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GOVERNMENT OF THE
OFFICE OF PLANNING, HISTORIC PRESERVATION OFFICE
801 NORTH CAPITOL STREET, N.E. THIRD FLOOR
In Re: Application for underground addition
In The Matter Of:
DECISION AND ORDER
Pursuant to District of Columbia Official Code § 6-1105 (2001 ed.), Alteration, a public hearing was held on June 27, 2007, before Rohulamin Quander, Senior Administrative Law Judge and the Mayor’s Agent for Historic Preservation (the “Mayor’s Agent”), on the application filed on behalf of Aarno and Claire Liuksila, owners and Applicants (the “Applicants”) for the issuance of a construction permit for a proposed underground alteration and addition to their single family residence, located at 3259 P Street, N.W., Washington, D.C. This matter was referred to the Mayor’s Agent pursuant to a letter request, dated May 11, 2007, from Leopold B. Boeckl (“Boeckl”), architect and agent for the Applicants.
Pursuant to D.C. Code § 6-1105(b), this application was referred to the U.S. Commission of Fine Arts (the “CFA”) for a recommendation regarding whether the application should be granted. The CFA reviewed the application on April 19, 2007, and on April 20, 2007, transmitted to the Historic Preservation Office (the “HPO”), of the D.C. Government, a recommendation for its denial on the grounds that it would not be consistent with the Georgetown Historic District. The Applicants took exception to the CFA’s recommendation, and requested that the matter be heard and decided by the Mayor’s Agent.
The administrative review of this Application and matter was conducted in accordance with the requirements of the District of Columbia Municipal Regulations (the ”DCMR”), Title 10A, Chapters 1-99, and in accordance with the D.C. Administrative Procedure Act, codified at D.C. Official Code § 2-501 (2001 ed). et seq. Timely notice of the public hearing was published in the District of Columbia Register as required under 10A DCMR § 406.
The existing single family residential building on the property is a structure that contributes to the character of the Old Georgetown Historic District (the “Historic District”), a National Historic Landmark District and a historic district formally designated by the District of Columbia and listed within the District of Columbia Inventory of Historic Sites.
The Applicants did not attend the hearing, but were represented by Boeckl, with the assistance of Ahmet Ozusta, a structural engineer. The Applicants requested that the Mayor’s Agent grant the request for the underground construction project, on the basis that the project is necessary in the public interest, and is consistent with the enumerated purposes of § 6-1101(b) of the Historic Landmark and Historic District Protection Act of 1978 (the “Act”), D.C. Law 2-144, codified at D.C. Official Code § 6-1101, et seq., as defined in the Act.
The Applicant is seeking approval of a proposal to construct a below ground addition to a single family dwelling that is located in the Historic District. To complete the project, the Applicants will have to dig out approximately 40% of the existing basement beneath the 1860 to 1877-constructed house, lowering the floor in the process. Additionally, they would excavate the small rear patio, which is currently bricked, and dig out from underneath the existing driveway and garage. The end result will be a large underground space of approximately 1,425 square feet most of which will become the Applicants’ library. As well, the garage, which is not currently being used for motor vehicle parking, will become a two story structure, with most of the area under the current garage to be excavated as a component of this project.
The Applicants’ intent is to essentially leave intact the current appearance of the property, representing to the Mayor’s Agent that:
Having reviewed the entire record before him, and taking into consideration the opposition of the CFA, testimony received both in support of and against the application, and the applicable law and governing regulations, the Mayor’s Agent has determined that this application for a construction permit is GRANTED.
The issue to be decided by the Mayor’s Agent is whether the proposed underground addition to be located in the rear of the Applicants’ single family residence is necessary in the public interest as consistent with the purposes of the Act.
FINDINGS OF FACT
Testimony in Favor of the Application:
1. According to the Applicant the proposed alteration will serve the purposes of the Act by allowing for the retention and enhancement of this contributing property, while adapting it for current use, in accordance with D.C. Official Code § 6-1101(b)(1).
2. Leopold B. Boeckl, Applicant’s architect and agent, testified in favor of the application. Based upon his testimony, the Mayor’s Agent finds:
(a) Applicants propose an approximately 1,425 gross square feet addition to their single family home, of which approximately 1,200 gross square feet would be below grade, and approximately 225 gross square feet would be on grade, being the internal alternations that would take place in the structure that is now the garage, which is currently not being used for motor vehicle purposes.
(b) In order to capture the above noted space, about 40% of the current basement/crawl space would be excavated underneath the current house, which presently has a narrow partial basement, side crawl spaces, and low ceiling. This situation severely constricts the possibility of using the basement in its present form. The newly created space, including a lowered floor in the original basement/crawl space, would primarily serve as a library to house the Applicants’ extensive book collection.
