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GOVERNMENT OF THE DISTRICT OF COLUMBIA

THE OFFICE OF PLANNING

HISTORIC PRESERVATION OFFICE

801 North Capitol Street, NE

Third Floor

Washington, DC 20002

 

 

____________________________

IN THE MATTER OF:                                         )

                                                                                )

Application of Equity Appreciation                  )

Partners Capital Fund 1 LLC                                    )

                                                                                )

For Subdivision of the:                                      )                     H.P.A. No. 07-267

                                                                                )

Williams-Addison House                                  )                   

1645 31st Street, NW                                                   )                    

Square 1282, Record Lot 277                            )

_______________________________)

 

DECISION AND ORDER

 

BACKGROUND

 

This matter came before Rohulamin Quander, Senior Administrative Law Judge and the Mayor's Agent for Historic Preservation (the "Mayor's Agent") on September 10, 2007. Pursuant to the District of Columbia Historic Landmark and Historic District Protection Act of 1978, as amended (the "Act"), D.C. Official Code  (“D.C. Code”) § 6-1101 et seq. (2001), the matter was referred by the District of Columbia Historic Preservation Review Board (the “HPRB”) upon its denial of a subdivision application filed by the Applicant, Equity Appreciation Partners Capital Fund 1 LLC (The “Applicant”).

 

The Applicant seeks permission to create two record lots. The real property is located at 1645 31st Street, N.W., Washington, D.C., and is known of record as Lot 277 in Square 1282 (the “Property”). The administrative hearing was conducted in accordance with the requirements of Title 10A of the District of Columbia Municipal Regulations ("DCMR"), and Chapters 1-99 and the District of Columbia Administrative Procedure Act, D.C. Code § 2-509 (2001). The record closed on October 24, 2007, upon receipt of the respective parties’ filing their proposed final decision and order for the Mayor’s Agent’s consideration.

 

The Property, also known as (The Williams-Addison House), is an individually designated landmark listed in the D.C. Inventory of Historic Sites, and is also a contributing building in the Old Georgetown Historic District. Pursuant to Section 6-1106(b) of the Act, the application was referred to the HPRB for review. 

 

At its public meeting held on June 28, 2007, the HPRB reviewed the application, and then voted to adopt its Staff Report and Recommendation (“Staff Report”), which recommended that the subdivision be denied on the basis that the application was inconsistent with the purposes of the Act. The Application was then referred to the Mayor’s Agent for consideration at a public hearing. 

  The Applicant was represented by John Epting, Esq., and Christine Roddy, Esq., of Pillsbury Winthrop Shaw Pittman LLP. Anne H. Adams, also of Pillsbury Winthrop Shaw Pittman LLP, was qualified as an expert in architectural history and testified on behalf of the Applicant. 

 

On August 27, 2007, the Friends of the Williams-Addison House (“Friends”) filed a timely Request for Party Status. On that date, they also filed a Statement in Opposition to the Application. The Mayor’s Agent granted the Party Status to the Friends, which also accorded them the right to officially oppose the granting of the Application. The Friends were represented by Richard B. Nettler, Esq., and Kinley R. Dumas, Esq., of Arent Fox LLP. Emily Hotaling Eig of EHT Traceries, Inc. was qualified as an expert in architectural history. She testified on behalf of the Friends, and in opposition to the Application. The Mayor’s Agent also granted Party Status in opposition to the Application to Advisory Neighborhood Commission 2E (the “ANC”), which area includes the district where the property is located.

 

Others testifying in opposition to this Application were: a) Robert P. Gabriel, a neighboring property owner; b) Charles F. Eason, Jr., an ANC commissioner, appearing on behalf of ANC 2E; c) Timothy Dennee, Architectural Historian, D.C. Office of Planning; d) Thomas Luebke, Secretary of the Commission of Fine Arts (the “CFA”); e) Eve Barsoum, Architectural Historian, CFA; and f) Barbara Zartman, on behalf of the Citizens Association of Georgetown. The Mayor’s Agent also received several letters in opposition to the granting of this Application.

