Decision Summary HPA No. 03-480, 03-481
- HPA Number
- 03-480, 03-481
- Building Name
- 1515-1517 32nd St. NW
- Date of Order
Full Text of Order
HPA Number: 03-480, 03-481
Case Name: In Re Darrin Phillips, et al.
Location of Property: 1515 and 1517 32nd Street, N.W., Square 1270, Lots 74 and 75
Date of Decision: 06/23/2004
Type of Case/Type of Permit Sought: Multiple Motions for Reconsideration of Modified Decision and Order - whether case should be reopened to receive testimony regarding a modified site plan and related Mayor’s Agent Order dated May 20, 2004, or whether case should be dismissed for lack of jurisdiction or stayed pending judicial review.
Disposition: Granted in part and denied in part.
Prior Case History:
Gtown 32nd LLC (the “Applicant”) sought permission to construct two new houses on property identified as Lots 74 and 75, located within the Georgetown Historic District (the “Historic District”) and situated on the square included in the designation of the landmark Bowie-Sevier House (the “Historic Landmark”). The Mayor’s Agent approved such new construction application in a prior Decision and Order issued December 24, 2003 (the “Original Order”), on the condition that the Applicant work with the staff of the Historic Preservation Review Board (the “HPRB”) to develop a site plan that would include installation of an appropriate sidewalk and preservation of certain mature trees located on the east side of the 1500 block of 32nd Street (the “Condition”). Pursuant to the Condition, the Applicant met with a staff member of the HPRB who determined that it was infeasible to both install the sidewalk and preserve the mature trees, and that it was more desirable to preserve the mature trees. In an order dated May 20, 2004 (the “May 20th Order”), the Mayor’s Agent found that “the Applicant’s request for approval of the revised site plan is in compliance with [the Original] Order.” The Mayor’s Agent also determined that because the Condition required only that the Applicant collaborate with the HPRB staff to come up with a design that complied with the Condition, and not that other parties review the design for compliance, that no further review of the revised site plan was warranted. Following the issuance of the May 20th Order, certain individuals who had acquired party status for this case on February 11, 2004 (the “Petitioners”) petitioned the Mayor’s Agent for reconsideration of the May 20th Order because the Petitioners had not been aware of the Applicant’s request for approval of a revised site plan and desired the opportunity to be heard before the Mayor’s Agent issued a final, modified decision and order. The Mayor’s Agent granted this petition on June 9, 2004 (the “June 9th Order”), ordering, among other things, that the May 20th Order be vacated and a de novo hearing be conducted. This June 23, 2004 order followed the June 9th Order to resolve various procedural matters raised by the parties. (See HPA 03-480 & 03-481, orders of December 24, 2003, May 20, 2004, and June 9, 2004.)
The Mayor’s Agent issued this order in response to the parties’ respective petitions and motions regarding reconsideration of the May 20th Order. The Applicant’s position was that the Original Order was a complete and final order and did not require review by either the Mayor’s Agent or other parties as to whether and how the Condition was resolved. The Applicant cited the procedure of the Board of Zoning Adjustment and the Zoning Commission as support for this position. The Mayor’s Agent disagreed: “the inability of Applicant to meet both components of the Condition created a situation where the precondition for issuance of the overall order granting new construction permits and authority was left hanging in abeyance.” In such a situation where both conditions of an order could not be met, the Mayor’s Agent needed to be consulted and asked to determine whether the Applicant had made a good faith attempt to fulfill the Condition and whether the portion thereof that was not possible to satisfy could be waived or removed.
The Petitioners asserted that the Mayor’s Agent lacked jurisdiction to reopen the record and give reconsideration, since the official record for the Original Order was closed on December 15, 2003 and a final order was issued on December 24, 2003, and because a court case appealing the Original Order was pending. The Mayor’s Agent disagreed with this position, stating “That the Mayor’s Agent is asked to amend a previously issued order does not automatically rob him of jurisdiction simply because the order has been appealed to the court.”
Thus, the Mayor’s Agent ordered a hearing to be conducted on June 30, 2004 to receive testimony and evidence in reference to the Applicant’s request for approval of the revised site plan. The Mayor’s Agent stated that no other issues would be entertained at such hearing.
Mayor’s Agent – Procedural:
• The Mayor’s Agent asserted that he does not lose jurisdiction over a matter merely because the underlying order is the subject of an appeal.
• The Mayor’s Agent stated that when a permit is granted subject to a condition that cannot be fulfilled, “then the Mayor’s Agent needs to be consulted in the appropriate forum and asked to waive or remove the condition that could not be met.”
Summary of Specific Motions and Dispositions Thereof:
• Petitioners: Petition for Reconsideration of Modified Decision and Order (Granted) Or, In the Alternative, For a Stay Pending Judicial Review (Denied)
• Petitioners: Motion of Party Opponents to Terminate All Proceedings for Lack of Jurisdiction and Opposition to Applicant’s Motion to Reinstate the May 20, 2004 Order (Denied)
• Applicant: Motion to Reopen Record (Granted), Deny Opponents’ Motion for Reconsideration of Modified Decision and Order, and Reinstate the May 20, 2004 Order (Denied) Or, In the Alternative, Motion to Limit Hearing to Whether Opponents Have a Right to Participate in a Delegated Administrative Review Process (Denied)
Subsequent Case History:
See order of September 24, 2004 for subsequent history.