Bowser v. Dupont East Civic Action Assoc. Dupont East Civic Action Assoc. v. D.C. Office of Planning

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CV-0884
MAYOR MURIEL BOWSER, et al., APPELLANTS,
V.
DUPONT EAST CIVIC ACTION ASSOCIATION, et al., APPELLEES.
Appeal from the Superior Court
of the District of Columbia
(2019-CA-004130-B)
(Hon. Yvonne Williams, Trial Judge)
————
No. 20-AA-0693
DUPONT EAST CIVIC ACTION ASSOCIATION, et al., PETITIONERS,
V.
D.C. OFFICE OF PLANNING, HISTORIC PRESERVATION OFFICE, MAYOR’S AGENT FOR
HISTORIC PRESERVATION, RESPONDENT,
and
PERSEUS TDC, et al., INTERVENORS.
On Petition for Review of an Order of the
District of Columbia Mayor’s Agent for Historic Preservation
(2019-HPA-000497)
2
(Argued April 26, 2023 Decided August 24, 2023)
Graham E. Phillips, Deputy Solicitor General, with whom Brian L.
Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile,
Solicitor General, and Ashwin P. Phatak, Principal Deputy Solicitor General, were
on the briefs, for appellants.
Michael D. Hays, with whom Barry Coburn and Marc Eisenstein were on
the briefs, for appellees.
Gary M. Ronan, with whom Andrew Zimmitti and Joel E. Antwi were on the
briefs, for Perseus TDC as amicus curiae in support of appellants.
Before EASTERLY and DEAHL, Associate Judges, and FISHER, Senior Judge.
DEAHL, Associate Judge: These consolidated appeals concern the ongoing
construction of an apartment building behind the Scottish Rite Temple—a historic
landmark located at 1733 16th Street NW. The Temple occupies roughly half of a
single record lot that spans an entire block and straddles the 14th and 16th Street
Historic Districts, and that lot must be subdivided if this project is to proceed. The
developer, Perseus TDC, sought approval for this subdivision from the Mayor’s
Agent for Historic Preservation, who approved its application over the opposition of
several neighbors and neighborhood organizations, including the Dupont East Civic
Action Association, or DECAA. Case No. 20-AA-0693, which we refer to as the
subdivision appeal, is DECAA’s challenge to the Mayor’s Agent’s approval of this
subdivision.
3
In addition to opposing Perseus’s subdivision application, DECAA filed its
own application with the Historic Preservation Review Board, or HPRB, to extend
the boundary of the Temple landmark to encompass the entire block, including the
land where the apartment building is being constructed. As part of its consideration
of this application, the HPRB determined that the landmark’s site boundaries had
never actually been delineated. Accordingly, in its decision denying DECAA’s
request, the HPRB “t[ook] the opportunity presented by this application to clarify
and confirm” that the boundaries of the Temple landmark are coterminous with the
taxation lot occupied by the Temple at the time of its construction and for many
decades thereafter—i.e., the western portion of the present-day record lot, outside
the footprint of the apartment building project. DECAA filed suit challenging this
decision, and the Superior Court ultimately granted its motion for summary
judgment after concluding that the HPRB acted arbitrarily and capriciously in
defining the Temple landmark’s boundaries. Case No. 22-CV-0884, which we refer
to as the boundary appeal, is the District’s appeal from this judgment.
In both cases, we agree with the District. As to the subdivision appeal, the
Mayor’s Agent found that subdividing the property was consistent with the purposes
of the District’s historic preservation statute. Because that finding was supported by
substantial evidence in the administrative record, we affirm the Mayor’s Agent’s
4
decision. As to the boundary appeal, the HPRB’s finding that the Temple
landmark’s boundaries had never been established and should be set as coterminous
with the taxation lot occupied by the Temple at the time of its construction was
neither arbitrary nor capricious, and the ruling was supported by substantial
evidence. The Superior Court thus erred in vacating the HPRB’s decision, and we
reverse its order granting summary judgment to DECAA.
I.
The Scottish Rite Temple
Designed by famed architect John Russell Pope, the Scottish Rite Temple was
constructed to serve as the headquarters for the Supreme Council of the Scottish Rite
of Freemasonry, 33rd Degree, Southern Jurisdiction. Upon its completion in 1915,
the Temple stood on Assessment and Taxation (A&T) Lot 800, which was
comprised of record lots 86 through 100, 1 running along the western corner of 16th
and S Streets NW. At that time, the Temple was “hemmed in by rowhouses and
1
A record lot is “a lot recorded on the records of the Surveyor of the District
of Columbia.” 11-B D.C.M.R. § 100.2. For convenience, the owner of multiple
adjacent record lots can consolidate them into an A&T lot, which allows for the
payment of a single tax bill for the entire parcel. See 9 D.C.M.R. § 352.3.
6
Comm. on Landmarks of Nat’l Cap., 449 A.2d 291, 292 & n.4 (D.C. 1982). As one
of its first acts, the Joint Committee published Landmarks of the National Capital:
Preliminary List, a catalog of structures and places of significant historic or aesthetic
value. This list included the Temple as a Category III landmark—i.e., a landmark
“of value which contribute[s] to the cultural heritage or visual beauty and interest of
the District of Columbia and its environs, and which should be preserved, or
restored, if practicable.” As with all Category III landmarks, the Joint Committee
identified the Temple only by reference to its approximate address (“16th & S St.,
N.W.”); its list did not specify precise landmark boundaries for the Temple. As
noted, the Temple at that time still sat on A&T Lot 800, the same taxation lot it had
occupied since its construction in 1915.
In 1966, shortly after the Joint Committee added the Temple to its preliminary
list of District landmarks, Congress passed the National Historic Preservation Act,
Pub. L. No. 89-665, 80 Stat. 915 (codified as amended at 54 U.S.C. §§ 300100 et
seq.). Among its various provisions, this statute authorized grants to states that
prepared comprehensive historic preservation plans. Id. § 102, 80 Stat. at 916. The
District delegated responsibility for preparing its plan to the Joint Committee, see
A&G Ltd., 449 A.2d at 292, which in 1973 published an updated list and map of “all
the designated landmark buildings, places, and objects which comprise the District
7
of Columbia’s Inventory of Historic Sites.” As with its preliminary list, the Joint
Committee once again identified landmarks by their approximate addresses without
any reference to their precise boundaries. This updated list was then incorporated
into the District’s statewide preservation plan, which was published the following
year.
Meanwhile, the Masons had continued with their property acquisitions,
including purchasing the adjacent carriage house and obtaining the closure of the
public alley separating it from the Temple. The carriage house was located on its
own A&T lot (808), which in 1976 the Masons combined with A&T Lot 800 and
their other property holdings along S Street to create A&T Lot 820. This new
taxation lot encompassed the property located within the western two-thirds of the
block, as depicted below:
8
The following year, in 1977, the Joint Committee added the “Sixteenth Street
Historic District” to the District’s inventory of historic sites, defining it to include
the buildings on both sides of 16th Street between Scott Circle and Florida Avenue.