 

   Based upon the evidence in the entire record of this proceeding, including all written and oral testimony submitted at the administrative hearing and the recommendation of the HPRB, the Mayor's Agent concludes that the Application for subdivision should be DENIED.

 

Pursuant to D.C. Code § 6-1106(e), no subdivision shall be admitted to record unless the Mayor finds that admission to record is necessary in the public interest or that a failure to do so will result in unreasonable economic hardship to the owner. The Applicant contends that the proposed subdivision is necessary in the public interest because it is consistent with the purposes of the Act.

ISSUES

 

The initial issue to be decided is whether the Applicant has met the burden of proof to establish that the requested subdivision involving the landmark Williams-Addison House is necessary in the public interest because it is consistent with the purposes of the Act. 

 

However, during the course of the hearing before the Mayor’s Agent, a secondary issue arose, which the Mayor’s Agent will address as a component of this Decision and Order. The second issue is whether Assessment and Taxation (“A&T”) lot subdivisions are covered by the subdivision provisions of the District of Columbia preservation law, and therefore within the jurisdiction of the HPRB and Mayor’s Agent.

 

FINDINGS OF FACT

 

The Mayor's Agent, having reviewed all of the documentary evidence presented in this matter, and the sworn testimony of several credible witnesses, and having reviewed the same and given the proper weight to the expert testimony presented, now makes the following Findings of Fact: 

 

Jurisdiction, Procedural History, and Standard of Review

 

1.       In accordance with D.C. Code § 6-1106 (the “Act”), the Applicant submitted to the Office of the Surveyor an application for subdivision of the Williams-Addison House (the “Application”). The Application was forwarded to the HPRB as H.P.A. No. 07-267.

 

2.      On June 28, 2007, HPRB reviewed the Application at its regularly scheduled public meeting, and adopted the staff report which recommended denial of the Application for subdivision. HPRB found that the proposed subdivision was inconsistent with the purposes of the Act. [1]

 

3.      Pursuant to § 6-1106 of the Act, the Mayor or the Mayor's designated agent must consider the merits of any subdivision applications for individually-designated landmarks. In accordance with the Act, the Application was referred to the Mayor's Agent for an administrative hearing. A timely notice of hearing was published in the D.C. Register on August 3, 2007.

 

4.      D.C. Code § 6-1106(e) states that no subdivision subject to the Act may be admitted to record unless the Mayor finds that the admission to record is “necessary in the public interest” or that a failure to do so will result in unreasonable economic hardship to the owner. 

 

5.      The term “necessary in the public interest” is defined in D.C. Code § 6-1102(10) as “consistent with the purposes of this subchapter, as set forth in D.C. Code § 6-1106(b), or necessary to allow for the construction of a project of special merit.”  The Applicant has not asserted that the subdivision is either necessary to construct a project of special merit or that the denial will result in unreasonable economic hardship. Rather, the Applicant only claims that the subdivision is consistent with the purposes of the Act.

 

6.      The Applicant bears the burden of proof to establish that the proposed subdivision of the landmark is necessary in the public interest.

 

7.      Appropriately, the Act sets forth various purposes with respect to landmarks and historic districts. As the Mayor’s Agent has previously held:

 

Not all purposes are relevant to all proposed actions. With respect to historic landmarks, pursuant to D.C. Code § 6-1106(b)(2), the relevant purpose of the Act is:

 

·       To retain and enhance historic landmarks in the District of Columbia and to encourage their adaptation for current use; and

 

With respect to buildings in historic districts, and pursuant to D.C. Code § 6-1106(b)(1), the relevant purposes of the Act are:

 

·       To retain and enhance those properties which contribute to the character of the historic district and encourage their adaptation for current use; and

 

·       To assure that new construction and subdivision of lots in an historic district are compatible with the character of the historic district.[2]

 

The Subject Property

 

8.     The subject Property is located at 1645 31st Street, N.W., and consists of record Lot 277 in Square 1282, which is bounded by Avon Lane, a named public alley, on the south; 31st Street on the west; the historic Dumbarton Cooperative to the north; and multiple dwellings to the east, which are not contributing buildings in the Old Georgetown Historic District. The site contains approximately 31,982 square feet of land area.

