Gondelman v. D.C. Dep't of Corrections & Regulatory Affairs

• Title: Gondelman v. D.C. Dep't of Corrections & Regulatory Affairs
• Citation: 789 A.2d 1238 (D.C. 2002)
• Decided Date: 17-Jan-02

Summary:

In this important recent case, the petitioner sought judicial review of the Mayor’s Agent’s denial of his application for a curb cut and other alterations that would have allowed him to excavate and pave over a portion of his berm and front yard to construct a basement-level garage. The Court of Appeals affirmed the decision of the Mayor’s Agent (which included consideration of the D.C. Comprehensive Plan and an underlying rationale of the District’s historic preservation law, i.e., to protect against the continued “diminution of landscape features of historic districts”), and found the decision “neither unreasonable nor inconsistent with the Act.”

Alterations—Necessary in the Public Interest:

The Court noted that a petitioner’s “burden under Sec. 6-1105(f) is a heavy one.” To carry their burden in demonstrating that permits for alterations are “necessary in the public interest” as consistent with the purposes of the Act, petitioners must meet two statutory requirements: “First, under Sec. 6-1101(b)(1)(A) they must establish that their proposed alterations will ‘retain and enhance ... [historic] properties [in a manner] which contributes to the character of the historic district and which encourages the adaptation [of historic properties] for current use. Under this subsection it is insufficient to emphasize only enhancement to adapt a property for current use. Rather, the applicant must also demonstrate that the proposed alterations will retain and enhance the historic property so that it contributes to the historic district ... Second, under Sec. 6-1101(b)(1)(B), they must demonstrate that their proposed ‘alterations of [the] existing structure ... are compatible with the character of the historic district.’”

Consistent with the Purposes of the Act—Alterations:

To carry their burden in demonstrating that permits for alterations are necessary in the public interest as consistent with the purposes of the Act, as noted above, petitioners must demonstrate that the proposed alteration will both “retain and enhance ... [historic] properties [in a manner] which contributes to the character of the historic district and [which] encourages the adaptation [of historic properties] for current use.” The proposed alterations must also be “compatible with the character of the historic district.”

Alterations—Entire Site:

When considering the compatibility of proposed alterations with the character of the historic district, “given the definition of ‘alterations’ set forth in Sec. 6-1102(1) the Mayor’s Agent and the HPRB [Historic Preservation Review Board] are authorized to consider the entire site on which the structure sits, that is petitioners’ house as well as the land, including the berm.” As such, the HPRB acted within its authority when it made reference to the Comprehensive Plan and the history of the district in its analysis of petitioner’s application to partially excavate and pave his property’s berm.

Comprehensive Plan—Landscapes

The Court noted that “it was neither unreasonable nor legal error for the Mayor’s Agent and the HPRB to reference the section of the District’s Comprehensive Plan, which mandates that ‘landscaped green space on publicly owned, privately maintained front and side yards in historic districts and on historic landmarks should be preserved’ because that section reflects, in part, the policies and objectives of the District’s historic preservation law.”

Curb Cuts—Landscapes

• The Court noted that one “rationale for adopting the [Historic Preservation] Act was to stem the tide towards the diminution of the landscape features of historic districts in the District of Columbia, which would include the imposing of strict controls, which disfavors installing landscape reducing curb cuts, driveway installations, and berm removals in historic districts, as well as to bring some order and consistency to the architecture of the historic district.”

• The Mayor’s Agent had noted that issuance “of this application would ... very likely create an atmosphere in which multiple petitions for additional curb cuts, driveways, and on-site property parking will almost certainly follow.”

Mayor’s Agent:

When considering the compatibility of proposed alterations with the character of the historic district, the Mayor’s Agent and the Historic Preservation Review Board “are authorized to consider the entire site on which the structure sits.” As such, the Mayor’s Agent acted within his authority when he made reference to the Comprehensive Plan and the underlying historic preservation rationale against the “diminution of landscape features of historic districts” in his analysis of petitioner’s application to partially excavate and pave his property’s berm.

Standard of Review:

• Citing Kalorama Heights Ltd. Partnership v. DCRA, 655 A.2d 865, 868 (D.C. 1995), the Court noted that it “must uphold the Mayor’s Agent’s decision if the findings of fact are supported by substantial evidence in the record considered as a whole and the conclusions of law flow rationally from these findings.”

• The Court also noted, again citing Kalorama Heights, 655 A.2d at 868), that “when ... the Mayor’s Agent’s decision is based on an ‘interpretation of the statute and regulations it administers, that interpretation will be sustained unless shown to be unreasonable or in contravention of the language of the legislative history of the statute.”

• The Court cited Kalorama Heights, 655 A.2d at 868-69, for the proposition that “in making the necessary findings, a Mayor’s Agent is ‘not required to explain why [he or she] favored one witness’ testimony over another, or one statistic over another.”

• Citing Committee for Washington’s Riverfront Parks v. Thompson, 451 A.2d 1177, 1193 (D.C. 1982), the Court did observe, however, that “some indication for the reason for rejecting expert, as opposed to lay, testimony is required.”

• The Court of Appeals upheld the findings of the Mayor’s Agent, concluding that: (1) the findings were based on substantial evidence including the Historic Preservation Review Board staff report, the HPRB’s recommendation, and expert testimony; and (2) there were indications in the record showing why the Mayor’s Agent did not rely on the testimony from petitioner’s experts.

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