A Subject Matter Summary for "Demolition"

The District of Columbia’s current preservation law, the Historic Landmark and Historic District Protection Act of 1978 (the "Act") {1} arose largely in response to the demolition or proposed demolition of historically significant landmarks that accelerated in the construction boom following World War II. {2} The federal government’s interstate highway and urban renewal programs forever altered the landscape of D.C., particularly in Southwest, which saw entire neighborhoods removed. {3} The federal government’s plans to demolish the Old Post Office on Pennsylvania Avenue catalyzed citizen action groups and led to the creation of the first citywide preservation organization in 1971, "Don’t Tear It Down" which saved the landmark.

Existing laws at the time, both federal and local, did not adequately protect historic landmarks or neighborhoods from demolition. For instance, under the Shipstead-Luce Act, which Congress passed in the 1930s, the Commission on Fine Arts (CFA) had control over the design of private and public buildings adjacent to federal buildings, parks and other properties of great importance in Washington as far as they might "relate to height and appearance, color and texture of materials of exterior construction." {4} However, under Shipstead-Luce, the CFA could not prevent an owner from demolishing a building or and removing its front façade. {5}

Don’t Tear It Down’s grassroots efforts in the 1970s to save the Old Post Office, the Willard Hotel, and other historic properties increased the social and political acceptance of Washington’s burgeoning historic preservation movement. In 1973, the City Council implemented a required delay in demolition for historic properties. {6} The concept was that the delay would check speculative demolition and allow more time for preservationists to negotiate with developers about economically feasible ways to save historic properties. Preservationists realized that laws stronger than a mere delay in demolition provision were needed, as developers were free to demolish a building after the 180-day delay period had elapsed—which often happened.

Two events then changed the preservation playing field. First, Congress passed the Home Rule Act {7} in 1973 giving the District control over its own planning and preservation laws. Second, the Supreme Court in 1978 ruled in Penn Central v. New York , {8} its first historic preservation case, that New York City’s strong preservation law did not unconstitutionally deny a property owner a reasonable return on its investment when it landmarked Grand Central Station and denied the owner a permit to construct a 55-story office building on top of it. Tough local preservation laws had passed muster.

DC’s Act, which was modeled on the NY City preservation ordinance also was passed in 1978. It created serious structural obstacles to demolition. The Act and regulations define "Demolish or Demolition" as "The razing or destruction entirely or in significant part, of a building or structure, and includes the removal or destruction of any facade of a building or structure." {9} Under the previous delay in demolition regime, a presumption existed that demolition could occur so long as owners engaged in "meaningful discussions" during the 180-day moratorium. {10} The Act, however, creates a presumption against demolition unless the owner can show (1) "unreasonable economic hardship" , (2) that such demolition is "necessary in the public interest" or (3) that demolition is necessary for a project of "special merit." {11} Demolition is defined in

1. Unreasonable Economic Hardship

Section 6-1102 of the D.C. Code states that a property owner suffers unreasonable economic hardship when "failure to issue a permit would amount to a taking of the owner’s property without just compensation." {12} The D.C. Council, when designing the economic hardship provision of the Act, incorporated the Constitutional "takings" standard set forth by the Supreme Court in the landmark Penn Central case, noted above. By closely following this standard the Act has successfully avoided constitutional takings claims.

The Act also contains a separate, somewhat more flexible economic hardship standard for low-income property owners. Under this provision, "low-income owners" suffer unreasonable economic hardship if, in the opinion of the Mayor, a permit denial imposes an "onerous and excessive financial burden" upon them. {13} This provision has never been the subject of a Mayor’s Agent decision.

In an economic hardship case, the applicant shoulders the burden of proving that there are no reasonable alternative economic uses for the property. The mere fact that historic preservation imposes significant costs or precludes more lucrative uses does not itself constitute an economic hardship justifying demolition. In 900 G Street Associates v. Department of Housing and Community Development , {14} the Mayor’s Agent denied a developer’s permit to demolish the Old Masonic Temple, an individually designated landmark, for failing to show that the denial would preclude any reasonable use of its property or return on its investment. {15} On appeal, the court rejected the applicant’s unreasonable economic hardship arguments, concluding that reasonable use of the property remained: "if there is a reasonable alternative economic use for the property after the imposition of the restriction on that property, there is no taking, and hence no unreasonable economic hardship to the owners, no matter how diminished the property may be in cash value and no matter if ‘higher’ or ‘more beneficial’ uses of the property have been proscribed." {16}

See the separate issue summary "Unreasonable Economic Hardship" for additional context as to this point.