 

9.      The subject Property is presently improved with the Williams-Addison House. The form and appearance of the Williams-Addison House evolved over many years. The original house was constructed c1815-1817. The third floor was added in 1880, giving the house its current Second Empire appearance. A two-story service addition was built in 1890. A small addition on the north inside corner of the house was built in the late twentieth century. A stable and carriage house was constructed in 1899, and a garage was erected in 1930. A tennis court was added in the 1930s.   

10.   The Williams-Addison House was individually designated as a historic landmark, and   placed on the D.C. Inventory of Historic Sites on November 8, 1964. It is included in the Large Houses and Mansions subsection of the Georgetown (1751-1895) section of the Inventory. Further, it is also a contributing building in the Georgetown Historic District.    

11.   The subject Property is one of Georgetown’s few remaining nineteenth-century large- or mid-size estates, and is intact to its nineteenth century appearance. The lot on which the Williams-Addison House sits has been extant since approximately 1858.

12.  A number of prominent Washingtonians have resided in the Williams-Addison House through the centuries, including Harriett Beall Williams, Clarence Phelps Dodge, a notable philanthropist, and Alfred Friendly, a Pulitzer Prize winning journalist. The Applicant purchased the property in March 2006 from the Friendly estate

13.  Pursuant to the Zoning Regulations, only one single-family house is permitted on a record lot without relief from the Board of Zoning Adjustment (11 DCMR Section 2516). In order to construct the additional single-family house, the Property must be subdivided into two separate record lots. On May 23, 2007, the Applicant filed the Application with the District of Columbia Office of the Surveyor to divide Lot 277 in Square 1282 into two separate record lots, each accommodating one single-family house, one being the existing landmark house.   

14.  Because the narrative description to support the initial designation of the property in 1964, was lacking, ANC 2E, a Party herein, filed an application with HPRB on June 14, 2007, to amend the historic landmark designation, to provide a narrative of the significance of the landmark. The amendment was accepted by the Mayor’s Agent as hearing exhibit No. 23.   

15.   The Landmark Amendment states, in part:

This three-quarter acre lot remains a significant open space in Georgetown and recalls the character of Georgetown Heights during Georgetown’s nineteenth century heyday. The property’s continuing existence as a single-family residence on a large lot illustrates a long and significant association with two of Georgetown’s oldest families, the Bealls and the Williamses, and establishes their relationship with the internationally-influential Russian Bodisco family. Its association with these families reveals significant information about the patterns of original subdivision, architecture, land holding, and inheritance of nineteenth century Georgetown . . .  . Finally, the property carries additional significance as the subsequent home to, among others, notable philanthropist Clarence Phelps Dodge and prominent journalist Alfred Friendly later in the twentieth century.

 

16. At the public hearing before the Mayor’s Agent, the Applicant and its expert in architectural history testified that the Property had, subsequent to the acquisition by the Applicant, but prior to the filing of the instant subdivision Application, been subdivided into four (4) assessment and taxation (“A&T”) lots without the express review or approval of the HPRB.[3] The Williams-Addison House sits on one lot. The rear portion of the estate, where the tennis courts are located, is another lot. There now two smaller lots on each side of the house, constituting the four T&A lots, of which the latter two are allegedly intended to remain vacant in perpetuity. The Applicant avers that the creation of A&T lots does not constitute a subdivision reviewable by the Mayor’s Agent, and is thus not covered by the provisions of the Act.  As will be discussed in more detail below, the Mayor’s Agent finds that the creation of an A&T lot, which creates a new buildable site (or allows for additions to an existing building on a separate A&T lot) is a theoretical subdivision. As such, this type of lot is subject to meeting the requirements of the Act.