Unlike its treatment of Category III historic landmarks, the Joint Committee
identified this historic district by reference to its specific boundaries, which it set
using the rear lot line of every then-existing lot fronting 16th Street along this
roughly 14-block span (including, evidently, the boundaries of both record lots and
taxation lots). As a result, the historic district included all of A&T Lot 820, including
the Masons’ new property acquisitions that had been consolidated into this taxation
lot the year prior.
Unlike the preliminary 1964 list, inclusion in the Joint Committee’s updated
catalog of historic sites triggered additional legal protections, including those set
forth in the Historic Landmark and Historic District Protection Act, commonly
called the Preservation Act, D.C. Code §§ 6-1101 to -1115. That statute placed
various restrictions on the alteration, demolition, and subdivision of historic
landmarks and other properties within historic districts, defined in reference to the
D.C. Inventory of Historic Sites. Id. § 6-1102. As of 1979, when the statute took
effect, that Inventory included both: (1) the Temple itself, which was listed by
address only; and (2) the 16th Street Historic District, defined in relation to property
9
lines and which included all of A&T Lot 820. The Preservation Act also authorized
the creation of the HPRB, which in 1983 assumed the functions of the Joint
Committee. See Donnelly Assocs. v. D.C. Hist. Pres. Rev. Bd., 520 A.2d 270, 271
& n.2 (D.C. 1987).
In the following decades, the Masons continued with their property
acquisitions, and by the early 1990s they had purchased and razed the last of the
rowhouses along 15th Street (the carriage house, however, remains to this day). In
2011, they obtained the closure of the remaining portion of the alley running through
the block, and in 2013 they merged all of their holdings to create a new record lot—
Lot 108—that spanned the entire width of the block from 15th to 16th Street, and
was bounded by S Street to the north, and the alley to the south. The western two-
thirds of this lot (i.e., the former A&T Lot 820) remains within the 16th Street
Historic District, while the eastern portion was included in the 14th Street Historic
District when it was established in 1994.
Perseus’s Subdivision Application
About five years ago, the Masons decided to construct an apartment building
on the eastern half of their property, hoping to use the money from this development
to fund renovations to the Scottish Rite Temple. Because they had merged their
10
property holdings into one record lot, and the District’s zoning regulations generally
limit record lots to a single principal structure, see 11-C D.C.M.R. § 302.2, this plan
required subdividing the property. Subdivisions of properties within historic
districts must generally be approved by the Mayor’s Agent for Historic Preservation.
See Friends of McMillan Park v. D.C. Mayor’s Agent for Hist. Pres., 207 A.3d 1155,
1161 (D.C. 2019) (“FOMP II”). The Mayor’s Agent, in turn, refers subdivision
applications to the HPRB for its recommendation. D.C. Code § 6-1106(b). The
HPRB, with the assistance of the Historic Preservation Office (HPO), advises the
Mayor’s Agent on an application’s “compatibility” with the purposes of the
Preservation Act. Id. §§ 6-1102(6A), -1103(c)(1). The Mayor’s Agent then makes
a final determination, which is appealable to this court. Id. § 6-1112(b).
Perseus TDC, the developer spearheading the project, submitted a conceptual
design of the apartment building to the HPRB for its review. Conceptual design
review is an optional (though highly encouraged) process for seeking the HPRB’s
advice on whether a project will likely comply with the Preservation Act before
formally applying for approval. Id. § 6-1108(b). The HPO reviewed Perseus’s
conceptual design, which it noted would require a subdivision, and concluded that it
was generally appropriate. Its report described the eastern half of the record lot as
“historically unrelated to the [T]emple” and stated that this property was “not part
11
of the [T]emple landmark and not recognized as contributing to the historic districts
in which it is located.” Based on this recommendation, the HPRB unanimously
approved the conceptual design. The following year, Perseus submitted its final
application to subdivide the property essentially along its 1915 border (i.e., the
eastern edge of former A&T Lot 800). The HPRB unanimously recommended the
application’s approval (subject to several minor design tweaks).
Because several neighboring property owners and neighborhood associations,
including DECAA, opposed a subdivision of the Temple property, the Mayor’s
Agent held a hearing on Perseus’s application. See 10-C D.C.M.R. § 3000.1. At the
hearing, both supporters and opponents of the project offered expert witnesses who
opined on the subdivision’s consistency with the Temple’s historic significance. The
Mayor’s Agent also received various public statements in support of and in
opposition to the project. Among these was one from the local Advisory
Neighborhood Commission, or ANC, which supported the subdivision and
development.
After considering this evidence, the Mayor’s Agent issued an order approving
Lot 108’s subdivision. The Preservation Act authorizes the subdivision of a historic
landmark or a lot within a historic district upon a finding that the subdivision is
12
“necessary in the public interest,” which is defined to mean that it is “consistent with
the purposes of [the Act].” D.C. Code §§ 6-1106(e), -1102(10). Describing the
arguments in favor of approving the subdivision as “straightforward and
persuasive,” the Mayor’s Agent identified four reasons for authorizing the requested
subdivision. First, because the eastern half of Lot 108 did not contribute to the
Temple’s historic significance, severing that property from the Temple would result
in no preservation loss. Second, the Mayor’s Agent found that the proposed
subdivision would produce meaningful historic preservation gains “because it
facilitates a ground lease to provide a revenue stream that will finance much-needed
restorations to the Temple,” a structure of historic significance. Third, the
subdivision was compatible with the character of both the 14th and 16th Street
Historic Districts, as it would retain the landmark site intact while “mak[ing] two
lots more consistent [with] the size of other lots in both historic districts.” Fourth,
permitting the development of the eastern portion of Lot 108 would improve the
character of the neighborhood, because letting it persist as vacant space would be
incompatible with the surrounding historic districts. The Mayor’s Agent further
noted the support of the HPRB, to which he generally gives deference, as well as
that of the local ANC, whose views are entitled to “great weight.” D.C. Code
§ 1-309.10. DECAA now challenges this decision in our court.
13
DECAA’s Landmark Boundary Application
Several months after the HPRB approved Perseus’s conceptual design,
DECAA submitted an application to the Board to “amend the existing [Temple]
landmark” boundaries. Claiming that the undeveloped land on the eastern side of
the lot had “enhanced magical sightlines to the magnificent Temple,” the application
requested that the landmark’s boundaries be extended “to include all of the land
behind the Temple”—i.e., the entirety of present-day Lot 108. Because the District’s
zoning regulations impose significant hurdles for work affecting historic landmarks,
see, e.g., 10-C D.C.M.R. § 303.1, defining the Temple landmark’s boundaries in this
way would have likely derailed construction of the planned apartment building (as
was DECAA’s avowed goal).
