HPA No. 2009-380 (In re. Takoma Theatre)

• HPA Number: 2009-380
• Case Name: In the Matter of: the Application of Milton McGinty to demolish 6833 4th Street NW Washington, D.C. 2001
• Location of Property: Square 3280, Lot 820
• Date of Decision: 05/21/10 (Harriet Tregoning, Mayor's Agent for Historic Preservation)
• Type of Case/Type of Permit Sought: Demolition and construction
• Disposition: Denied
• Date of Case Summary: 07/28/11

Summary of Decision:

Milton McGinty ("Applicant") filed an application to demolish the Takoma Theatre ("Theatre") constructed in 1923 and located at 6833 4th Street N.W. The Theatre is situated in the Takoma Park Historic District and is subject to the Historic Landmark and Historic District Protection Act of 1978; D.C. Official Code § 6-1101 et seq. (2001) ("Act"). Under the Act, the Mayor's Agent may disallow permit issuance unless "it is necessary in the public interest," or if failure to issue a permit will result in "unreasonable economic hardship" to the owner. D.C. Official Code § 6-1104(e). The Applicant argued 1) that the demolition of the Theatre in order to construct a residential building is necessary in the public interest because it qualifies as a project of special merit, and 2) that failure to grant the permit would result in unreasonable economic hardship for the Applicant. After reviewing the evidence submitted by the Applicant and taking into consideration the issues and concerns of the affected Advisory Neighborhood Commission and the report by the Historic Preservation Review Board, The Mayor's Agent denied the permit to demolish the Theatre.

Special Merit:

The Mayor's Agent reasoned that the proposed residential structure that would replace the Theatre does not qualify as a special merit project because the Applicant failed to prove, pursuant to Section 3 (11) of the Act, that the building would significantly benefit the District of Columbia "by virtue of [1] exemplary architecture, [2] specific features of land planning, or [3] social or other benefits having a high priority for community services." D.C. Official Code § 6-1102 (11). The Mayor's Agent relied on the opinion in Kalorama Heights Ltd. Partnership v. District of Columbia Dept. of Consumer and Regulatory Affairs, 655 A.2d a865 (D.C. 1995), where the court declared that "projects featuring benefits to the occupants of new buildings (such as the purchasers of condominiums), coupled with general benefits to the District (such as increased tax revenue or increased housing stock), are not 'special' enough to come within the clause identifying 'special merit' as 'social or other benefits'." Id. , at 870. The Mayor's Agent held that there was insufficient evidence in the record to support the claim that the building embodies "exemplary architecture" or that the new residential development would provide for "social or other benefits having a high priority for the community services."

Unreasonable Economic Hardship:

The Mayor's Agent concluded that the failure to grant the demolition permit would not lead to the Applicant's unreasonable economic hardship because the Applicant failed to demonstrate that all reasonable alternatives to demolition have been considered and that these alternatives are not viable. Because the Applicant could renovate and continue to use the property as a Theatre or for other purposes, he would be left with "alternative economic use for the property," 900 G. Street Associates v. Department of Housing and Community Development, 430 A.2d 1387, 1390 (D.C., 1981). The Mayor's Agent argued that according to Kalorama, that a property has diminished value after a denial of a demolition permit is immaterial so long as there is a reasonable alternative economic use for the Property.

Mayor's Agent - Procedural:

• The Mayor's Agent stated that Applicant bears the burden of proof to establish that the proposed demolition would allow for a project that will significantly benefit the District of Columbia or the community and thus be in the public interest.

• The Mayor's Agent is required by section 13 of the Comprehensive Advisory Neighborhood Commission Reform Act of 2000, D.C. Code § 1-309.10, to give "great weight" to the issues and concerns of the affected Advisory Neighborhood Commission ( "ANC").

• The Mayor's Agent stated that recommendation pursuant to the Historic Preservation Review Board referral must be considered. See D.C. Code § 6-1104(b).

• The Mayor's Agent received request for party status to oppose the demolition application and since no objections were made, all requests were granted.

Consistent with the Purposes of the Act:

The Mayor's Agent concluded that Applicant has not satisfied his burden of proof that the issuance of a demolition permit to raze a contributing resource to the Takoma Park Historic District, known as the Takoma Theatre, is necessary in the public interest or that failure to issue a permit will cause unreasonable economic hardship to the Applicant, pursuant to § 5 of the Historic Preservation Act, D.C. Official Code § 6-1104.

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