 

Advisory Neighborhood Commission 2E's Recommendation

 

17.   Charles F. Eason, Jr., ANC Commissioner for ANC 2E, testified and noted that the ANC had taken repeated action to recommend denial of the subdivision and further development on the Williams-Addison House Property. In addition, the ANC’s Request for Party Status noted the resolution adopted by the ANC by a vote of 5-1, with a quorum present, at its regularly-scheduled monthly meeting on June 5, 2007, which in part stated:

 

The Commission states its strong objections to subdividing the Williams-Addison House property. Subdivision would be inconsistent with the historic importance of this landmark property as a whole. In addition, the proposed subdivision would create a contorted ‘pipestem’ lot, with supposed access through mature trees and even potentially through existing buildings. The proposal would in fact create access via Avon Lane, a narrow public alley, to which such access is unauthorized and undesireable [sic]. 

 

18. Pursuant to § 1-309.10(d) of the D.C. Code, the recommendations of the ANC are entitled to "great weight" by District agencies. The Mayor’s Agent credits the ANC’s objections to the subject Application and accordingly assigns the required “great weight.”

 

Other Evidence

 

19.  The CFA has no jurisdiction over the issue of subdivision. However, Thomas Luebke, Secretary of the CFA, testified that the application for concept approval of a new single-family residence on the Property was reviewed over a period of several months, and that in July 2007, the Old Georgetown Board forwarded to the CFA a recommendation of concept approval of a new house at the eastern end of the property. He noted further that while CFA considered the application for concept approval of new construction on the Property at its July 19, 2007, meeting, the CFA declined to take final action until the subdivision application was resolved.   

20. Anne H. Adams (“Adams”) was qualified as the Applicant’s expert in architectural history. The essence of her testimony was that, “the history of the house and its residents are not particularly relevant to the consideration of the proposed subdivision  . . .  the proposed subdivision will not compromise the house in any way; it will not alter the history of the house or cause the landmark to lose its integrity.  Only the tennis court will be affected.”  Adams further testified that the period of significance for the Georgetown Historic District was from 1751 to 1950, inclusive, and stated that the two existing adjacent homes on Avon Lane, Lots 257 and 258, were created “for exactly the same reason the subject subdivision is being proposed,” that is, to achieve subdivision where the required street frontage under the Zoning Regulations is not available due the property’s location on a public alley with a width less than twenty [sic] feet.[4]   

21.  Upon cross-examination, however, Adams stated the subdivision of Lots 257 and 258 was made in 1947, when none of Old Georgetown had been designated as historic, and that she did not know whether a similar zoning requirement for frontage on an alley lot of at least 30 feet in width was applicable at that time.     

22. Adams further testified that Lot 860, to the south of the subject property, demonstrated that the proposed subdivision was consistent with the purposes of the Act because it was compatible with the character of the historic district, having also been subdivided into a pipe stem to allow for construction of a home on an alley. Adams then acknowledged upon cross examination that Lot 860 was created after the house on that lot was constructed and prior to the creation of the Old Georgetown Historic District, and had existed as a pipe stem from approximately 1905.   

23. With regards to the subdivision, Adams testified that the Applicant would donate a conservation easement to the L’Enfant Trust, grantee, which would purportedly provide private protection of the green space surrounding the house, which could be enforced by the grantee of such an easement.  She admitted that the terms of the proposed easement were still under negotiation, had not been finalized, and could also be amended by the parties to that easement.

24. Emily Hotaling Eig (“Eig”), principal of EHT Traceries, Inc., was qualified as an expert in architectural history and testified on behalf of Friends, and in opposition to the Application. Eig testified that she prepared the Landmark Amendment on behalf of ANC 2E, and that the retention of the existing lot on the Property is “particularly important because . . . this area was once filled with larger pieces of property that have been broken down and we have an opportunity here to acknowledge and retain for further historians and for the public itself the understanding of this lot by retaining its configuration as it is today.”   