The HPRB referred DECAA’s application to the HPO, which in April 2019
issued a report recommending that it be denied. The HPO’s report reasoned that
“[t]he land that makes up the expanded boundaries has not been shown to have
played a significant role in the history or events tied to the temple,” and further noted
that it was not even acquired by the Masons until well after the Temple’s period of
historical significance (i.e., the early decades of the 20th century). However, in this
report recommending against an expansion of the Temple landmark’s boundaries,
14
the HPO described the landmark’s present boundaries as consisting of the former
A&T Lot 820 that was first created in 1976. That lot was “approximately 2/3 of
present-day Lot 108,” and was considerably larger than former A&T Lot 800
(compare the two depictions above), which the Temple sat upon from its 1915
construction through 1976. When this HPO report was issued, DECAA declared
victory, telling its supporters that, because these existing landmark boundaries
overlapped with the footprint of the proposed apartment building, “Perseus TDC will
not be able to build that building they had planned.”
The parties differ on exactly what happened next. According to the District,
the HPO “continued to study the history of the site” and eventually concluded “that
it was ‘an error’ to have treated Lot 820 as the Temple’s existing boundary.” Having
identified this error, the HPO took the “concededly unusual step” of issuing a new
report the following month. Contrary to its April 2019 report, this revised report
explained that the Temple landmark’s present boundaries were actually undefined,
as when the site was originally listed by the Joint Committee, it was merely identified
by address. Accordingly, the HPO recommended using DECAA’s application as an
“opportunity” to “clarify and confirm” the landmark’s existing boundaries, which it
described as “the extent of the property at the time of the Temple’s completion in
1915, which was [A&T] Lot 800”—in other words, the western half (rather than two
15
thirds) of the present-day record lot, outside the footprint of the proposed apartment
building.
DECAA puts a more nefarious spin on things. By its telling, after it became
clear that the boundary lines identified in the April 2019 report would disrupt the
developer’s construction plans, Perseus and its allies began pressing the HPO to
change its recommendation. “Kowtow[ing]” to this pressure campaign, the head of
the HPO removed the staffer who had prepared the April 2019 report from working
on DECAA’s application and took the “unprecedented” step of preparing a new
report himself. 2 As noted, that revised report recommended setting the Temple
landmark’s boundaries to correspond with former A&T Lot 800, which DECAA
claims was selected not on the basis of a historic evaluation but rather to avoid
triggering any additional permitting requirements, thereby paving over a major
hurdle to Perseus’s project.
This revised report was submitted to the HPRB, which held a public hearing
in May 2019. After hearing testimony from many of the project’s supporters and
2
At oral argument, the District expressly denied that this staffer had been
removed from working on DECAA’s application, accurately noting that she testified
in favor of the HPO’s revised recommendation at the HPRB hearing.
16
opponents (including a DECAA representative), the Board publicly deliberated and
then voted unanimously to adopt the HPO’s recommendation, clarifying the Temple
landmark’s existing boundaries and rejecting DECAA’s application to expand them.
In its subsequent written report, the HPRB further justified this decision, its
reasoning closely tracking that of the HPO. In a nutshell, it reasoned that the Temple
was constructed upon Lot 800 and then situated upon that lot for more than sixty
years, both during its period of historical significance and when it was first entered
in the preliminary list of Landmarks of the National Capital in 1964, so that former
Lot 800 demarcated the landmark’s relevant boundaries. Unlike with the
subdivision application, the HPRB’s decisions regarding an application to amend a
historic landmark are final and not subject to review by the Mayor’s Agent. D.C.
Code § 6-1103(c)(3); see 10-C D.C.M.R. § 400.1 (Mayor’s Agent has authority to
make the “final determination on the approval or denial of applications for
demolition, alteration, new construction, and subdivision subject to the Historic
Protection Act,” not landmark designation or boundary-line disputes).
That summer, DECAA filed suit in Superior Court challenging the HPRB’s
boundary decision as procedurally and substantively unlawful under the
Preservation Act, D.C. Administrative Procedures Act, and the Constitution’s Due
Process and Equal Protection Clauses. The Superior Court initially dismissed this
17
suit for lack of jurisdiction, but we reversed, concluding that most of DECAA’s
challenges were in fact justiciable before the Superior Court. See Judgment, Dupont
East Civic Action Ass’n v. Bowser, No. 20-CV-0315, at 2-3 (D.C. Feb. 15, 2022).
On remand, the Superior Court largely sided with DECAA on the merits,
granting its motion for summary judgment on the majority of its claims.
Substantively, the court concluded that contrary to the HPO’s revised report, “there
was no ambiguity” that the Temple landmark’s boundaries were the same as the 16th
Street Historic District’s boundaries (i.e., Lot 820), and that any other possibility
“belies explanation.” As such, the HPRB’s conclusions to the contrary were not
supported by substantial evidence and were arbitrary and capricious. Procedurally,
the court found that even if the HPRB had the authority to modify those existing
boundary lines, it was inappropriate to do so in response to DECAA’s application,
which sought only the expansion of the landmark’s boundaries. When adjudicating
this application, therefore, “[t]he HPRB only had the authority to expand the
boundary or not modify it at all.” Finally, on DECAA’s constitutional claims, the
trial court concluded that the HPRB’s action had denied DECAA equal protection
of the laws. Specifically, the court found that the Joint Committee had set Lot 820
as the Temple’s boundaries when it included that entire plot of land within the 16th
Street Historic District in 1977. And the HPRB’s “decision to disregard the Joint
18
Committee’s designation” when adjudicating the application was different than its
treatment of any other application, and that this differing treatment lacked any
rational basis.
Given its legal conclusions, the court issued an injunction that temporarily
stopped work on the portions of the apartment building that fell within former A&T
Lot 820. The District now appeals this result, with Perseus supporting the District
as amicus and seeking dissolution of the trial court’s injunction. The day after
hearing oral argument in these appeals, we granted Perseus’s motion to dissolve the
Superior Court’s injunction so as to permit work to resume on the relevant portions
of Lot 820 (outside of former Lot 800). See Order, Bowser v. Dupont East Civic
Action Ass’n, No. 22-CV-0884 (D.C. April 27, 2023).
II.
We begin with the District’s challenge in the boundary appeal. Our review of
the trial court’s order is de novo. U.S. Bank Tr., N.A. v. Omid Land Grp., LLC, 279
A.3d 374, 377 (D.C. 2022). After conducting an independent review of the record,
“[w]e apply the same standard the trial court was required to apply in considering
whether the motion for summary judgment should be granted.” Id. That requires us
to assess whether DECAA has carried its burden of establishing that the HPRB’s
19
actions were “arbitrary, capricious, or an abuse of discretion or contrary to law.” In
re A.T., 10 A.3d 127, 135 (D.C. 2010). Summary judgment is appropriate only if
there are no genuine issues of material fact and the movant can show they are entitled
to judgment as a matter of law. Super. Ct. Civ. R. 56(a).