2. Necessary in the Public Interest

The Act defines the term "necessary in the public interest" as consistent with the purposes of the Act as established in § 6-1101(b) or necessary to allow the construction of a project of special merit. {17}

Whether a proposed action is "consistent with the Act" "requires consideration of whether a demolition could be accomplished while maintaining the salient historic qualities of a building, so that it may be readily understood by present and future generations." {18} The Historic Preservation Review Board ("HBRP") makes a determination of consistency when it reviews a demolition application referred to it. If the HBRP finds the project to be inconsistent with the Act, the applicant can then appeal to the Mayor’s Agent. A number of cases have illuminated what can and cannot be considered "consistent with the Act." The Mayor’s Agent grants substantial deference to the consistency findings of the HBRP. {19}

In the Old Italian Embassy case, HPA No. 06-171, the Mayor’s Agent determined that the proposed demolition of a portion of the landmark Beaux Arts structure was not consistent with the purposes of the Act. As the HBRP is "the expert agency charged with reviewing proposed demolitions under the Act," the Mayor’s Agent decided to "defer to and adopt" the HPRB’s findings that the proposed demolition was not consistent with the purposes of the Act. {20} The project would have required demolition of significant exterior features of the existing building, including twin chimneys that were recognized as architecturally and historically significant by the D.C. Commission of Fine Arts.

Many earlier Mayor’s Agent cases mention the term "partial demolition", but the Act does not distinguish between "demolition" and "partial demolition", nor does it define "partial demolition." The Mayor’s Agent in a case involving the redevelopment of Arena Stage, HPA Nos. 02-471, 472, 515, frowned upon the concept of "partial demolition": "the use of the word ‘partial’ belies the fact that historic fabric will be destroyed in the process of the requested demolition. As such the world ‘partial’ should be used sparingly, if at all." {21}

See the separate issue summary "Consistent with Purposes of the Act" for additional context as to this point.

3. Project of Special Merit

In order for a historic property to be demolished under the "special merit" exception, demolition must be "necessary" to allow for a new project providing "significant benefits" to the community through (a) exemplary architecture, (b) specific features of land planning, or (c) social or other benefits having a high priority for community services." 22 The "necessary" analysis sets a relatively high standard. An applicant must demonstrate that all reasonable alternatives to demolition have been considered. {23} Although the Mayor’s Agent will consider cost, delay, and technical feasibility in determining whether a particular demolition is reasonably necessary, the fact that demolition is the least expensive alternative does not mean that it is "necessary." {24}

a. Exemplary Architecture.

The exemplary architecture exception for special merit has been strictly construed over the recent decades, and only a few buildings have successfully obtained a demolition permit for exemplary architecture under the Act. {25} Several cases have reiterated that designs must be exemplary, not merely compatible with the historic district. {26} Moreover, exemplary architecture is not simply "high end" or more expensive but should include bold and innovative improvements and represent "design work of the highest caliber." {27}

For additional insight on exemplary architecture, see the separate issue summary, "Mayor’s Agent-Exemplary Architecture", and the following article:

Egleston, Pamela, "The Exemplary Architecture Exception to the District of Columbia Historic Landmark and Historic District Protection Act" (2004). Georgetown Law Historic Preservation Papers Series , Paper 13, available at http://scholarship.law.georgetown.edu/hpps_papers/13.

b. Special Features of Land Planning

Projects that carry out specific planning policies and incorporate the interests of the Comprehensive Plan can qualify under special merit’s second prong by virtue of "special features of land planning." {28} In a case involving the renovation of the Arena Stage on the Southwest Waterfront, HPA Nos. 02-471, 472, 515, the Mayor’s Agent held that demolition of the landmarked theater’s administrative and service wings and construction of a glass shell over the theater building incorporated special features of land planning and was a project of special merit. The project would fulfill several goals of the Comprehensive Plan by "preserving two major historic interior theater spaces, providing a third theater and adding support space necessary for the continued viability of the theater company…the project also fulfills a major theme of the plan to ‘continue to support a healthy arts and cultural community.’" {29}

In the "Big K" case, HPA Nos. 14-221, 14-222 (Oct. 28, 2014), the Mayor’s Agent established that "Consistency with the Comprehensive Plan may provide the basis for a project's special merit." {30} The Mayor’s Agent found that a mixed use project bringing much-needed affordable housing and Class A retail to Anacostia satisfied several elements of the Comprehensive Plan. {31}

c. Social or other benefits having a high priority for community services

Community services can include fostering arts or physical education at a public school. In the case Duke Ellington School for the Arts, HPA No. 14-322, the Applicants argued at the Mayor’s Agent hearing that the demolition of the theater and certain major renovations at the school promoted important community educational and cultural needs. {32} Based on the evidence produced at the hearing, the Mayor’s Agent agreed with the need to construct modern, high quality theater and performance facilities, the inadequacy of existing facilities, and the necessity of demolition of contributing architecture to realize the benefits of the project. {33}

Similarly, in a case involving Rose L. Hardy Middle School, HPA No. 02-608, the Mayor’s Agent agreed that demolition of the two-level gymnasium added in 1931 and the construction of a new gym rose to the level of a project of special merit. {34} First, the new construction would make the facility much more user friendly, and be consistent with DC’s School Specific Educational Specification (SSES) standards for critical program and functional adjacencies. Second, the project would create entirely new spaces on the currently unusable lower level. Third, the new gymnasium would permit two physical education classes to be conducted at once and would comply with floor size regulations for competitive middle school sports. There were other advantages as well, all serving to mark the project as having a high priority for community services.

The expansion and modernization of public safety facilities—such as firehouses—also is considered an important community benefit {35} and is now specifically given a higher priority under D.C. Code Section 6-1108.01.