25.  Eig concluded that the designated landmark boundaries for the Property are “appropriate.” They are the exact boundaries that were there in 1858 and likewise the boundaries that were there in 1964, when the property was designated as a landmark. Eig stated that, “we are grateful when we can find pieces of property within a historic district or generally historic landmarks that have such strong integrity of their subdivision land because we understand then how in fact it was used . . .  . The subdivision would inalterably change the historic character of the property.”

26. She further testified that the retention of this property as a single lot using the existing lot lines is an important key to understanding the historic character of Georgetown, understanding how it has developed, the patterns of the lots, how people divided their land from hereditary ownership through many, many years until it was sold out of the family. She noted that the historic community has learned an enormous amount by doing the history of this building, but there is much to be done, to make certain that the other properties on the site which are still undocumented, be documented, so that the community can gain a much better understanding of what Georgetown was and why it looks the way it does today. Given the history and circumstances, to allow this subdivision is just not appropriate, and not in the interest of protecting the character of Georgetown.

  1. Eig noted that the Applicant’s reference to the existence of other pipe stem lots within the Old Georgetown Historic District are not relevant to a discussion as to whether a subdivision of the Williams-Addison House should be allowed, or the subdivision regulations. The Property, herein, was designated as an individual historic landmark with its current configuration, which dates back to 1858. The other subdivisions into pipe stem lots, to which the Applicant has referred, were not subdivisions of designated historic landmarks.

 

Other Assessment and Taxation Lot Subdivisions

 

28.During the Mayor’s Agent hearing, a heated discussion ensured between counsel whether the Mayor’s Agent exercised any jurisdiction over assessment and taxation (“A&T”) lot subdivisions as a component of his statutory authority under the Act. This discussion primarily arose out the rebuttal testimony of Anne Adams, who was recalled to testify.

 

29. On rebuttal Adams testified about another subdivision that had recently been processed by her office, which was inside the period of significance for the Old Georgetown Historic District, wherein an individually-landmarked property was placed into an A&T lot and then converted into a record lot based upon the A&T lot configuration. This process was accomplished without the review or approval of either the HPRB or the Mayor’s Agent. That property was identified as the Beall-Washington House, also known as the Katherine Graham house, an individual historic landmark located on Lot 66 in Square 1283, having an address listed on the D.C. Inventory of Historic Sites at 1647 30th Street, N.W.   

 

  1. Rather than prolong the hearing with a new area of testimony and an initially unexpected discussion on a key issue that had not been raised prior to this point in the proceedings, the Mayor’s Agent directed respective counsel and the ANC to submit post hearing briefs, addressing the issue of whether the Mayor’s Agent had jurisdiction over A&T lots.

 

  1. The Applicant’s assertion against the Mayor’s Agent having jurisdiction hinges upon the theory that the plain meaning of subdivision includes only the division or assembly of land into one or more lots of record. Thusly the jurisdiction of the Mayor’s Agent is dependent upon whether an A&T lot is a lot of record.

 

  1. The Friends contested this position, countering that the term, “subdivision”, and thusly the Mayor’s Agent’s jurisdiction to review A&T lots, does not necessity depend upon whether the lot is a lot or record, but rather whether the A&T lot is a theoretical building site. The Friends provided substantial legislative history documentation to buttress their position. They noted that prior to 1990, the law defined “subdivision” as the division of two or more lots of record, but that that narrow definition and understanding was changed with the amendments to D.C. Law 2-144 (the Act), as further discussed by the Mayor’s Agent, below.