The District argues in this appeal that the Superior Court erred by granting
summary judgment, as the HPRB decision was not arbitrary or capricious, but
instead well-reasoned, backed by substantial evidence, and procedurally proper. We
agree. The HPRB’s finding that the Temple landmark’s boundaries had never been
formally set was supported by substantial evidence in the record, and so the court
should have deferred to that finding. And because those boundaries were undefined
when DECAA submitted its application to amend them, there was nothing arbitrary
or procedurally improper about the HPRB using DECAA’s application as an
opportunity to formally demarcate them. We address each of these points in turn.
A.
The crux of the trial court’s order was its finding that “the Temple landmark
was—and is—defined by the boundaries of what was [A&T] Lot 820.” Recall that
the HPRB had concluded the opposite, explaining in its decision that when the
Temple was added to the Joint Committee’s 1964 preliminary list of historic
20
landmarks in the District, it was identified merely by its name and address. While
some properties on that list were later nominated for inclusion on the National
Register of Historic Places—a process that required the Joint Committee to identify
specific site boundaries—the Temple was not. Accordingly, when the Joint
Committee’s list was incorporated into the D.C. Inventory of Historic Sites after the
passage of the Preservation Act, the Temple landmark’s exact boundaries remained
undefined. The trial court rejected this finding, reasoning that the landmark’s
boundaries were made clear when the Joint Committee included all of A&T Lot 820
in the 16th Street Historic District in 1977, and that “it belies explanation what else
would have been part of the Historic District except the Temple landmark.”
Contrary to the Superior Court’s view, we conclude that the HPRB’s
reasoning was not only rational, but quite persuasive. Historic districts and historic
landmarks are distinct entities subject to separate designation procedures, and the
fact that all of Lot 820 was included within the 16th Street Historic District—
composed of many non-landmarks—says next to nothing about the landmark’s
appropriate boundaries. The Joint Committee when drawing the boundaries of the
16th Street Historic District simply had no cause to demarcate the Temple’s
landmark boundaries. See, e.g., 10-C D.C.M.R. § 200.2 (“The [Preservation] Act
protects historic landmarks and historic districts differently during the designation
21
process.”). This is why some historic landmarks are located entirely outside of
historic districts, and similarly why historic districts often include many properties
that are not themselves landmarks. Indeed, as the District points out, the 16th Street
Historic District itself cuts straight through the boundaries of another historic
landmark (the Carnegie Institution Administration Building), belying any notion that
the Joint Committee intended the borders of the district to delineate the boundaries
of the landmarks it encompassed. It seems, as the District posits, that the historic
district was drawn to include every then-existing lot (both record and taxation)
fronting the relevant stretch of 16th Street, including the then-recently formed A&T
Lot 820. We see no support for the trial court’s apparent view that in drawing the
historic district the Joint Committee designated landmark boundaries.
The trial court further erred by apparently giving weight to the fact that “there
is no evidence that the Historic District and Temple landmark had different
boundaries behind the Temple landmark.” There was in fact extensive evidence to
that effect. But more importantly, courts “are to presume the validity of agency
action,” and this is especially true where an agency is “draw[ing] heavily upon its
expertise.” Kamit Inst. for Magnificent Achievers v. D.C. Pub. Charter Sch. Bd., 55
A.3d 894, 899 (D.C. 2012) (citations omitted); see also Bradford Nat’l Clearing
Corp. v. Sec. & Exch. Comm’n, 590 F.2d 1085, 1104 (D.C. Cir. 1978) (“[I]n
22
reviewing the resulting decisions while not sharing that expertise courts typically
accord agency conclusions considerable respect.”). It was thus DECAA’s obligation
in this suit to prove that the historic landmark and district in fact shared a boundary,
not the District’s to prove that they did not. In other words, even if there were a lack
of clear evidence on this point, that would cut in favor of deferring to the HPRB’s
boundary decision, and it would not be a basis for vacating it.
Departing from the trial court’s reasoning, DECAA pivots to an argument that
the Temple landmark’s boundaries are coterminous with A&T Lot 820 because that
is the lot the Temple sat upon in 1979, when the District’s Historic Preservation Act
took effect and created the D.C. Inventory of Historic Sites (which included the
Temple). Essentially, it reasons that the Preservation Act defines the term “historic
landmark” as including “a building . . . and its site . . . [l]isted in the District of
Columbia’s inventory of historic sites.” D.C. Code §-6-1102(6)(B) (emphasis
added). And when that statute took effect in 1979—which DECAA maintains is
what created the D.C. Inventory—A&T Lot 800 no longer existed, having already
been incorporated into the larger Lot 820. Thus, DECAA argues, the only “site” that
could have been associated with this landmark at the time of its addition to the D.C.
Inventory was A&T Lot 820, which effectively became the Temple landmark’s
boundaries by operation of law.
23
We are similarly unpersuaded by DECAA’s argument. Even accepting the
premise that the Preservation Act requires that landmarks be associated with a
specifically defined “site,” the record contains no support for DECAA’s claim that
these sites are necessarily coterminous with the tax lots the landmarks were situated
upon when they entered the D.C. Inventory. That is no doubt “commonly” the case
and perhaps it is a “reasonable [starting] assumption,” as DECAA maintains, but
there is no reason to think as a matter of law that it is invariably true. To be sure, in
many instances, landmarks sit on the same lot from their construction to the present
day, making their present property lines a useful rule-of-thumb when determining
the landmark’s site boundaries. But in other cases—such as here—property owners
may reconfigure their land holdings after a landmark’s period of historic significance
but before its addition to the D.C. Inventory, enlarging or shrinking them for reasons
entirely unrelated to the site’s history. This is particularly true when it comes to
taxation lots, which are assembled by the property owners purely as a matter of
administrative convenience and rarely, if ever, as a reflection of any sort of historical
judgment. Relying solely on these newly configured lots to determine a landmark’s
boundaries would poorly serve the preservation goals at the heart of the Preservation
Act, particularly when the statute itself merely refers to a landmark’s “site” rather
than its “lot.”
