Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Dep’t of Housing & Cmty. Dev.

• Title: Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Dep’t of Housing & Cmty. Dev.
• Citation: 432 A.2d 710 (D.C. 1981)
• Decided Date: 29-May-81

Summary:

In this important early case, petitioners sought review of the Mayor’s Agent’s decision authorizing the issuance of a permit to raze the landmark Rhodes Tavern building on the basis that the proposed large-scale downtown office construction project was one of special merit. The D.C. Court of Appeals affirmed the Mayor’s Agent’s decision, finding no error on any contested ground.

Mayor’s Agent—Procedural:

• The Mayor’s Agent “in effect, is directed by statute to resolve the conflict between preservation and development objectives.”

• Petitioner contended that the Mayor’s Agent should have recused herself both because she was a D.C. employee and because the project at issue had public support from the Mayor and other city officials. The court held that absent either having the decision-maker be “recipient of ex parte communications from an advocate of one side of an issue or have personal interest of bias,” the court cannot conclude there was a denial of due process. The court also rejected the argument that the Mayor’s support for the project influenced his agent’s decision given that the decision was based on an extensive and complete record.

Special Merit—Balancing Test:

• In considering whether a particular project meets the special merit test, the Act implicitly requires the Mayor’s Agent to make an overall subjective test, to “balance the historical value of the particular landmark against the special merit of the proposed project in cases of demolition.”

• The court concluded that the Mayor’s Agent properly balanced the merits of the project against the damage to the city’s historic fabric, but noted that in any future demolition applications filed on the basis of special merit the Mayor’s Agent must “state with a higher degree of precision which historical values associated with a particular landmark or historic district were considered ... and whether these historical considerations outweigh ... the merits of that application.”

Special Merit / Necessary in the Public Interest / Demolition:

• “[D]emolition is necessary in order to construct a project of special merit whenever retention of the landmark on its original site becomes economically oppressive.”

• Developers must show all reasonable alternatives to demolition were considered.

• The court quoted with approval from Don’t Tear It Down v. Dep’t of Housing and Community Development, 428 A.2d 369, 380 (D.C. 1981), noting that “[r]easonableness must be imputed into the ‘necessary’ standard, and at the hearing on each ‘special merit’ permit, factors including but not limited to cost, delay, and technical feasibility become proper considerations for determining ‘necessary’ * Each of these factors has bearing on whether there are viable alternatives to demolition available, and the answer to this question determines necessary.”

Special Merit—Economic Considerations:

• In a footnote, the court made the following observation: “Although the Mayor’s Agent premised her finding of special merit in this case on ‘exemplary architecture,’ we note that the record also contains evidence with respect to the projected economic benefit to the city of the proposed development. Intervenor Carr testified, for example, that the District government stands to gain in excess of $2 million in tax revenues from development of the property site and that the project will create more than 2,000 permanent jobs, of which 50 percent will be in low- or moderate-income categories. This is another factor militating in favor of a finding of special merit, D.C. Code 1980 Supp., § 5-822(k), and is a proper consideration in reviewing the grant of a demolition permit to raze a historical landmark. See Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco, 106 Cal. App.3d 893, 901, 165 Cal. Rptr. 401, 405 (1980).” This footnote has been weakened by subsequent Mayor’s Agent cases and seems to go against the Act’s legislative history. “Factors which are common to projects are not considered as special merit.” See Nadine P. Winter, Chair of the D.C. Committee on Housing and Urban Development, Report on Bill 2-367, “The Historic Landmark and Historic District Protection Act of 1978,” at 6 (October 5, 1978).

Prior History:

Decision of the Mayor’s Agent, HPA Nos. 80-41, 80-42, 80-43, and 80-46 (February 11, 1980).

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