 

  1. The Mayor’s Agent finds that he does have jurisdiction over the issue of A&T lots. In both the matter now at bar, and likewise in the other subdivision matter which was referenced, i.e., the Beall-Washington House (aka the Katherine Graham House), but which circumvented the authority of both HPRB and the Mayor’s Agent, the effect of the un-permitted action created a lot(s) for assessment and taxation purposes, which also resulted in the creation of a potentially buildable subdivision. The creation of the subdivision was a matter that the Council of the District of Columbia expressly placed under the jurisdiction of HPRB to review and decide, and where appropriate to forward to the Mayor’s Agent to determine whether to allow a subdivision to occur in a historic district. This is the process that is enumerated by law, in order to be consistent with the directives of the Act. Further, this is the same process that was ignored in the Beall-Washington matter, thus circumventing the intent of the Act.

 

  1. In neither case was the HPRB given the opportunity to consider and review the legality of the subdivision, and the creation of theoretical lots. As well, if the HPRB, upon consideration, determined that subdivision was inconsistent with the recited purposes of the Act, the HPRB is directed by the Act to refer the matter to the Mayor’s Agent for his determination of whether a subdivision might still be allowed, if found to be consistent with the purposes of the Act. With regard to the present Application, I find that the Applicant’s creation of the A&T lots ## 903, 904, 905, and 906 were achieved in violation of the Act, and that the effects of said violation, i.e., the registration of these A&T lots, must be vacated.

 

  1. Although the Beall-Washington House matter is not specifically before me at this time, I likewise find that the creation of A&T lots at that site, without first pursuing the legal steps mandated by the Act, was an illegal circumvention of the declared intent of the Council of the District of Columbia, when it adopted the 1990 amendments to the Act, and was likewise a violation of the law. Although Adams testified credibly that her office consulted with D.C. Office of Planning staff before recording the T&A lots for the Beall-Washington House, and that said staff allegedly approved and signed off on the creation of these T&A lots without first bringing the matter to the attention of HPRB, it is a well established axiom of common law, that an employee(s) of a municipal agency cannot authorize or approve the commission of an act, which is clearly contrary to a statutory requirement. As well, it remains unclear exactly what amount of information the respective sides disclosed, exchanged, or discussed prior to the sign-off approval for filing the new lot designations.

 


DISCUSSION

 

Subdivision

 

Before any subdivision of a historic landmark or a contributing building in a historic district is admitted to record, the Mayor or his designated agent must find that issuance of the permit is necessary in the public interest or that failure to issue the permit will result in unreasonable economic hardship to the owner. D.C. Code  § 6-1104(e). The term "necessary in the public interest" means that the application is consistent with the stated purposes of the Act or that the proposed demolition is necessary to construct a project of "special merit." See D.C. Code § 6-1102(10). The Applicant has made no claim of special merit.

 

The Mayor’s Agent has previously determined that the Act “contemplates the possibility of both new construction and subdivision of lots in an historic district, provided it is done in a manner compatible and consistent with the character of the historic district. If such a project is executed in a manner consistent with the provisions of the Act, … it will be deemed to be consistent with the public interest as defined by the Act.” See In the Matter of 3124 Q Street, N.W., The Bowie-Sevier House, H.P.A. 98-281.  As discussed further herein, the Mayor’s Agent finds that the Applicant has failed to meet its burden in proving that the proposed subdivision is compatible with the character of the historic district, consistent with the provisions of the Act, and “necessary in the public interest.”

 

As his supposedly precedent and justification for a ruling in his favor, the Applicant relies upon examples of subdivision and development of non-landmark and even non-contributing buildings in support of its argument that the proposed subdivision is compatible with the character of the historic district. Such reliance is not enough to demonstrate that the proposed subdivision of this property is “necessary in the public interest.” Not only is the property a contributing building in the Old Georgetown Historic District, it is also an individually-designated landmark on the D.C. Inventory of Historic Sites. As such, in order for the Mayor’s Agent to make a finding that the subdivision is “necessary in the public interest,” the Applicant must sufficiently demonstrate that the subdivision will actually “retain and enhance” the landmark and allow its adaptation to current use. D.C. Code § 6-1106(b)(2).