(c) At present, the small rear yard space, the dimensions of which are not officially a part of this record, is completely bricked over, and has been for several years. Future plans are to remove all of the bricks, and to replace them with at least five inches of dirt, and then to plant grass, creating a landscaped green space. There would be two pyramid-shaped sky lights inserted into the landscaped area, to allow natural light to reach the proposed underground addition.
(d) Applicants also plan to remove much of the bricked-in patio located at the front of the house, and to transform it into green space, with a small tree and additional landscaping.
(e) The existing garage doors would be replaced by permanent non opening French doors designed to fit exactly into the present garage door opening. A new door opening would be cut into the garage wall.
(f) The desired result would expand the existing basement to remove some/all of the crawl space, connect to the existing basement, pass underneath the patio, existing rear parking area, and underneath the existing garage, which will now become a two level garage, although it will no longer serve as a garage. The Applicants’ motor vehicle will continue to be parked in the existing driveway, which would remain in the same spot as now in use, but be located on what will then become the roof of the expanded underground addition.
(g) To effectuate the project, one of the two mature Magnolia trees, which is located entirely on the Applicants’ land, would have to be cut down. However, the other tree will not be removed or disturbed, and although it is close to the Applicant’s property line, it is not expected to be affected by the construction.
(h) Since this is both a rear addition and totally underground, none of the addition will be visible from the public space.
(i) To address the known presence of underground water, the construction plans include the installation of a complete drainage system, which will contain all of the underground water, fully protect the Applicants’ property, and prevent water seeping to the two adjacent neighbors’ properties also.
(j) He is aware that both the Old Georgetown Board and CFA exist, but does not fully comprehend what role each plays in the processing of this application. Further, he is unaware of any zoning or other legal restrictions which might prevent this project from being approved.
There is no code provision in the
3. Ahmet Ozusta, structural engineer, testified on behalf of the Applicants. The Mayor’s Agent accepted the witness as an expert in the subject area. Based on his testimony, the Mayor’s Agent finds:
(a) Comprehensive plans for both the construction and occupancy phases of the project include protection of the adjacent neighbors, since the construction would be conducted right on the property line immediately adjacent to residents Albert Amori (“Amori”) and his wife Linda M. Pfeifle (“Pfeifle”), who do not have the narrow driveway buffer between their house and the Applicants’ house.
(b) With proper underpinning of the Applicants’ property, there should be no protrusion, invasion, damage, or disturbance to the Amori-Pfeifle property. All precautions will be taken to not permanently disturb the neighbors’ properties. The only disturbance should be temporary, during the actual construction phase. This is a more expensive way of doing the project, but designed to contain everything within the Applicants’ property lines.
(c) While he is the structural engineer for the project, someone else would be the actual building contractor.
(d) Considering the common property line, especially with Amori-Pfeifle, a drainage plan and program will be implemented to prevent water seepage. The structure is designed for some hydrostatic pressure, but most of the water would be eliminated by providing a complete drainage system underneath the floor of the basement, close to the foundation of the new wall. Whatever water does seep through the soil would be taken up by the drain, plus there will also be a sump pump installed.
(e) There was a perc test conducted in the rear driveway area of the Applicants’ present house, to establish the presence of water and to measure water presence. On cross examination by Pfeifle, the witness conceded that although they perced within two to three feet of Applicants’ property line, the results of the test do not reflect just how close the perc test was conducted to the existing house, which might be a better judge of where there might be water in proximity to the houses, and how much.
Testimony in Opposition to the Application:
4. Thomas Luebke, Secretary, Commission of Fine Arts, testified in opposition to the Application. Based on his testimony, the Mayor’s Agent finds:
(a) The CFA, at its meeting of April 19, 2007, issued a statement on April 20, 2007, which recommended against the granting of this appreciation for a proposed underground addition with pyramidal skylights and subterranean construction, plus large plate glass windows in the place where the current garage doors exist, on the basis that it would destroy existing mature landscape and deny the possibility of its future replacement in character, scale, or kind which adversely affects the value and character of the Georgetown Historic District.
(b) As well, the above noted changes would allegedly be visible from public space, despite being located in the rear of the property, in addition to reducing the landscape in contraband to § 805 of the D.C. Comprehensive Plan, which is a definitive commitment to maintaining the landscape and greenery in the District, both as component of the Plan and the Act.
