Don't Tear It Down, Inc. v. D.C. Dep't of Housing & Cmty. Dev.
- Title: Don't Tear It Down, Inc. v. D.C. Dep't of Housing & Cmty. Dev.
- Citation: 428 A.2d 369 (D.C. 1981)
- Decided Date: 06-Mar-81
Don’t Tear It Down, Inc. and the Georgetown Citizen’s Association appealed a decision and Order of the Mayor’s Agent authorizing demolition permits for the construction of a new electrical substation on PEPCO’s property in the Georgetown Historic District. The D.C. Court of Appeals affirmed the Mayor’s Agent decision in part, but remanded the issue of whether demolition of the site’s “North Building” was properly before the Mayor’s Agent.
- Historic Preservation Review Board—Jurisdiction:*
Petitioners challenged as unlawful the Joint Committee on Landmarks of the National Capital’s review of PEPCO’s proposed new electrical substation (the Joint Committee served as the Historic Preservation Review Board from 1978 until the Board was formally appointed in 1983). Petitioners argued that such review under the new DC Historic Landmark and Historic District Protection Act of 1978 after the Commission on Fine Arts’ mandatory review under the Old Georgetown Act of 1950 was unlawful. The Court held that the 1978 Act’s provisions for discretionary duplicative review of Georgetown properties pose no constitutional or preemption problems because “[F]ederal and local laws may coexist in the same area, and the local law may exact additional requirements which are not inconsistent with the Federal law.”
- Because both parties agreed that demolition of PEPCO’s North Building was not necessary for construction of its new electrical substation (deemed to be a project of special merit), the Court remanded the issue to the Mayor’s Agent.
- The Mayor’s Agent is not required to explain why he or she favored the testimony of one party over another, but is “required to make written findings of basic fact on each materially contested issue ... [which,] taken as a whole, must rationally lead to the conclusions reached by the agent; and each finding must be supported by evidence sufficient to convince reasonable minds of its adequacy.”
Special Merit / Necessary in the Public Interest:
- Petitioners conceded that PEPCO’s proposed construction of a new electrical substation was a project of special merit, but argued that the Mayor’s Agent improperly concluded that PEPCO’s plan was the only viable alternative necessary to construct the project and erroneously considered factors of delay and cost in consideration of the “necessary in the public interest” standard. The Court held that the Mayor’s Agent did not err in so considering and that the applicants need only consider all reasonable alternatives to demolition.
- The Court noted that “[r]easonableness must be imputed into each ‘necessary’ standard, and at hearing on each ‘special merit’ permit” but also remarked that developers may not simply choose the least expensive alternative.
The Advisory Neighborhood Council (ANC) is precluded from seeking judicial review of administrative proceedings. ANC 3A’s chairman could have had standing to seek judicial review of the Mayor’s Agent’s decision as an individual citizen, but could not later substitute himself for the ANC.
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