 

The Applicant’s only argument that the proposed subdivision will retain and enhance the character of the landmark comes in the form of a promise to donate a conservation easement on portions of the landmark property which the Mayor’s Agent has found have already been illegally converted to A&T lots without the required review under the Act. An unsigned draft of a covenant, which has not been finally negotiated and which can still be amended by private parties, does not serve to protect the open space which surrounds the subject property.

 

This same issue has been raised before. In D.C. Preservation League v. D.C. Department of Consumer and Regulatory Affairs, 656 A.2d 984, at 991 (1994), the District of Columbia Court of Appeals was asked to approve a covenant as a basis for granting a demolition permit. The Court held that the Mayor’s Agent is not a permanent administrative component of the D.C. Government, and is thus bound by the terms of the Act in rendering a decision and in formulating a remedy, not by some private agreement. Further, since the Act contains no language authorizing the Mayor or the Mayor’s Agent to limit the future use of a site once occupied by an historic landmark, the Mayor’s Agent was found to have exceeded his authority in doing so when he attempted to impose a restrictive covenant on the future use of the land. 

 

Consistent with this reasoning, the Mayor’s Agent sees no basis for approving a subdivision here as a means of protecting the open space which surrounds the landmark structures. If approved, this subdivision would have also separated from the main landmark residence, the accessory buildings which have been associated with the residence for over a hundred years, the effect of which would undermine the landmark character of the property.

 

In considering the “dueling testimony of the expert witnesses,” the Mayor’s Agent credits the testimony of Emily Eig, the Friends’ expert in architectural history, in determining that the property is significant not only for the Williams-Addison House’s association with significant persons, but also because it is one of the last remaining estates of this size in the Old Georgetown Historic District and one of the last remaining individually designated landmarks of this size and type. To allow the subdivision of such a significant property would not be consistent with the purposes of the Act.  Additionally, because the Property is already suited to use as a single-family dwelling, and has always remained so, subdivision into four lots of record, so that another house could be built behind the landmark, would do nothing to “adapt the property to current use,” as contemplated by the Act.

 

Assessment and Taxation Lots

 

At the direction of the Mayor’s Agent, and submitted as a post hearing document, each party submitted a brief addressing the issue of whether the HPRB and Mayor’s Agent had jurisdiction under the Act over the creation of A&T lot subdivision of this Property, or any other real property located in a historic district, pursuant to D.C. Code § 6-1101(13).      

 

The Applicant’s position is that neither the HPRB nor the Mayor’s Agent has any jurisdiction with regard to the establishment of A&T lots, which are not buildable lots, but created only for the establishment of ownership and taxation purposes. The Applicant maintained that the Friends are mistaken in their assertion that the establishment of A&T lots constitutes a “subdivision,” within the meaning of the Act, which would mandate review by the HPRB and potentially the Mayor’s Agent.  The Applicant noted that when the amendments to the Act were being considered in 1989-1990, the Friends argued that the legislative history is clear that the Council considered evidence, “that the fact that theoretical lots, or tax lots, are not required to be reviewed frustrates the purpose of the law and provides an enormous loophole to developers seeking to subdivide historic properties.” 

The Applicant then argued that after the Council reviewed evidence and the argument designed to persuade them to include A&T lots within the definition of subdivision, including testimony from the D.C. Preservation League that the Council include “tax” lots within the definition of “subdivision,” nevertheless, the Council adopted language that refers only to lots of record or theoretical building sites, and excluded reference to A&T lots or tax lots altogether. The Applicant cited the Council’s action as clear evidence that it both considered including A&T lots in the legislation, but then made a conscious decision to exclude them.   