24
Moreover, DECAA’s argument mistakenly assumes that the D.C. Inventory
was created only in 1979, when the Preservation Act took effect. As discussed in
Part I, the D.C. Inventory dates back to at least 1973, when it was published as part
of the District’s first comprehensive historic preservation plan. And even that
Inventory had its origins in the 1964 list assembled by the Joint Committee—a body
specifically chartered to “[c]ompile and maintain a current inventory of significant
landmarks in the District of Columbia.” Latimer v. Joint Comm. on Landmarks of
Nat’l Cap., 345 A.2d 484, 487 n.16 (D.C. 1975); see also 900 G St. Assocs. v. Dep’t
of Hous. & Cmty. Dev., 430 A.2d 1387, 1388 (D.C. 1981) (describing a building as
having been included in the D.C. Inventory “since the Inventory was first established
in 1964”). The Preservation Act did not scrap this existing Inventory wholesale and
replace it with a new one. Rather, the statute simply conferred a new legal status to
the existing Inventory while shifting its oversight from the Joint Committee to the
newly created HPRB. See D.C. Code § 6-1103(c). 3 Thus, even if the boundaries of
a landmark were coterminous with the lot it sat on at the time of the creation of the
3
DECAA’s contrary view seems largely premised on a single sentence in the
HPO’s final report, which described the Joint Committee’s 1964 list as “the
predecessor of the current D.C. Inventory of Historic Sites.” But as that report went
on to explain, the Preservation Act “incorporated the[se] already designated
landmarks and districts,” bolstering the District’s position that the statute did not
create the Inventory anew, but rather adopted the Inventory that had already been
assembled by the Joint Committee.
25
D.C. Inventory, that would still be Lot 800 for the Temple landmark—not Lot 820,
which was created years later in 1976.
DECAA makes two more arguments in a similar vein, neither of which is
persuasive. First, it cites to a draft HPO report and a snippet of testimony from the
office’s director as evidence that the 16th Street Historic District’s boundary
“acknowledged by implication that Lot 820 was also the site of the historic landmark
designation for the temple.” But while DECAA claims this evidence shows an
attempt by the District “to disavow its own expert agency’s conclusion,” neither a
draft report nor an (out-of-context) statement by a single official is anything of the
sort. Even the HPO’s final report—which rejected these preliminary views and was
authored by that same official DECAA quotes—did not constitute the final agency
action in this case. It was merely a recommendation to the HPRB, which made the
ultimate decision to reject DECAA’s application and clarify the Temple landmark’s
existing boundaries.
Next, DECAA points to several pieces of evidence that the HPRB supposedly
ignored when concluding that the Temple landmark’s boundaries were undefined.
These include: a private bill enacted by Congress to exempt the Masons’ property
holdings (including those outside the Temple’s original footprint) from taxation, see
26
Priv. L. No. 92-23, 85 Stat. 842 (1971); the draft HPO report, discussed above; and
a 2010 application to close the public alley behind the Temple, which described
A&T Lot 820 as the “Main Temple Site.” But the first and third of these records
have nothing to do with historic preservation, and so we see no error even if the
HPRB did fail to consider them. As for the second, we have already explained that
the Board was under no obligation to credit the preliminary views of the HPO,
particularly when its final report recommended the opposite.
B.
Because the HPRB reasonably, and backed by substantial evidence, found that
the precise borders of the Temple landmark had never been properly delineated,
most of the trial court’s remaining objections to its actions fall by the wayside. This
was not, as the court reasoned, a “reduc[tion] [in] the boundary line of the Temple
landmark.” Because that boundary line was never established in the first place, there
were no boundaries to reduce. It thus does not matter whether the HPRB had the
authority to undertake a boundary “reduction” as part of its adjudication of
DECAA’s application because it did not do so; and it is irrelevant whether it would
have been a violation of DECAA’s equal protection rights to reduce the boundaries,
as the trial court concluded, because that did not happen. Rather, the question in this
27
case is whether the HPRB, upon identifying an ambiguity in the Temple landmark’s
existing border, acted properly when it “t[ook] the opportunity provided by this
application” to “clarify and confirm” the boundary of the landmark. We answer that
question in the affirmative, and likewise conclude that its identification of former
A&T Lot 800 as the existing border was reasonable.
1. The HPRB’s Actions Were Procedurally Proper.
As the HPRB’s regulations explain, an application to amend the designation
of an existing historic landmark is evaluated by using “the same procedures” as an
application to designate a landmark in the first instance. 10-C D.C.M.R. § 221.4.
This means that after “accept[ing] written comments from affected property owners
and any other interested persons,” id. § 213, soliciting a report and recommendation
from the HPO, id. § 216, and providing appropriate public notice, id. § 211, “[t]he
Board shall hold a public hearing to receive information and public comments on
each application,” id. § 217.1. At the conclusion of this hearing, “[t]he Board may
vote to designate the property, deny or defer the designation, or designate the
property with reduced boundaries.” Id. § 218.4. Once this decision is reached, the
HPRB issues “a written decision with respect to the proposed historic landmark,”
28
and this decision must “identify the property” and, as relevant here, “specify its
boundaries.” Id. § 219.1.
The HPRB’s actions were consistent with these procedures. The
administrative record shows that in March 2019, DECAA submitted an application
to “amend the existing landmark to include all of the land behind the Temple just
described.” The Board responded to this application by following “the same
procedures” as an application for designation: it solicited an HPO report, which
recommended disapproving DECAA’s application; it accepted public comments,
which included a resolution adopted by the local ANC opposing the application; and
it conducted the required hearing, at which a DECAA representative presented the
group’s case. At the end of this hearing, the HPRB voted to deny DECAA’s
application, a judgment it subsequently reiterated in its written decision. As required
by regulation, see 10-C D.C.M.R. § 219.1, that written decision also specified the
boundaries of the existing Temple landmark, which the HPRB—upon determining
that those boundaries had never been formally delineated—voted to clarify as being
coterminous with former A&T Lot 800.
While the trial court deemed this process deficient, its only specific finding
related to 10-C D.C.M.R. § 218.4, a regulation permitting the HPRB to designate a
29
landmark property “with reduced boundaries” compared to those identified in the
application. This provision, the court found, relates to applications to list landmarks
anew and “is not about amendments.” But that is contrary to the text of the
regulations themselves, which state unambiguously that applications to alter existing
landmarks are evaluated using “the same . . . procedures” as applications to newly
designate them. Id. § 221.4. Thus, even if the HPRB had resolved DECAA’s
application by reducing the existing boundaries of the Temple site, it appears that
still would have been consistent with the agency’s procedures. But we need not
definitively opine on that question because, in any event, the HPRB did not in fact
reduce the landmark’s boundaries; it merely established, or clarified, what they were.
Though its reasoning on this point was less clear, the trial court further
suggested that the HPRB failed to provide the required notice of its actions, an
argument that DECAA presses in this appeal. As we understand the trial court’s
reasoning, it thought that because the HPRB only noticed a hearing on “Scottish Rite
Temple amendment (boundary expansion),” that was the only action the HPRB was
permitted to take. As DECAA subsequently put it, “the notice of a ‘boundary
expansion’ does not provide ‘reasonable notice’ that the opposite[, a boundary
reduction,] may occur.”
