No. 80-1.District of Columbia Court of Appeals.Argued January 6, 1981. Reargued March 1, 1982.[*]
Decided July 28, 1982.
Michael A. Cain and J. Kirkwood White, Silver Spring, Md., with whom Beth Irons French, Silver Spring, Md., was on the briefs, for petitioner.
Kathleen K. McKay, Asst. Gen. Counsel, National Capital Planning Commission, Washington, D.C., for respondent.
Louis P. Robbins, Washington, D.C., with whom Norman M. Glasgow and Whayne S. Quin, Washington, D.C., were on the amici curiae briefs filed on behalf of Calvary Baptist Church, et al.
Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Richard B. Nettler, Washington, D.C., Asst. Corp, Counsel, were on the amicus curiae briefs filed on behalf of the District of Columbia.
Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.
KERN, Associate Judge:
Pursuant to the District of Columbia Administrative Procedure Act (D.C. APA), petitioner seeks review of the decision of the Joint Committee on Landmarks of the National Capital to designate the Demonet Building, located at the intersection of Connecticut Avenue, Rhode Island Avenue, and M Street, N.W., as a historic landmark. Petitioner, the 99-year lessee of the building, challenges the Joint Committee’s action on a number of grounds. We decline to reach the merits of petitioner’s claims, because we lack jurisdiction under the D.C. APA to review decisions of the Joint Committee inasmuch as it is not a District of Columbia agency and our review is limited by Congress to decisions by the Mayor or a District agency.
Accordingly, we dismiss the petition.
The threshold issue in this case is whether under the D.C. APA we have review jurisdiction of the Joint Committee’s determination. The Joint Committee is an inter-governmental agency under the sponsorship of the Mayor of the District of Columbia and the two federal agencies, the Commission of Fine Arts and the National Capital Planning Commission. In 1968, the Commissioner of the District of Columbia, the National Capital Planning Commission and the Commission of Fine Arts signed an executive agreement authorizing the Joint Committee to act as the State Review Board of the District of Columbia in order for the District to “qualify for participation in the federal historic preservation program instituted under the National Historical Preservation Act of 1966.” Latimer v. Joint Committee on Landmarks of the National Capital, D.C.App., 345 A.2d 484, 485 (1975) (footnote omitted). That executive agreement was reestablished by the Commissioner in 1972 and 1974 and by the Mayor in 1978 and 1980.
Based on the hybrid nature of the Committee, we held i Latimer, that the Joint
Committee is not an agency of the District of Columbia and, consequently, that we were without jurisdiction to entertain that petition for review of a historic designation decision Id. at 487. Subsequent to Latimer, the District of Columbia Historic Landmark and Historic District Protection Act was passed. D.C. Code 1981, §§ 5-1001 et seq. The statute authorizes the Mayor to establish a Historic Preservation Review Board of the District of Columbia with the power to designate historic landmarks and districts in the District of Columbia. Under §5-1003, the Joint Committee, as the body which functioned as the District of Columbia State Review Board at the time of the Act’s passage, is authorized to act as the local Historic Preservation Review Board until such time as the Mayor establishes a Board and nominates its members (to be confirmed by the Council of the District of Columbia).
Petitioner argues that we have jurisdiction to review the Joint Committee’s determination, contending that the new statute’s enactment necessitates a result different from that reached in Latimer. Petitioner claims that when the Joint Committee acts pursuant to statute as the local Historic Preservation Review Board in designating a building for addition to the District’s inventory of historic sites, it acts as a District of Columbia agency, subject to the D.C. APA. Petitioner contends, therefore, that since the Joint Committee is acting as a District agency, its decisions should be reviewable by this court. Local effects of a non-District body, however, do not transform that body into a District of Columbia agency. Certainly, the Joint Committee had those same local effects at the time we ruled in Latimer that the Joint Committee is not a District of Columbia agency subject to the D.C. APA. Therefore, unless we are prepared en banc to overrul Latimer, that decision governs the instant petition.
Amici curiae Calvary Baptist Church, et al., argue that we have jurisdiction to review the Joint Committee’s decision because the Joint Committee is an “interim body” functioning pursuant to D.C. Law 2-144, codified as D.C. Code 1981, § 5-1003, rather than pursuant to the authority of the executive agreement between the District of Columbia and the Joint Committee. The District, however, has reestablished the same executive agreement with the Joint Committee since the passage of D.C. Law 2-144.
Moreover, a determination of whether the Joint Committee is functioning pursuant to D.C. Law 2-144 or the executive agreement is not dispositive of the issue before us i.e., whether the Joint Committee is a District of Columbia agency. The composition and the functions of the Joint Committee have not changed. The holding in Latimer that we lacked jurisdiction for direct review of the decisions of the Committee turned on our finding that “[t]wo of the three sponsors of the Joint Committee are federal agencies, and, consistent with this composition, many of its functions are of a federal nature.” 345 A.2d at 487 (footnotes omitted).
We emphasize that the Joint Committee continues to serve both a federal and a local function when designating landmarks and making recommendations for nominations to the National Register of Historic Places. Thus, the Committee is not an agency of the District of Columbia. Until such time as the Mayor appoints a local Historic Preservation Review Board, we remain without jurisdiction under the D.C. APA to review decisions of the Joint Committee.
Accordingly, we must dismiss the petition.