(d) While the Applicant’s drawings presented at the CFA/OGB meetings are the same as now presented before the Mayor’s Agent, there are computer created and enhanced photographs of the proposed project that are now available, and being presented to the Mayor’s Agent, but which were not previously shown to CFA/OGB for consideration as a part of their determination whether to recommended approval or denial of this application.
(e) While one mature tree is unquestionably located on the Applicant’s property, the distance of the second tree from the Applicant’s property line is disputed, which might likewise compromise the survival capability of the second tree, which is located in the rear public right of way alley. To destroy either one or both of the mature trees is to create something that could not be replaced in character or scale.
(f) Applicant’s request for a full rear lot excavation is unprecedented, and the magnitude of the request, if granted, would compromise the 1860-77-constructed building.
(g) Although there is a structure at the rear of 2926 P Street, NW, which has been claimed as an “approved” precedential structure, that structure was never reviewed nor approved by either CFA or OGB, because the planned structure, a conservatory, was represented as supposedly not visible from the public space, and would not have been something that the CFA or the OGB would have assessed for compliance with the District’s historic preservation standards. However, the constructed end product was markedly different from what was represented to be constructed, including a reputed below surface major excavation and taller than previously indicated.
(h) Indeed, if that other structure had been drawn as it was subsequently constructed, it would have met the visibility criteria, and should have come before the CFA/OGB. CFA would surely have objected to that application, with most likely OGB concurrence, had it been known and considered. Although this structure is being cited as a precedent, if it was done as now being represented, it was not done consistent with the legal process for review, as the end product was at variance with what was submitted to the District of Columbia for initial review and approval.
addition to opposing the current application on the basis of its adverse impact
upon the Historic District, there is also a question of whether there is a
potential occupancy rule violation, as well more than 60% of the lot would be occupied
for residential purposes if this subterranean structure is allowed. That is a
decision which the zoning authorities would have to decide, as there are no
historic preservation rules extant in
5. Jose Martinez, CFA staff member, testified with regard to this application. Based upon his testimony, the Mayor’s Agent finds:
(a) With regard to the alleged
precedent-setting construction at
(b) Historically, two prior instances come to mind. One was an extension of about 10 feet square. That addition was vastly different from this proposal, and included yard space for terracing and landscaping, while this current proposal, other than a small grassy plot, does not include that possibility.
(c) The other case, proposed about 15 years ago, was never built. Unlike in the matter currently before the Mayor’s Agent, the design in that instance included in-ground placement for landscaping around the addition.
6. Timothy Denee, Architectural Historian, D.C. Office of Planning, testified. Based upon his testimony, the Mayor’s Agent finds:
(a) This is a novel case for the Mayor’s Agent. The Act at § 2(a)(1) recites its purpose, and places significant emphasis upon historic landscapes and open spaces, with specific reference that these green spaces should be protected and maintained as significant landscapes in their own right or a contributing features of historic landmarks and districts. See HP 2.5 et seq., Historic Landscapes and Open Space.
Historic Preservation Office generally does not take a position with regard to
sparing a specific tree when that tree, as a component, is not particularly
recognized as a central element to a recognized landscape. However, the Office believes
that the principles of the Comprehensive Plan are important in order to maintain
the charters tics and qualities of the informal landscape in
is aware of at least two prior underground additions requests. The first request,
in about 2003, related to
second request was determined earlier in 2007. The CFA determined that the
mater was outside of its jurisdiction. The project, located at
(e) Both of the above-noted cases are distinct from the current application. The current application represents well more than the entire footprint of the rear yard, whereas the prior cases did not.
Linda Pfeifle, next door neighbor,
(a) Neither she nor her husband, Albert Amori, opposes the concept of an underground addition, including the significant excavation that would be included in making the project. However, when they constructed their own addition, they encountered significant underground water, as have other neighbors who have done some construction. Their concern is, recognizing that there are a number of underground springs and water pools in the area, how are the Applicants planning to address this issue.
(b) Their additional concern, beyond water issues, is that no structural damage occur to their own property, considering the project’s immediate proximity to their residence, and the possibility that construction under the Applicants’ house and rear yard might cause extensive damage to this witness’s adjacent residence and yard, in addition to creating a new space for water to begin flowing into. Something would have to be done to assure that no water backup came over to their property.
8. Peter F. Bross, M.D., an immediately
adjacent property owner of
(a) He generally supports reasonable renovations;
(b) In this instance, he is highly concerned about the major noise, nuisance, and disruption that the construction would bring to his rental tenants during the construction phase;
(c) The narrow shared driveway between the Bross and the Applicants’ property, would prohibit the use of heavy excavation equipment being utilized at the excavation site, necessitate the use of much smaller equipment, and the transport of the excavated dirt through the narrow driveway to a truck that would be parked on P Street, in front of the property;
(d) Even bringing in smaller excavation equipment is risky in such a tight space, and might damage either his house or the wall enclosing his garden as they pass through the alley; and
(e) The roots of one or more mature Magnolia trees which abut the construction site will be damaged.