The social benefits of an affordable housing project does not make a project one of special merit per se, but an affordable housing and well-designed mixed-use project with retail can, in certain limited circumstances, create "benefits having a high priority for community services." {36} In a case involving a proposed 100% affordable housing and retail complex in Anacostia, the Mayor’s Agent reasoned that while benefits common to many developments (such as affordable housing and retail) cannot be considered special within the meaning of the Act, the creation of 114 units of affordable housing specifically in underserved Anacostia was anything but a common occurrence. Moreover, the project would create the first Class A commercial space in the area which could well "galvanize" and have a "catalytic" effect on other affordable housing and Class A office space in the area. {37} In other words it was a unique project.

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{1} D.C. Law 2-144, D.C. Code Ann. §6-1102 (2014).

{2} Dutra, Jeremy W., "You Can’t Tear it Down: the Origins of the D.C. Historic Preservation Act" (2002). Georgetown Law Historic Preservation Papers Series . Paper 1, at 7. http://scholarship.law.georgetown.edu/hpps_papers/1

{3} Id. at 8.

{4} The Shipstead-Luce Act of 1930, ch. 291, 46 Stat. 366 (1930) (codified at 40 U.S.C. § 121).

{5} See Dutra, supra note 1, at 13.

{6} Id. at 9.

{7} P.L. 93-198, D.C. Code § 1-201.01 et seq.

{8} Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646 (1978).

{9} 10 DCMR 9901 (citing D.C. Code § 6-1102(3)).

{10} Id. at 24.

{11} See D.C. Code § 6-1104(e),(h) (2015).

{12} D.C. Code §6-1102.

{13} §6-1102(14).

{14} 900 G Street Associates, HPA No. 79-310 (December 21, 1979); 900 G Street Associates v. Dep’t. of Housing and Community Development , 430 A.2d 1387 (D.C. 1981). For a more recent case to the same effect, see District Intown Props. v. D.C. Dep't of Consumer & Regulatory Affairs, 198 F.3d 874 (D.C. Cir. 1999).

{15} HPA No. 79-310 at 11.

{16} Id. at 1390.

{17} §6-1102(10).

{18} In re: Application Of Embassy Real Estate Holdings, LLC, HPA No. 06-171 (Aug. 29, 2006) at 27.

{19} See Committee for Washington’s Riverfront Parks v. Thompson , 451 A.2d 1177, 1194 (D.C. App. 1982) ("[D]etermination by [the Historic Preservation Review Board] on a matter within its expertise [must be] accorded considerable deference."). See also In the Matter of Lisa Foster and Alan Bersin 2422 Tracy Place NW, HPA No. 13-600 (Aug. 29, 2013) at 2 ("The Mayor’s Agent generally defers to the expertise of the HPRB on questions of style and material compatibility."). See also Matter of 1901 4th St NW, HPO 15-566 (2015) ("The Mayor’s Agents defers (sic) to expert judgements by the HPRB about compatibility.").

{20} Id. at 27 (citing Committee for Washington’s Riverfront Parks , 451 A.2d at 1194)

{21} In Re: Application of the Washington Drama Society, Inc. (d/b/a Arena Stage), HPA Nos. 02-471,472, 515 (Sept. 27, 2002) at 1, note 1.

{22} D.C. Code §6-1102

{23} See Kalorama Heights Ltd. Partnership v. D.C. Department of Consumer and Regulatory Affairs , 655 A.2d 865, 870 (D.C. 1995).

{24} See Don't Tear It Down, Inc. v. D.C. Dep’t of Housing and Community Development , 428 A.2d 369, 379-80 (D.C. 1981).

{25} See In Re: Application of the Washington Drama Society, Inc. (d/b/a Arena Stage), HPA Nos. 02-471,472, 515 (Sept. 27, 2002); Corcoran Gallery of Art, HPA No. 02-284 (2002).

{26} See In re the Woodward Building, HPA No. 86-729 (1988); In re Turkish Chancery, HPA No. 87 (1988).

{27} See In Re: Application of Embassy Real Estate Holdings, LLC (former Italian Embassy), HPA No. 06-171 (2006).

{28} See Application of the Washington Drama Society, Inc. (d/b/a/ Arena Stage), HPA Nos. 02-471, 472, 515 (Sept. 27, 2002)

{29} Id. at 6.

{30} 2234 and 2238 Martin Luther King Jr. Ave., SE (the Big K), HPA Nos. 14-221, 14-222 (Oct. 28, 2014), at 5.

{31} Id.

{32} In the Matter of: Duke Ellington School for the Arts (former Western High School), HPA No. 14-322 (Aug. 18, 2014) at 2.

{33} Id.

{34} In the Matter of Rose L. Hardy Middle School, HPA No. 02-608 (Feb. 3, 2003) at 5.

{35} See In the Matter of: Fire Engine Company No. 20, HPA No. 02-223 (June 28, 2002);

{36} See 2234 and 2238 Martin Luther King Jr. Ave., SE (the Big K), HPA Nos. 14-221, 14-222 (Oct. 28, 2014).

{37} Id. at 4.

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