30
This argument fails for multiple reasons. First, “the opposite” did not, in fact,
occur. As we have discussed at length, the HPRB’s decision simply clarified the
Temple landmark’s existing (though formally undefined) borders. It is therefore of
no moment that the Notice of Public Hearing did not explicitly state that the HPRB
might “reduce” the borders of the Temple landmark at its May 2019 meeting; the
HPRB did not take that step.
And regardless of how one frames the HPRB’s decision, DECAA had actual
notice of exactly what the Board was likely to do, so DECAA is poorly positioned
to raise this procedural complaint. The record shows that throughout these
administrative proceedings, DECAA closely followed the proceedings of the HPO,
and it was aware of both the HPO’s April 2019 recommendation and the subsequent
revisions thereto. As a result, it came to the HPRB’s public meeting fully prepared
to press its case, where it argued forcefully against the HPO’s final recommendation
and in support of its application to expand the landmark’s site to the entirety of Lot
108. Particularly since the HPRB’s decision closely tracked that HPO
recommendation, DECAA cannot now claim to have been prejudiced by any
deficiencies in the agency’s Notice of Public Hearing, and it does not contend to the
contrary. This is fatal to its claim of insufficient notice. See Friends of McMillan
Park v. D.C. Zoning Comm’n, 211 A.3d 139, 145 (D.C. 2019) (“FOMP III”) (lack
31
of notice does not warrant reversal where the parties “have not identified concrete
prejudice they suffered as a result”). DECAA’s contrary argument that any
procedural violation is enough to overturn an agency action, regardless of prejudice,
is at odds with our case law. See id. And while DECAA raises the possibility that
“other concerned citizens” may have been prejudiced by the HPRB’s notice, no such
aggrieved citizen has come forward, and DECAA “cannot rest [its] claim to relief
on the legal rights or interests of third parties.” Martin v. Santorini Cap., LLC, 236
A.3d 386, 393 (D.C. 2020) (citation omitted). Those hypothetical third parties,
should they exist, would have to raise their own complaints.
2. The HPRB’s Decision Was Not Arbitrary or Capricious.
Because the HPRB reasonably concluded that the precise boundaries of the
Temple landmark had never been formally demarcated, and because it properly used
DECAA’s application as an opportunity to clarify those boundaries, the only
remaining question is whether its identification of A&T Lot 800 as the reference
point for those boundaries was arbitrary and capricious. That is a pretty open-and-
shut question: It was not. As the Board’s order explained, “[t]he property’s
significance is in the design and construction of Pope’s [T]emple, completed in
1915.” At that time, the Temple sat on A&T Lot 800, which constituted the entirety
32
of the Masons’ property holdings. Even sixty years after this period of historic
significance, the eastern portions of what is now Lot 108 “had not been formally
consolidated with the [T]emple . . . by the creation of an A&T lot”; that did not
happen until 1976. Accordingly, there was little reason to treat the new plots of land
added to A&T Lot 800 to form A&T Lot 820 in 1976 as being of any historical
significance, or as being within the landmark’s boundaries. As the HPRB reasoned,
“[n]either the ancillary uses nor the design qualities of the rear of the property define
or augment the significance of the landmark.” Rather, the HPRB clarified that Lot
800 was the site of historic significance and marked “the extent of the site of the
landmark.”
DECAA again challenges this determination on multiple grounds, but its
arguments are similarly unpersuasive. First, it highlights the differences between
the HPO’s April 2019 report, which identified the Temple landmark’s boundaries as
Lot 820, and its May 2019 revision thereto, which stated that these boundaries were
undefined. Citing to two federal cases, DECAA argues that this “‘about-face’
without adequate explanation” was arbitrary and capricious. See Nat’l Coal. Against
Misuse of Pesticides v. Thomas, 809 F.2d 875, 884 (D.C. Cir. 1987); Prometheus
Radio Project v. FCC, 373 F.3d 372, 390 (3d Cir. 2004). But even assuming the
HPO did fail to adequately explain the differences between its two reports, this
33
argument misapprehends the office’s role in the decision-making process. As
previously explained, when a party submits an application to designate or amend a
historic landmark, the HPO merely supplies a “report and recommendation on the []
application.” 10-C D.C.M.R § 216.1. The ultimate decision is then made by the
HPRB, which is the only body with the authority to approve or modify a landmark.
While the HPRB must itself provide an adequate explanation for departures from its
prior decisions, we are aware of no similar administrative law principle that applies
to advisory bodies like the HPO, and DECAA likewise points us to none.
DECAA next discusses at length a guidance bulletin published by the U.S.
Department of the Interior for use “in delineating the boundaries of historic
landmarks and districts.” See Donna J. Seifert, National Register Bulletin: Defining
Boundaries for National Register Properties (rev. ed. 1997). That guidance
bulletin—which DECAA maintains has been formally adopted by both the HPO and
HPRB—recommends using “the legal boundaries of a property as recorded in the
current tax map” when listing a new historic landmark. Id. at 3. Thus, argues
DECAA, the HPRB acted arbitrarily and capriciously by ignoring this guidance and
failing to select those “current” boundaries (i.e., A&T Lot 820).
34
This argument fails for two reasons. First, it once again begins from the
mistaken premise that the Temple was designated as a historic landmark only upon
the effective date of the District’s Preservation Act in 1979, when the Temple sat on
Lot 820. As explained in Part II.A, this is incorrect. The Temple has been a
designated landmark since at least 1973 (and arguably as early as 1964), well before
Lot 820 existed. Second, by its own terms, this guidance bulletin is just that:
guidance. It provides no hard-and-fast rules, and “current legal boundaries” is just
one factor it identifies as relevant to the decision-making process. Indeed, in the
paragraph immediately following the one highlighted by DECAA, the bulletin
recommends consulting “the boundaries shown on historic plats or land-ownership
maps . . . when the limits of the eligible resource do not correspond with current
legal parcels.” Id. Here, where the HPRB determined that both Lots 820 and 108
were assembled well after the Temple’s period of historic significance, it did just
that, using the lines of former Lot 800 in determining the landmark’s boundaries.
Finally, DECAA contends that the HPRB “kowtow[ed] to a developer,”
which is not a valid basis for an agency’s decision. But the evidence it cites reveals
nothing of the sort. While the record shows various emails and phone calls between
Perseus and HPO staffers in the aftermath of the April 2019 report, the agency’s own
regulations permit (and even encourage) this sort of communication. See 10-C
35
D.C.M.R. § 324.1 (“Before consideration by the Board, the staff shall review each
case and consult with the applicant as necessary. . . . The applicant should take full
advantage of the staff’s availability and expertise.”). And this argument once again
confuses the role of the HPO, which simply advises the HPRB, with that of the
HPRB itself—which was the final decision maker, and as to which DECAA
identifies no evidence of improper kowtowing.
