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05/04/84 Joseph N. Grano, Jr., Et v. Marion S. Barry

May 4, 1984

JOSEPH N. GRANO, JR., ET AL

v.

MARION S. BARRY, JR., MAYOR, DISTRICT OF COLUMBIA, ET AL., APPELLANTS; OLIVER T. CARR, JR., ET AL.; JOSEPH N. GRANO, JR., ET AL.

v.

MARION S. BARRY, JR., MAYOR, DISTRICT OF COLUMBIA, ET AL.;



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

OLIVER T. CARR, JR., ET AL., APPELLANTS 1984.CDC.123

Appeals from the United States District Court for the District of Columbia.

APPELLATE PANEL:

Wald, Bork and Starr, Circuit Judges. Opinion for the Court filed by Circuit Judge Bork.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BORK

Mayor Marion S. Barry, Jr., other District of Columbia officials, and Oliver T. Carr, Jr. and George H. Beuchert, Jr., trustees, appeal from a district court order enjoining the District of Columbia from issuing a permit for the demolition of Rhodes Tavern and a permit for the construction of a new building. The injunction preserved the status quo pending the outcome of a referendum on an initiative to preserve the Tavern and, in the event the initiative passed, until the procedures contemplated in the initiative should be concluded. While this appeal was pending, the initiative passed. Consequently, as to the issues raised by the issuance of an injunction pending a referendum, we hold that the case is now moot. Regarding the issues raised by continuation of the injunction after the initiative passed, we hold that there is no basis in federal law for the order and, further, that it would be an abuse of discretion for the federal court to retain jurisdiction over any local law issues. We therefore remand to the district court with directions to dissolve the injunction and dismiss the case. I.

Rhodes Tavern, in downtown Washington, D.C., was constructed between 1799 and 1801. Though the building has been extensively altered over time and most of it was razed in 1957, it is regarded as an historical landmark. In 1977, the Oliver T. Carr Co., a real estate developer, and the real party in interest here, proposed to build an office and retail complex on a site including the land now occupied by Rhodes Tavern. There followed complex and lengthy discussions and negotiations involving the Carr Co., the District, and local preservation groups. These and other aspects of the procedures required of the developer are set out in the opinion of the District of Columbia Court of Appeals in Citizens Committee to Save Historic Rhodes Tavern v. District of Columbia Department of Housing & Community Development, 432 A.2d 710, cert. denied, 454 U.S. 1054, 70 L. Ed. 2d 590, 102 S. Ct. 599 (1981). It will suffice to say here that the Carr Co. filed applications for permits to relocate or demolish Rhodes Tavern and for construction on the site. Since the Tavern is classified as a Category II landmark structure under the District of Columbia Historic Landmark and Historic District Protection Act of 1978, the Carr Co.'s applications were referred to the Joint Committee on Landmarks. That Committee recommended that the Mayor's Agent hold a public hearing. After hearings on three days, during which she heard 28 witnesses and received 84 exhibits in evidence, the Mayor's Agent on February 11, 1980, found that the permits were necessary to allow the construction of a project of special merit (the finding required to permit demolition or relocation) and ordered the issuance of the permits.

The Citizens Committee to Save Historic Rhodes Tavern petitioned the D.C. Court of Appeals for review. Stating that a balancing of historical and developmental values was required, the court held that the Mayor's Agent had performed that task and affirmed her decision. Citizens Committee, 432 A.2d 710.

The demolition permit could not be issued immediately because D.C. Code Ann. ยง 5-1004(h) (1981) requires that the demolition and construction permit issue at the same time. The final drawings required for the construction permit had not been submitted. The developer also was seeking a special exception to the zoning requirements. The special exception has been granted and the permits for demolition and construction have been ready for issuance for some time. While the Carr Co. was attempting to obtain the permits and the special exception, however, appellee Grano and other members of the Citizens Committee to Save Historic Rhodes Tavern drafted an initiative (Initiative No. 11) to secure the building's preservation. *fn1 The District of Columbia Board of Elections and Ethics certified that Initiative No. 11 had met the requirements for inclusion on the ballot for the November 3, 1983 election. The day after the District's Board of Zoning Adjustment issued a written opinion granting Carr a special exception, the last prerequisite for issuance of construction and demolition permits, appellees brought suit in the district court against officials of the District seeking a temporary restraining order and a preliminary and permanent injunction prohibiting issuance of the demolition and construction permits. Trustees Carr and Beuchert intervened as parties defendant.

The district court granted plaintiffs' motion for summary judgment, holding that plaintiffs' right to vote would be violated were the permits for demolition and construction issued prior to the election. To forestall such an occurrence, the district court granted a permanent injunction against the District's issuance of those permits

(1) Until after the November 8, 1983, election in the District of Columbia and the certification of the result of the vote on Initiative No. 11. . . .

The court further held that the issues raised by defendants -- the constitutionality and statutory validity of the proposed initiative -- were not ripe for adjudication. Nevertheless, the court ordered that if the initiative were passed by majority vote and enacted into law, then the injunction should remain in effect

until the procedures contemplated in Initiative No. 11 for the preservation of Rhodes Tavern are concluded.

While the injunction was in effect, the referendum was held, and the initiative received a majority of YES votes. On January 24, 1984, the Chairman of the District of Columbia Council transmitted the initiative to the Speaker of the House of Representatives and the President of the Senate for a thirty-day period of ...


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