(f) Applicants have yet to advise him of their plans, but that if they are willing to address his concerns and satisfy his current apprehensions, including a willingness to ameliorate potential damage, he would be willing to reconsider his current opposition to the proposal.
9. No individuals or organizations applied for or were granted Party Status in this matter. Other than the CFA’s recommendation against the granting of this application, no organizations filed any opposition to the proposed alteration. The record reflects that on May 15, 2007, the D.C. Historic Preservation Office issued a letter addressed to Advisory Neighborhood Commission (the “ANC”) 2E, 3265 S Street, N.W., Washington, D.C. 20007, formally notifying them of the pendency of this application for an alteration. There was no response from the ANC, either in written or testimonial form.
The Applicant is requesting that the proposed alteration be approved as necessary in the public interest by virtue of being consistent with the purposes of the Act. The standard of review of a permit application for an alteration to be approved under D.C. Official Code § 6-1105(f) requires that no permit for alteration subject to this subchapter shall be issued unless the Mayor finds that such issuance is necessary in the public interest, or that a failure to issue a permit will result in unreasonable economic hardship to the owner. No claim of economic hardship has been asserted in this matter.
[“N]ecessary in the public interest”, as defined in § 6-1102(10), is “... consistent with the purposes of the act, as set forth in [§ 6-1101(b)] or necessary to allow the construction of a project of special merit.” The Applicant bears the burden of proof to establish that the proposed alteration of the building is necessary in the public interest, and that the alteration is consistent with the purposes of the Act.
With respect to properties that contribute to the character of historic districts, pursuant to § 6-1101(b)(1), the purposes of the Act are as follows: a) To retain and enhance those properties which contribute to the character of the historic district and to encourage their adaptation for current use; and b) To assure that alterations of existing structures are compatible with the character of the historic district.
Looking at this application as a
whole, including the case file record established herein, the Mayor’s Agent has
several concerns about precedent, and what implications an approval might
convey for future applications for approval to construct underground
excavations and constructions of below surface rooms, primarily for residential
uses. As the Mayor’s Agent understands his role and the state of the current
historic preservation laws of the
The question before the Mayor’s Agent is whether the effect of the proposed alteration construction will topographically compromise what has been designated as a part of the Historic District. Other than the removal on one mature tree that all parties agree is located on the Applicants’ land, and assuming that the construction plans are fully adhered to, there will be no change in the topography. Once the constructed great room is completed, it will be buried beneath the existing driveway and garage, not at all visible on the surface. As well, the current bricked patio will be removed, converted to green space, a grass yard. I conclude that, in granting this application, and based upon what has been represented to the Mayor’s Agent as to how this project will be implemented, there will be no adverse impact on the visible or landscaped character of this site.
other issues, including environmental impact and the potential for
“catacombmization” of the residential city, which are beyond the Mayor’s
Agent’s jurisdiction, but that may have major impact and ultimately be
determinative of whether this project will ever be realized. The zoning authorities
may have to determine whether the subterranean construction aspect of this
project impacts present laws which address and limit the occupancy of the site
to no more than 60% of the lot. Perhaps the Council of the
There exists a real concern regarding the potential impact that this project will impose upon the roots of one mature Magnolia tree. But the record is unclear and conflicted about how close the root ball of the tree is to the area to be excavated. All precautions should be taken to save the tree, as an applicant who is in a position to financially underwrite such an ambitious residential construction project, should likewise be in a position to employ state of the art procedures to assure the survival of a mature tree that is close to the property line, especially in light of awareness that one of the major tenets of opposition to the application was based upon possible damage, or even death to the tree in question.
Agent is unaware of any law, regulations, or policy which addresses the issue
of subterranean construction. For example, the D.C. Official Code was written long
before the residents of the
The CFA and both adjacent neighbors expressed concerns that this type of construction might well disturb and disrupt existing underground springs and pools of water. Further, the adjacent buildings are very old and have shallow ruble foundations. Excavation under the Applicants’ property, even if precautions are taken, might still be dangerous to the adjacent buildings, not solely because of the nature of the foundations, but because of the presence of water. Great care must be taken to assure that only state of the art drainage systems are employed, as the construction on this addition, without first assuring that there will be no water problem, will assuredly lead to a continuing water problem later, which might not be easily accessed and abated.