In sum, because the HPRB’s finding that the Temple landmark site had never
been formally delineated was supported by substantial evidence, and because its
subsequent actions in setting its landmark boundaries—coterminous with the lot it
had sat on during its construction and for many decades thereafter—were
procedurally and substantively proper, the Superior Court erred in granting
DECAA’s motion for summary judgment.
III.
That brings us to DECAA’s petition in the subdivision appeal. Our review of
decisions by the Mayor’s Agent is “limited and narrow.” Friends of McMillan Park
v. D.C. Zoning Comm’n, 149 A.3d 1027, 1039 (D.C. 2016) (“FOMP I”) (citation
omitted). If a decision is supported by substantial evidence in the record, and if its
conclusions flow rationally from its factual findings, we will affirm. Id. Likewise,
36
“[w]hen the Mayor’s Agent’s ‘decision is based on an interpretation of the statute
and regulations [the Mayor’s Agent] administers, that interpretation will be
sustained unless shown to be unreasonable or in contravention of the language or
legislative history of the statute.’” Id. (quoting Kalorama Heights Ltd. P’Ship v.
D.C. Dep’t of Consumer & Regul. Affs., 655 A.2d 865, 868 (D.C. 1995)).
The Mayor’s Agent may authorize the subdivision of a historic landmark, or
of property within a historic district, upon a finding that such an action is “necessary
in the public interest.” D.C. Code § 6-1106(e). “Necessary in the public interest,”
in the context of Perseus’s application, means that it is “consistent with the purposes
of [the Preservation Act].” Id. § 6-1102(10). 4 With respect to historic landmarks,
the Act’s stated purposes are to “retain and enhance historic landmarks in the District
of Columbia and to encourage their adaptation for current use,” as well as to
“encourage the restoration of historic landmarks.” Id. § 6-1101(b)(2). With respect
to historic districts, the Act’s purposes also include ensuring that subdivisions and
4
The Preservation Act also permits subdivisions when “necessary to allow
the construction of a project of special merit,” D.C. Code § 6-1102(10), but Perseus
has never claimed that the planned apartment building qualifies as a project of
special merit or sought approval on that ground.
37
other alterations “are compatible with the character of the historic district.” 5 Id.§ 6-1101(b)(1). As we explained in FOMP II, the Mayor’s Agent’s inquiry into
whether a project is consistent with the purposes of the Preservation Act requires a
“net” assessment of its effects. 207 A.3d at 1166. The relevant question is whether
“a project on balance benefits historical-preservation interests more than it harms
those interests.” Id. (quoting FOMP I, 149 A.3d at 1041).
In this case, the Mayor’s Agent performed just this assessment. First, it
determined that subdividing Lot 108 would result in no historic-preservation losses,
as the eastern half of the lot did not contribute to the Temple’s historic significance.
Second, it determined that the subdivision would produce meaningful historic-
preservation gains by generating revenue that could be used to fund renovations to
5
We are concerned only with the subdivision of property within a historic
district, rather than with the subdivision of a landmark site itself, given the HPRB’s
determination that the landmark’s site is the former Lot 800. We have upheld that
determination, so the landmark’s site does not need to be subdivided for the project
to proceed: The landmark’s boundaries will remain intact and on a single record lot
following the subdivision of Lot 108 proposed by Perseus. Nonetheless, the Mayor’s
Agent operated under the assumption that any subdivision in this case would need
to be consistent not only with the Act’s purposes with respect to historic districts,
but also with respect to historic landmarks. See D.C. Code § 6-1106(c) (requiring
subdivision be “consistent with the purposes of” the Act generally). The parties do
not dispute that this subdivision had to be consistent with the Act’s purposes with
respect to both historic districts and historic landmarks, and so we operate under that
assumption as well.
38
the Temple itself. The Mayor’s Agent further noted that the smaller lots resulting
from this subdivision would be more similar in size to other lots in the surrounding
historic districts and that the district’s character would be improved by allowing for
construction in an incongruous gap in the neighborhood’s cityscape. Taken together,
these findings are sufficient to justify its decision to approve Perseus’s application.
Attempting to show otherwise, DECAA’s petition advances a number of
arguments, which generally fall into seven categories. First, and most broadly, it
claims that the balancing test used by the Mayor’s Agent is inconsistent with the
plain text of the Preservation Act. Specifically, it highlights the statute’s use of the
conjunction “and” when articulating its various purposes vis-à-vis historic
landmarks and districts. As a result of this conjunctive language, DECAA
maintains, a subdivision is only “necessary in the public interest” if it advances each
and every one of these stated purposes—simultaneously retaining and enhancing
and adapting for current use and restoring a landmark—regardless of any net
historic-preservation benefits. Applying this theory, DECAA argues that the
Mayor’s Agent’s decision was unsupported by substantial evidence, because there
was nothing in the record to support a finding that the subdivision would specifically
“enhance” the Temple landmark or encourage its “adaptation for current use.”
39
But this “conjunctive theory” requires an untenable reading of the statutory
text, and it is one we have already rejected. FOMP II, 207 A.3d at 1166 (requiring
“net” assessment of project’s effects). The statute merely requires that a subdivision
of a historic landmark be “consistent with” these enumerated purposes. D.C. Code
§ 6-1102(10). DECAA is therefore mistaken to read this provision as requiring that
a subdivision materially advance or promote each of these purposes in a specific,
articulable way. To the contrary: “consistent” means that something “show[s] no
noteworthy opposing, conflicting, inharmonious, or contradictory qualities or trends;
compatible.” Consistent, Webster’s Third New International Dictionary 484 (2002).
Thus, the Mayor’s Agent may reasonably conclude that a subdivision is consistent
with the purposes of the Preservation Act so long as it is compatible with its
purposes—i.e., it does not interfere with or otherwise undermine them. There was
no need for a finding that subdividing Lot 108 would specifically enhance the
Temple landmark or encourage its adaptation. It was enough that the project did not
cut against any of the statutory purposes and, on net, advanced those purposes
collectively.
DECAA counters that this reading of the statute is inconsistent with this
court’s decision in Gondelman v. D.C. Dep’t of Consumer & Regul. Affs., 789 A.2d
1238 (D.C. 2002), but we disagree. That case involved an application to undertake
40
significant alterations to a house located in a historic district, including constructing
a garage on the property and “pav[ing] a portion of the front yard.” Id. at 1239. As
DECAA correctly notes, our opinion stated that while this project would adapt the
property for current use, the applicant had failed to demonstrate “that the proposed
alterations will retain and enhance the historic property” while also being
“compatible with the character of the historic district.” Id. at 1246. But this
statement must be read in the context of the facts of that case, where the Mayor’s
Agent found that the project not only failed to advance these statutory goals, but in
fact directly undermined them by “reduc[ing] the green space which is an integral
part of” the historic district. Id. at 1243. In other words, Gondelman addressed an
entirely different question than the one raised by this case, where the Mayor’s Agent
found that Perseus’s proposed subdivision was “consistent with” each of the
Preservation Act’s purposes, even if it did not specifically advance each of them.
