The owners of the Warner Theater launched a two-pronged attack this week against an application to have the 61-year-old theater designated a historic landmark -- but failed in both attempts.
On Monday,they asked a federal court judge to block a hearing scheduled for Wednesday on the application and then later, at the hearing, tried to stop the proceedings before the D.C. Historic Preservation Review Board on procedural grounds. No final decision was made on the application, which had been filed by the D.C. Preservation League, and the hearing is scheduled to continue next week.
The case of the Warner's historic landmark status has languished for more than three years, spawning an unprecedented string of attacks on the city's preservation law and review process, and fanning acrimony between the Warner's owners and preservationists.
The owners, who want full control over the future of the neo-classical theater and office building at 13th and F streets NW, say the city's historic preservation process is lengthy, intimidating and expensive. They contend that the building, and its strategic downtown site, will lose $6.5 million in value if designated a historic landmark.
Under the city's preservation law, a building or structure designated a landmark cannot be demolished or its exterior or site altered without a permit from the D.C. government. That protection also is extended to buildings that have landmark applications pending, to keep building owners from demolishing potential landmarks before a decision can be made.
The D.C. law requires the historic review board to rule on landmark applications within 90 days to keep the process from becoming too burdensome for building owners. For various reasons, however, the Warner has been protected as a potential landmark now for three years, a restriction the owners say they will continue to fight.
"There isn't one chance in a thousand I'll back off," said J. Albert Weinberg, one of the building's owners, at the hearing this week. "This is a lynching process, and we have no intention to be lynched."
The owners filed a motion in U.S. District Court seeking a permanent stay against the landmark hearing until they could finish their appeal of an earlier court decision on the Warner's landmark status.
The earlier ruling, made by U.S. District Judge Louis F. Oberdorfer last year, found that a 1983 landmark designation for the Warner was invalid because the Joint Committee on Landmarks, which handled designations in the District until 1984, had acted in an "untimely and unlawful" manner in granting the Warner landmark status. The Joint Committee had failed to act on the petition within the 90-day period required by the D.C. Preservation Act.
When Oberdorfer threw out that designation, however, he allowed preservationists to file a second application. The D.C. Preservation League, which had filed the first Warner landmark application before the Joint Committee, filed the second three months ago, and the Historic Preservation Review Board is required to act on that application by this Wednesday, Aug. 7.
The theater's owners sought to prevent the review board from holding a hearing until the courts acted on their appeal of Oberdorfer's original ruling. In that appeal, the owners contend that allowing a second designation application undermines the purpose of the 90-day requirement.
"If the rule means only that the owner can be subjected to repeated applications each time the 90-day rule is violated, it provides no protection at all," said William W. Taylor III, an attorney with the law firm of Zuckerman, Spaeder, Taylor and Kolker who presented the owners' case before Oberdorfer and the review board this week.
Oberdorfer, however, denied the owners' request for a stay pending appeal of the earlier court decision, saying, "I'm not persuaded the plaintiffs will suffer irreparable damages if they are required to participate in the hearing."
Taylor then took his efforts to derail the hearing to the review board. He argued Wednesday that the board should dismiss the D.C. Preservation League's application because of alleged illegal communications between the review board's staff and DCPL, among other problems.
The review board proceeding, normally an informal opportunity for both sides to present testimony on the historic landmark application, was elevated to a far more formal proceeding after several members of the review board complained that Taylor was "badgering" witnesses for DCPL and unfairly trying to discredit their testimony. The proceeding had time limits on testimony and cross-examination, and legal counseling for the chairman.
Review Board Chairman James T. Speight denied a series of disqualification motions filed by Taylor. In one, Taylor contended that several members of the review board also were members of DCPL. He argued, furthermore, that review board members who had served on the now-defunct Joint Committee on Landmarks could not make a fair judgment because "they had already reached a determination" on the Warner.
Speight said he had asked the review board members, who are appointed by the mayor and who receive DCPL informational mailings, if any had a conflict of interest on the Warner case before convening the hearing. He said he was satisfied none existed.
Speight also denied several other procedural motions after Andrea Johnson, corporation counsel for the city, said the board was conducting the hearing in accordance with the city's administrative procedures.
Taylor also asked the review board to dismiss a pending application to have the Warner's interior declared a landmark along with its exterior, claiming that such a designation would "compel the owners to maintain the theater at their expense for the benefit of the public."
Arne Sorenson, an attorney with the D.C. law firm of Latham Watkins & Hills, defended the DCPL before the review board. He argued that the application for the interior of the Warner was "legitimate" under D.C.'s preservation law and that it would "simply preserve the interior," not "require the owners to operate a theater." Sorenson also argued that Taylor's attempts to restrict the review board would "hamstring" its activities. Corporation counsel Johnson agreed.
DCPL members and experts on architecture and motion-picture history testified that the Warner, designed by architects C. Howard Crane and Kenneth Franzheim, was a classic example of the early movie palaces that sprouted in American cities during the '20s. They said that for nearly 50 years, the Warner was the centerpiece of the chain operated by the Warner Brothers motion-picture company.
James O'Brien, an architect and project manager for a construction firm owned by the son of one of the Warner's four principal owners, testified that the theater had been badly damaged over the past 60 years and that some elements of the original facade had been altered.
The review board is expected to make a final decision on landmark status for the building's interior and exterior next Wednesday.