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: 09/24/2004
Type of Case/Type of Permit Sought: Second Modified Decision and Order
Prior Case History:
Gtown 32nd LLC (the “Applicant”) sought permission to construct two new houses on property identified as Lots 74 and 75 (the “Subject Property”), 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. A June 23, 2004 order followed the June 9th Order to resolve various procedural matters raised by the parties prior to the de novo hearing. This September 24, 2004 hearing followed the de novo hearing during which testimony and other relevant evidence concerning the Applicant’s request for approval of a revised site plan was entertained. (See HPA 03-480 & 03-481, orders of December 24, 2003, May 20, 2004, June 9, 2004 and June 23, 2004.)
The issue before the Mayor’s Agent was to determine whether the Applicant had complied with the Condition set forth in the Original Order. The Mayor’s Agent made findings of fact, including: 1) that the trees and proposed sidewalk which were the subject of the Condition were located/to be located in public space adjacent to the Subject Property; 2) that it was unknown whether a sidewalk had ever been located adjacent to the Subject Property; 3) that, even had there at one time been a sidewalk on the public space adjacent to the Subject Property, it was not within the Mayor’s Agent’s jurisdiction to require its reconstruction; 4) that, among other reasons, the nature of the root system of the trees made it impossible to construct the sidewalk on public space while preserving the trees, thus, if any sidewalk were to be constructed, it would have to be a sidewalk on private property, which would be highly unusual, and that many issues, including liability, insurance, and maintenance, arise from the construction of a public sidewalk on private property; 5) the Applicant had made a good faith effort to comply with the Condition; and 6) that preserving the trees rather than building a sidewalk was the desirable solution. The Mayor’s Agent noted that the HPRB staff had determined that fulfillment of the Condition in its entirety was impossible and had placed more importance on retention of the existing trees than on construction of a sidewalk, and found that, “If a condition is an impossibility, and an applicant makes a good faith effort to satisfy that condition, particularly with the assistance and input from the appropriate governmental body, that applicant should be found to have satisfied the condition.” The Mayor’s Agent determined that neither the Petitioners nor the ANC had met their burden of proving that the proposed new construction, as modified to reflect saving the trees, was incompatible with the Historic District or Historic Landmark and that the Applicant had satisfactorily complied with the Condition; thus, the Mayor’s Agent approved the revised site plan and ordered the HPRB to approve the relevant applications.
Mayor’s Agent – Procedural:
• The Mayor’s Agent accorded great weight to the position of the ANC, pursuant to D.C. Code Ann. § 1-261(d).
• The Mayor’s Agent delineated the scope of his jurisdiction: “The only applications over which the Mayor’s Agent has jurisdiction under the Act, are for applications on construction on private property. . . Under D.C. Code § 5-1007(f), for an application for a permit for construction on private property, the standard is described in the following manner: ‘[c]ompatibility with the historic district or landmark is thus the sole statutory criterion for determining whether new construction shall be authorized.’”
• The Mayor’s Agent stated that “[c]onsistent with the testimony of the Office of the Attorney General, the Mayor’s Agent can change an Order and modify a condition of an Order.”
• The Mayor’s Agent asserted that the burden of proof of incompatibility of proposed new construction with the relevant Historic District or Historic Landmark rests on the parties in opposition.
• The Mayor’s Agent noted that, in the future, hearings to determine whether a condition of an order had been fulfilled were not mandatory “where final resolution of such a condition has been solely delegated to an applicant and District of Columbia governmental body.”
The Mayor’s Agent noted that within the Historic District, there were streets with sidewalks and trees in public space and other streets with no sidewalks or trees in public space. “However, sidewalks on private property are not part of the character of the Historic District, and are not mandatory to make a project compatible with the Historic District.”