*Title: Donnelly Assocs. v. D.C. Historic Preservation Review Bd.
*Citation: 520 A.2d 270 (D.C. 1987)
*Decided Date: 14-Jan-87
Petitioner sought review by the D.C. Court of Appeals of the Historic Preservation Review Board’s (HPRB) designation of petitioner’s properties as historic landmarks. Finding neither a statutory nor a constitutional requirement that HPRB run landmark designations pursuant to the contested case provisions of the D.C. Administrative Procedures Act (APA) [currently codified at D.C. Code Ann. § 2-509 (2001)], the Court concluded that it lacked jurisdiction to hear the appeal under the APA’s judicial review provisions [currently codified at D.C. Code Ann. § 2-510 (2001)].
*Historic Landmark—Designation / Due Process*
The due process clause of the Constitution does not compel the requirement that the Historic Preservation Review Board run landmark designation hearings as “contested cases” as defined by the D.C. Administrative Procedure Act [currently codified at D.C. Code Ann. § 2-509 (2001).] In assessing what process was due to the petitioner to protect his property interests, the Court applied the three-prong balancing test established in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), requiring the Court to first “examine the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” While recognizing that designation can sometimes “cause substantial diminution of land value and substantial loss of expected revenue,” the Court noted that the Act already contains provisions that protect owners against takings. Moreover, the Court concluded that the “Board’s inquiry will seldom involve issues of fact that [additional procedural protections—namely] cross-examination will help to resolve,” so that additional safeguards would not provide much additional protection. Finally, the Court found that requiring cross-examination could serve merely to frustrate decision-making and thus run against the public interest by running up administrative costs.
*Historic Preservation Review Board—Procedural*
Based on the plain meaning of the term “formal” and then-current Historic Preservation Review Board regulations, the Court of Appeals concluded that “the established, generally acceptable method of issuing a final decision and providing notice of it was by mailing a written decision to the parties,” and that the “formal” notice that triggers the time in which potential petitioners may appeal Board decisions in this case meant “written notice of a written decision.”
*Judicial review of administrative proceedings in the D.C. Court of Appeals is limited to “contested cases” as defined by the D.C. Administrative Procedures Act. See D.C. Code Ann. § 2-510 (2001).
*The “contested case” provisions of the D.C. Administrative Procedures Act, see D.C. Code Ann. § 2-509 (2001), describe “‘trial type hearing[s] where such [are] implicitly required either by the organic act or constitutional right.’” Citing Chevy Chase Citizens Association v. District of Columbia Council, 327 A.2d 310, 314 (D.C. 1974). Accordingly, the D.C. Court of Appeals uses a two-part analysis to determine whether it has jurisdiction over administrative appeals: “‘the first obstacle . . . is that an administrative hearing must be either statutorily or constitutionally compelled; the second, that such a hearing must be adjudicatory as opposed to legislative in nature.’” Citing W.C. & A.N. Miller Development Company v. District of Columbia Zoning Commission, 340 A.2d 420, 422 (D.C. 1975) (en banc).
*Because neither the Historic Preservation Act nor the due process or takings clauses of the U.S. Constitution requires the Historic Preservation Review Board to hold landmark designation hearings as “contested cases” as defined by the D.C. Administrative Procedures Act, the D.C. Court of Appeals lacked jurisdiction to hear the case. See D.C. Code Ann. §§ 2-509, 510 (2001).
*Takings / Unreasonable Economic Hardship:*
The Court of Appeals found that the Act contains explicit procedural protections against the permanent taking of property—specifically the provisions that require the Mayor to issue permits when failure to do so will result in unreasonable economic hardship to the owner. Thus, the Court concluded that “any permanent deprivation will not be so serious as to constitute a taking, otherwise the owner will be entitled to a demolition permit” and that an owner “will always retain at least a ‘reasonable alternative economic use’ for the property.” Citing 900 G Street Associates v. Department of Housing & Community Dev., 430 A.2d 1387, 1390 (D.C. 1981).
The types of law that can trigger the contested case requirement have been broadened since Donnelley was decided. The Donnelley Court noted in dictum that, had HPRB’s regulations required “trial-type” hearings, “the contested case proceeding would be required ‘by law’ and we would treat it as such.” Donnelley, at 277, citing Palisades Citizens Association, Inc. v. D.C. Zoning Commission, 368 A.2d 1143, 1147 (D.C. 1977). Since Donnelley was decided, the Court of Appeals has broadened the scope of what constitutes the type of “law” that can require “trial-type” proceedings to include “non-legislative but nonetheless binding enactment[s],” such as validly-promulgated agency regulations and executive orders. J.C. & Associates, at 304, citing Communications Workers of America, Local 2336 v. District of Columbia Taxicab Comm'n, 542 A.2d 1221 at 1223 n.7 (D.C. 1988). Thus, should HPRB decide to write this requirement into its regulations at some point, it seems that J.C. & Associates would bind them to their regulations.