A Subject Matter Summary for "Landmarks"

The District of Columbia Historic Landmark and Historic District Protection Act of 1978 {1} (the “Act”) authorizes the creation of historic landmarks to “safeguard the city’s historic, aesthetic and cultural heritage.” {2} An “historic landmark” is a “building, structure, object, or feature, and its site, or a site” either listed in the National Register of Historic Places or listed (including pending applications for listing) in the District of Columbia’s inventory of historic sites. {3} The Act extends to any property for which an application for landmark status is pending with the Historic Preservation Review Board (“HPRB” or the “Board”), provided that the HPRB schedules a hearing on the application within 90 days to determine whether the property satisfies the criteria of a landmark. {4} The Act intends to retain and enhance historic landmarks, and to encourage current use as well as restoration. {5}

The act of historic landmark designation imposes a framework of historic preservation regulations on owners of landmarks to limit significant changes to the landmark’s integrity. For instance, in D.C., owners of a landmark must apply to the Mayor for a permit to alter, demolish, subdivide, or build new construction on the site of an historic landmark. {6} Development controls on historic landmarks are slightly stricter than for contributing buildings in historic districts. For example, one of the purposes of the Act with respect to historic districts is to ensure that “alterations of existing structures are compatible with the character of the historic district,” {7</sup>but that same compatibility phrasing does not apply to the purposes of the Act with respect to landmarks. Instead, the Act aims to “encourage the restoration of historic landmarks.” {8} The term “restoration” rather than compatible “alterations” denotes a narrower scope of permitted activities at a landmark.

In addition, there is stronger protection under the Act for a pending landmark than for contributing buildings within a pending historic district. The Act’s protections temporarily apply to a proposed historic landmark immediately upon the filing of a landmark application (and permanently upon landmark designation), but the protections of the Act apply to properties within a proposed historic district only after the HPRB designates the district and the State Historic Preservation Officer “nominates or issues a written determination to nominate the district to the National Register of Historic Places.” {9} In a case concerning the former Italian Embassy, the developer of the former embassy property on 16th Street had applied for and had received some of the requested permits before the Historic Preservation Office applied to designate the property a landmark and before the HPRB had completed its review of the landmark designation application. Nevertheless, the D.C. Court of Appeals affirmed that the Act grants the Board jurisdiction over pending landmark designations as well as previously designated landmarks. {10}

Applications for a new historic landmark can only be made by “the owner of the affected property, the Board, a public agency, governmental unit or department, Advisory Neighborhood Commission, or a historic preservation organization.” {11} In designating a landmark under either the D.C. Inventory criteria {12} or the National Register of Historic Places criteria, {13} the proposed landmark must convey significance in American or District of Columbia history, architecture, archaeology, and culture as well as possess integrity of location, design, setting, materials, workmanship, feeling, and association with significant historical events, persons, or artistic values.

The U.S. Supreme Court has long held that historic preservation is a legitimate government objective and that designating an historic landmark does not in itself create an unconstitutional taking. {14} Similarly, it is well settled law that the mere act of landmarking does not create a justiciable controversy under the First Amendment. {15}

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{1} D.C. CODE § 6-1101 (2014) et seq.

{2} D.C. CODE § 6-1101(a)(2) (2014)

{3} D.C. CODE § 6-1102(6) (2014)

{4} D.C. CODE § 6-1102(6) (2014)

{5} D.C. CODE § 6-1101(b)(2) (2014)

{6} See D.C. CODE § 6-1104, 6-1105, 6-1106, 6-1107 (2014)

{7} D.C. CODE § 6-1101(b)(1) (2014)

{8} D.C. CODE § 6-1101(b)(2)(B) (2014)

{9} D.C. MUN. REGS. tit. 10-C § 200.2 (2004)

{10} See Embassy Real Estate Holding, LLC v. District of Columbia Mayor’s Agent for Historic Preservation, 944 A.2d 1036 (D.C. 2008).

{11} D.C. MUN. REGS. tit. 10-C § 203.1 (2004)

{12} D.C. MUN. REGS. tit. 10-C § 201.1 (2004)

{13} D.C. MUN. REGS. tit.10-C § 202.1 (2004)

{14} See Penn. Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).

{15} Metro. Baptist Church v. D.C. Dep’t of Consumer & Reg. Affairs, 718 A.2d 119 (D.C. 1998); see also Church of St. Paul & St. Andrew v. Barwick, 496 N.E.2d 183 (NY/. 1986), cert. denied , 479 US. 985 (1986) (rejecting church’s free exercise challenge to landmark designation where church had not yet applied for a permit).

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