Second, DECAA argues that the Mayor’s Agent erred by relying on
“economic considerations”—namely, the fact that the subdivision of Lot 108 and
resulting revenue generated by the apartment project would fund renovations to the
Temple landmark. But again, its argument is largely premised on a misreading of
our precedent. Specifically, DECAA points to D.C. Preservation League v. Dep’t
of Consumer & Regul. Affs., 646 A.2d 984 (D.C. 1994), for the proposition that the
41
Mayor’s Agent may not “take[] into account such factors as the cost of refurbishing
the dilapidated structure.” Id. at 990. In context, however, that statement refers to
an application to demolish a historic property solely on the grounds that the property
would be too expensive to renovate. Id. at 990-91. We reversed the Mayor’s
Agent’s decision approving the application, opining that “[t]he relative cost of
refurbishing an existing structure . . . is an extraneous factor” unrelated to any of the
Preservation Act’s purposes. Id. That is markedly different than the question
presented in this case, where the Mayor’s Agent’s “economic consideration”—i.e.,
a revenue source for the Temple renovation—did advance those historic-
preservation purposes. Preservation League did not hold that the Mayor’s Agent is
categorically barred from considering that, and DECAA’s contrary arguments are
not supported by the statute’s text or our precedents. 6
6
DECAA also repeatedly alleges that the Masons misled the Mayor’s Agent
regarding the need for this revenue source, pointing to extra-record evidence
supposedly showing that renovations to the Temple have already been substantially
undertaken, before there could be any revenue stream from the anticipated apartment
building. But our review in administrative appeals is strictly limited to the
“exclusive record for decision before the . . . agency.” D.C. Code § 2-510(a); accord
Union Mkt. Neighbors v. D.C. Zoning Comm’n, 197 A.3d 1063, 1068 n.4 (D.C.
2018). And, in any event, that the Masons have undertaken some renovations to the
Temple is not inconsistent with a finding that more restoration work is needed for
this century-old structure, or that the Masons might have only been able to undertake
these initial repairs because they could anticipate a revenue stream from the
construction project.
42
Third, and relatedly, DECAA argues that if the Mayor’s Agent was permitted
to consider the “downstream effects” of the subdivision (he was), his decision was
arbitrary and capricious because he failed to also consider the negative aesthetic
effects of “dropping a massive 65 foot tall building” next to a historic landmark. We
disagree. Remember that the Mayor’s Agent’s decision granted only the subdivision
of Lot 108; it did not approve any particular use of, or construction on, the
subdivided land. As the Mayor’s Agent correctly noted in his decision, the supposed
negative effects invoked by DECAA—principally obscuring sightlines to the
Temple’s rear façade—all stem from its views about the developer’s design choices,
which were outside the scope of the Mayor’s Agent’s review. See FOMP I, 149
A.3d at 1040 (the Mayor’s Agent may not “function essentially as a second Zoning
Commission, evaluating all of the benefits and adverse impacts associated with
projects requiring a permit from the Mayor’s Agent”). Conversely, any development
project, no matter how designed, would result in a revenue stream for Temple
renovations that was credited in the Mayor’s Agent’s analysis. There was nothing
arbitrary and capricious about factoring the potential for revenue generation into its
decision while discounting DECAA’s arguments about the design of the project.
Fourth, DECAA challenges the finding that the eastern portion of Lot 108 did
not contribute to the Temple landmark’s historic significance. But as we held in Part
43
II, the eastern portion of the property is not part of the Temple landmark, and
HPRB’s finding on this point was both reasonable and supported by substantial
evidence. To the extent DECAA believes that the eastern portion of the lot, even if
not formally part of the landmark, nonetheless contributes to the structure’s historic
significance as a result of its “close[] associat[ion]” with the Temple, its arguments
merely invite us to consider anew the same evidence that was before the Mayor’s
Agent, which we decline to do. See Cathedral Park Condo. Comm. v. D.C. Zoning
Comm’n, 743 A.2d 1231, 1247 (D.C. 2000) (“It is not our role to reweigh the
evidence in the record in reviewing an agency decision.”).
Fifth, DECAA argues that the Mayor’s Agent erred by focusing “myopically”
on just two factors—lot size, and the presently undeveloped land’s fit with the
surrounding neighborhood—in his analysis of the subdivision’s congruity with the
surrounding historic districts. But again, the supposedly overlooked factors it points
to are not byproducts of the subdivision itself, but instead all stem from DECAA’s
views about the apartment building’s design. For example, DECAA claims that “[a]
massive 65 foot tall building along S Street will destroy the character of these
Historic Districts,” that it will “loom[]” over nearby houses, and that unlike other
neighboring structures, it was designed with “a 15 foot deep 5 foot wide trench in
front.” As just explained, these aesthetic considerations are governed by the
44
District’s zoning laws and are beyond the scope of the Mayor’s Agent’s review. The
only question before the Mayor’s Agent in this case was whether the subdivision
itself, i.e., the splitting of Lot 108 into two smaller lots, was “compatible with the
character of this historic district.” D.C. Code § 6-1101(b)(1). DECAA points to no
factors relevant to this inquiry that were overlooked.
Sixth, DECAA takes aim at one of the findings in the Mayor’s Agent’s historic
district compatibility analysis: that “the current character of the eastern portion of
the property—a vacant, open space—is incompatible with the historic district.”
This, DECAA contends, is inconsistent with prior decisions that have sought to
protect open space within historic districts, as well as the fact that other historic
districts are centered around open spaces (e.g., Dupont Circle). We see no
inconsistency. The question before the Mayor’s Agent was not whether open space
is compatible with historic districts in general; it was whether this open space was
compatible with these districts in particular (i.e., the 14th and 16th Street Historic
Districts). The Mayor’s Agent, noting that the eastern portion of Lot 108 was
occupied by buildings until the early 1990s, concluded that it was not. And contrary
to DECAA’s arguments, its findings on this point were supported by substantial
evidence.
45
Finally, DECAA argues that the subdivision would undermine the purposes
of the Preservation Act by “sever[ing] the Carriage House from the Temple, with
which it has been closely historically associated for almost [one] hundred years.”
But as discussed in Part II, the carriage house is not a part of the Temple landmark;
indeed, the Masons only acquired it in the late 1960s, decades after the Temple’s
period of historic significance. As such, the Mayor’s Agent reasonably found that
there would be no historic-preservation loss if the two structures were located on
two different record lots.
IV.
For the foregoing reasons, in case number 22-CV-0884, we reverse the
Superior Court’s order granting summary judgment to DECAA and remand for entry
of judgment in the District’s favor. In case number 20-AA-693, we affirm the
Mayor’s Agent’s order approving the Lot 108 subdivision.
So ordered.