Although more than one witness expressed amazement at the magnitude and practicality of the project, including the potential costs that will be incurred incidental to all phases of construction in this project. However, it is not the role of the Mayor’s Agent to address the issue of “practicality”, if the legal components that are within his statutory jurisdiction are addressed, satisfied, and within the intent of the preservation law. He did accept the representation of the Applicants’ agent that they were financially able to complete the project.
The CFA has recommended against this application. Nor is the OGB in favor. However, their arguments are based upon concerns about what precedent might be set, and the loss of a mature tree. Neither entity presented any sustainable legal argument as to why this application should not be granted. Indeed, the Mayor’s Agent is not convinced that there is a currently sustainable legal argument that could deny this application and project, given the silence in the current laws, regulations, and policies governing subterranean residential construction in historic districts, particularly when the topography will be undisturbed, and the end product is likewise not visible from the public space.
The Mayor’s Agent approves Applicants’ request for the French door to replace the current garage doors, cutting into the current garage wall to insert a new door, and for two pyramidal skylights to be inserted into the newly grassed rear yard. Despite disagreement between the Applicants and some of the witnesses, the Mayor’s Agent does not believe that they will be visible from the public space. Additionally, if the skylights are slightly visible, in their present planned configuration, perhaps they can be modified to render then less so, or not visible at all.
The Mayor’s Agent finds, therefore, that Applicants’ request to construct a subterranean addition to their home is necessary in the public interest, and character of the Historic District as a whole. The Mayor’s Agent further finds then, that the proposed alteration is likewise consistent with the purposes of the Act, in that issuance of a permit would retain and enhance this historic property while compatibly altering it to serve current uses.
CONCLUSION OF LAW
Based on the entire record in this matter, including the provisions of the Act and testimony and evidence submitted by the Applicants, the Mayor’s Agent concludes as a matter of law that the Applicants have sustained their burden of proof that the approval of this application for the excavation and subterranean alteration is necessary in the public interest because it is consistent with the purposes of the Act. The Mayor’s Agent, having duly considered the recommendation of the CFA against the granting of this application, and likewise the concerns expressed by OGB, which were also against this approval, is not persuaded by the recommendations.
The foregoing have been considered, it is this 23rd day of October, 2007,
ORDERED, that the Application for the Alteration of 3259 P Street, NW, Square 1232, Lot 51, H.P.A. No. 07-132, O.G. 07-087, to add a subterranean residential addition to the above-noted residence, is hereby, GRANTED, because the alteration is necessary in the public interest, and is consistent with the purposes of the Act; and it is
FURTHER ORDERED, that pursuant to D.C. Official Code § 6-1112(a), this Order shall take effect fifteen days after issuance.
Senior Administrative Law Judge, and
Mayor’s Agent for Historic Preservation
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing decision and order was served this 23rd day of October, 2007, by mailing a copy of the same via electronic mail or U.S. Mail, postage prepaid, or both, to the following:
and Mrs. Aarno Liuksila, Applicants First
E. Boeckl, Agent First class
Boeckl Gates Architecture, Planning,
and Interior Design
David Maloney, Deputy Program Manager
Historic Preservation Office
D.C. Office of Planning
Email to: firstname.lastname@example.org
Tersh Boasberg, Chair
Historic Preservation Review Board
Email to: email@example.com
Ed Solomon, Chair, ANC 2E
Email to: Anc2e@erols.com
Associate Director for Technical Services
Email to: firstname.lastname@example.org
 From a certain perspective, the essence of what the Applicants are seeking to undertake might possibly be considered as new construction, and guided by the directives of D.C. Official Code § 6-1107, New Construction, i.e., “ . . . to construct a building or structure in an historic district . . . ”. However, the application is being processed as an alternation to an existing structure, which is defined at 10A DCMR 9901, Alteration, as, “A change in the exterior appearance of a building or structure or its site, not covered by the definition of demolition, for which a permit is required; except that alter or alternation also means a change in any interior space which has been specifically designated as a historic landmark.” The latter provision is clearly inapplicable to the current application, as there is no specific designation of the interior space.
 The Mayor’s Agent selected this square footage estimated figure based upon a review of the plans. Boeckl’s testimony pegged the bricked area as smaller, closer to approximately 350 square feet.
 According to LB, only about 50% of the area beneath the garage will be dug out.
 The witness’s testimony is that the bricked area is about 300 square feet. However, the Mayor’s Agent’s review of the submitted plans indicated that the site is larger, perhaps 450 square feet.
 Webster’s Dictionary,