives considered by the Applicant included chain link fencing or plexiglass panels, wire systems or nets, and increased police patrol. The Mayor’s Agent found that “the Applicant has considered all reasonable alternatives to the barriers and had rejected them as either technically infeasible, ineffective, prohibitive in cost, or aesthetically more damaging to the architecture of the bridge.”

Project of Special Merit – Balancing Test:

The Mayor’s Agent must “balance the competing interests of preserving the architectural integrity of an historic landmark against whatever ‘social or other benefits’ of the safety barriers, if any, are substantiated by the evidence on record.” A “project of special merit” means “‘a plan . . . having significant benefits to the District of Columbia or the community by virtue of exemplary architecture, specific features of land planning, or social or other benefits having a high priority for community service.’”

The Ellington Bridge was completed in 1935 and designated a historic landmark on the District of Columbia Inventory of Historic Sites in 1973. The bridge was designed by Paul Phillipe Cret, “one of the nation’s foremost architectural experts of the classical school.” An expert witness for the Opposition testified that the barriers compromise the bridge’s classical design and “destroy the sense of public space that Cret wanted the bridge to accomplish.” The Mayor’s Agent found that the barriers are a significant compromise of the architectural and historical integrity of the bridge and that substantial social benefits must be found to justify the barriers’ retention. She further concluded that deterrence of suicides and improving public safety, if demonstrated, would result in the Ellington Bridge barriers being designated a project of special merit. Where barriers are found to be an effective suicide deterrent, a much stronger showing of infringement to the bridge’s historic architectural qualities would be required to justify removing them. The Mayor’s Agent found that the barriers were effective suicide deterrents because the incidence of suicide at the Ellington Bridge had decreased from nine suicides during the sixteen months prior to the erection of the barriers to one suicide in the nineteen months after the erection of the barriers. Concluding that the Applicant had pursued a consistent policy of erecting safety barriers on bridges having a history of public safety problems (i.e., over forty bridges in the District of Columbia), the Mayor’s Agent found that accessibility and attractiveness of the Ellington Bridge as a suicide site were the reasons for the Applicant’s expeditious consideration of erecting barriers on the bridge. The Mayor’s Agent held that the barriers contribute to the overall safety of the bridge and surrounding area and that “the special merit of the barriers outweighs any infringement upon the architectural integrity of the Ellington Bridge.”

Project of Special Merit – Social or other Benefits having a High Priority for Community Services:

The Mayor’s Agent stated that the Ellington Bridge “was a bridge with a notorious public safety problem, primarily due to its popularity[] as a suicide site.” The Mayor’s Agent found that “deterrence of suicides and improving public safety on and under the Ellington Bridge, if demonstrated, would constitute a project of special merit.” The Applicant argued that “the barriers have both reduced the incidence of suicide at the bridge site and improved overall public safety at the site, and that these public safety objectives are of significant benefit to the District of Columbia and the community.” The Opposition argued that because most suicides are premeditated, barriers on the Ellington Bridge only lead those individuals likely to attempt suicide to look elsewhere. Indeed, the Opposition pointed to evidence showing a citywide increase in total suicide. However the Mayor’s Agent was persuaded by the Applicant’s evidence that a bridge suicide is “likely to be an ambivalent, impulsive act which could be deterred by a physical barrier.” She analogized that, “[j]ust as a citywide increase in automobile deaths does not justify the removal of a stop sign at a dangerous intersection, so an increase in citywide does not justify removal of the safety barriers at the Ellington bridge.” The Mayor’s Agent found that “the reduction of the suicide rate from nine to one over a comparable period of time is evidence that the barriers have been effective as a deterrent to suicide.” She also found that the barriers addressed other public safety issues including homicides and car and pedestrian accidents resulting from people jumping from the bridge or debris being thrown from the bridge onto the Rock Creek Park roadway and sidewalks below. The Mayor’s Agent concluded that the barriers constituted a project of special merit, having significant benefit for the community by deterring or reducing suicides and otherwise improving public safety, which outweighs any infringement to the architectural integrity of the bridge. Furthermore, she concluded that there are no reasonable alternatives to the barriers.

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