Saturday, February 22, 2020

DC Court of Appeals grants injunction that Friends of McMillan Park -- Wednesday, 02-19-2020

See this Friends of McMillan Park message:

From: On Behalf Of Kirby Vining
Sent: Saturday, February 22, 2020 6:43 PM
Subject: [HistoricWashingtonDC] Court Grants Injunction Friends of McMillan Park Requested, Feb. 19

The following is information that the Friends of McMillan Park sent out Saturday, February 22 concerning the most recent court action on McMillan Park:

On Wednesday, February 19th, the D.C. Court of Appeals granted the injunction we requested to halt demolition activity at McMillan until our appeals case is decided. Recall that the Court issued an administrative injunction on January 16th stopping demolition activity to allow the Court time to review our request for an injunction, appealed from the Superior Court order of January 10th that denied our injunction request. In this Feb. 19th order, however, the Court has completed its initial review of the case and granted the injunction we requested and explained why it did so, all consistent with the grounds we presented.

BACKGROUND: Recall that the D.C. Court of Appeals' May 16, 2019 order affirmed the order of the Mayor's Agent for Historic Preservation that would allow demolition, but imposed a condition on any demolition: "The applicants are not at liberty to begin demolition or subdivision, however, unless .... the Department of Consumer and Regulatory Affairs independently determines that they possess the ((financial)) ability to complete the project."  The Court's Feb. 19th order says "Thus far the Deputy Mayor appears to have relied almost exclusively on a presumption that DCRA made the independent determination it was required to make, and the existing record is apparently bereft of any direct evidence that DCRA in fact did so."  This is precisely our argument and the Court clearly agrees with us.

The Court's Feb. 19th order is an interim order, not a final decision, and it states that there is one matter still outstanding: The Feb. 19th order states: "We note that there has been uncertainty about whether DCRA's issuance of the demolition permit is properly reviewable by the Office of Administrative Hearings or instead by the Superior Court.  We do not decide that question at this juncture."  The Court determined that this question does not prevent the issuance of the injunction, but instructed OAH to quickly complete its review to determine whether it regards the demolition permit as properly issued. DMPED argues that the OAH has the authority to review the permit.

The Court's order was silent on what it will do with the results of OAH's review, saying only that it could not answer the question about whether OAH or the Superior Court can properly review this matter.  So when OAH has completed its review, the Court of Appeals will continue its proceedings on our appeal. This is complicated stuff, but recall that our main argument is that the demolition order issued on August 16, 2019 was in defiance of the Appeals Court's instructions in its May 2019 decision. The Superior Court and thus far the Court of Appeals agree with our argument, but the Court says it cannot decide the question of whether OAH or the Superior Court have the authority to review the issuance of the permit. And that's where we are now.

The above information is available in URL form here: 

Kirby Vining

No comments: