A Subject Matter Summary for "Mayor's Agent - General revised"

The District of Columbia passed the Historic Landmark and Historic District Protection Act of 1978 ("the Act") to protect "properties of historical, cultural, and esthetic merit." {1} Under the Act and its implementing regulations, property owners who wish to alter, demolish, subdivide, or engage in new construction in either a historic district or a landmark must seek a permit from the Mayor’s Office (the Historic Preservation Office of the Office of Planning). {2} The actual permit decision by the Mayor’s Agent is the last step in the historic preservation review process, in which both the Historic Preservation Review Board ("HPRB") and the Mayor—by and through the Mayor’s Agent—play the major roles. {3} Under the Act, the term "Mayor" means "the Mayor of the District of Columbia, or his designated agent," {4} so whenever the Act references "Mayor," it also refers to the Mayor’s Agent.

Unlike members of the Historic Preservation Review Board, the Mayor’s Agent need not have experience in historic preservation (although the current Mayor’s Agent is a professor of historic preservation law). There have been about two dozen Mayor’s Agents since the inception of the Act. {5} The previous Mayor’s Agent was an administrative law judge, and he began to align his Mayor’s Agent decisions with the precepts of administrative law to bring a greater degree of consistency and precedent to the review process. The current Mayor’s Agent (as of 2015) has continued this trend.

The Mayor’s Agent does not hear a permit case until the applicant has first gone before the HPRB at a public hearing. The HPRB makes recommendations to the Mayor’s Agent on an application for a permit under §§ 6-1104 through 6-1108. {6} If the applicant is dissatisfied with the HPRB’s decision (a "contested case"), the applicant can request a de novo hearing before the Mayor’s Agent where the applicant, its counsel, architectural experts, and other witnesses can give evidence to the Mayor’s Agent. The Mayor’s Agent reviews this record and issues a final decision. The decision must be issued within 120 days of the hearing and becomes final fifteen days after issuance. {7} The Mayor’s Agent proceedings must comply with the District’s administrative procedures, as codified in Chapter 5 of Title 2 of the D.C. Code. {8} An applicant must go to the District of Columbia Court of Appeals to seek an appeal of an unfavorable Mayor’s Agent decision. {9}

If the HPRB has approved the granting of a permit, but a member of the public (not a party to the proceeding) opposes the outcome, the Mayor’s Agent may refrain from holding a discretionary public hearing unless the "request demonstrates a palpable error of law or such a clear error of judgment as to amount to an abuse of discretion." {10}

Because the HPRB is comprised of experts in historic preservation, land planning, and architecture, the Mayor’s Agent increasingly defers to their expertise on questions of compatibility. {11} The Mayor’s Agent justifies his reliance on the HPRB’s expertise because "members of the HPRB are chosen for their expertise and interest in historic preservation and are confirmed by the District of Columbia Council." {12} In contrast, the Mayor’s Agent is "a neutral figure with no necessary expertise in historic preservation" who applies the law to protect the individual and public rights recognized in the law. {13}

In addition, now that all Mayor’s Agent decisions are available online and catalogued, the Mayor’s Agent increasingly cites previous decisions to support the Mayor’s Agent’s understanding of his authority in the case at issue, or to support the Mayor’s Agent interpretation of the Act. {14} The parties before the Mayor’s Agent also rely on the precedent established by prior rulings of the Mayor’s Agent and relevant court decisions.

For more information on the HBRP and Mayor’s Agent, see Flock, Brian M., "The House that the Mayor’s Agent Built: Stare decisis and the Decisions of the Mayor’s Agent Under D.C. Historic Preservation Law" (2005). Georgetown Law Historic Preservation Papers Series . Paper 6.

-----

{1} D.C. Code §6-1101.

{2} D.C. Code §6-1104.

{3} For applications in the Georgetown Historic District, the Old Georgetown Board (OGB), under delegation from the Fine Arts Commission, serves as the HPRB’s equivalent. An ANC may take an appeal from an adverse decision of the OGB to the HPRB which may consider the matter sua sponte if the case p[resents a city-wide issue.

{4} D.C. Code §6-1102(8). Appeals from Landmark or Historic District decisions of the HPRB do not go to the Mayor’s Agent; but to DC Superior Court.

{5} See Flock, Brian M., "The House that the Mayor’s Agent Built: Stare decisis and the Decisions of the Mayor’s Agent Under D.C. Historic Preservation Law" (2005), Georgetown Law Historic Preservation Papers Series , at 8.

{6} D.C. Code §6-1103(c)(1).

{7} D.C. Code §6-1112(a).

{8} D.C. Code §6-1112(b). For Regulations regarding proceeding before the Mayors Agent, see 10A DCMR Ch.4

{9} D.C. Code § 1-1510(a) ("Any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case, is entitled to a judicial review thereof in accordance with this subchapter upon filing in the District of Columbia Court of Appeals a written petition for review.").

{10} In the Matter of 1922 Belmont Road, NW, HPA No. 14-18 (Jan. 5, 2015) at 2.

{11} See In the Matter of: 1901 4th Street, NW, HPA No. 14-566 (March 3, 2015) ("The Mayor’s Agent defers to expert judgments by the HPRB about compatibility.").

{12} In the Matter of: Lisa Foster and Alan Bersin, HPA No. 13-600 (August 29, 2014) at 2 (quoting 2225 California Street, NW, H.P.A. No. 11-472 (Feb. 13, 2013)).

{13} Id.

{14} See e.g. , 1922 Belmont Road, supra note 9, at 2.

-----