Conversely, the Friends succinctly insisted otherwise, by noting that whether the term “subdivision,” which triggers a review by the Mayor’s Agent, encompasses A&T lots, hinges not on whether an A&T lot is a lot of record, but rather it is based upon whether the created A&T lot is a theoretical building lot. If it is a potentially buildable lot, then it is under the jurisdiction of HPRB. The legislative history of the Historic Subdivisions Review Act of 1990 (the “1990 Act”), noted that a major consideration for the passage of the 1990 Act was to “ensure that historic spaces are preserved.”[5]

 

In an effort to close a loophole through which homeowners were escaping, too easily able to sell off their rear or side yards and other parcels of land immediately adjacent to their historic district-based homes, the Council took action, and with the 1990 Act, amended the 1979 law, to place theoretical subdivisions, assemblages, or theoretical assemblages squarely under HPRB’s jurisdiction and review. The obvious intention of the Council was to exercise subdivision control over open land, but not to exercise the same emphasis and limitations upon subdivisions on existing buildings.

 

Having evaluated both positions, the Mayor’s Agent determines that the Friends, who oppose the granting of this Application, are correct in their assertion that “theoretical lots are synonymous with A&T lots.” While the creation of an A&T lot may not always result in a “theoretical” lot subdivision, all theoretical lot subdivisions involve the creation of A&T lots. Further, where a lot that meets all requirements under the Zoning Regulations, but for street frontage, is created through the subdivision of an A&T lot, a theoretical building lot is created. Theoretical building lots are subject to the Act and require the review, in this case, of both the HPRB and the Mayor’s Agent.

 

With regard to the A&T lot issue in this particular case, the Mayor’s Agent finds that the subdivision of this property into two or more A&T lots is subject to the Act pursuant to D.C. Code § 6-1101(13). The Applicant’s actions created through the subdivision into A&T lots, also created a theoretical buildable lot. Theoretical building lots are subject to the Act and require review by the HPRB.

 

Subdivision, its definition, and how subdivision is to be implemented, has been a matter of concern for many years. Under the current zoning regulations of the District of Columbia, “subdivision” is defined as the division or assembly of land into one or more lots of record, including the division of any lot of record into two or more theoretical building sites. Prior to 1990, the 1979 historic preservation law (D.C. Law 2-144), defined a subdivision as the division of a lot into two or more lots of record. Because there was some concern about the fact that certain property owners in historic district were subdividing their property, even selling off their backyards to developers, testimony on the issue of subdivision was made a matter of the record.

 

When the Council was considering the amendments to D.C. Law 2-144, David Bonderman, former officer in Don’t’ Tear It Down, a forerunner to the D.C. Preservation League, addressed the issue. For the record, the Council received the following testimony:

 

Subdivision controls are necessary because in some of our historic districts some owners have recently begun to sell off their backyards as building lots. If allowed to continue, this will greatly change the character of our neighborhood historic districts, which draw a good part of their character from the existing open space and the intermixture of detached and row houses.

 

In such circumstances, it may well be appropriate to allow no new construction at all. This can be done by controlling subdivision. However, once a subdivision is allowed, and the backyard sold off as a building lot, it will be impossible to preclude some kind of building from being built.  . . . Hence, subdivision controls are most important.

 

   To give added protection to historic properties, in 1990, the Council amended D.C. Law 2-144 and the subdivision definition, in particular. In amending the Act in 1990, the Council made clear that the purpose of its amendment to the subdivision regulations was to ensure that open spaces in particular were preserved. They amended  the definition of the terms “subdivide” and “subdivision” of the Act to “close a ‘loophole’ in the 1979 law that provides that the Historic Preservation Review Board need only review record lot subdivisions. The new law also placed theoretical lot subdivisions, assemblages, or theoretical assemblages under the HPRB’s purview.” See Council of the District of Columbia Report on Bill 8-274, the “Historic Subdivisions Review Act of 1990,” October 23, 1990. When the 1990 Act was passed, both the Council and those urging the amendments understood that theoretical lots are synonymous with A&T lots.

 

 

In addition, it should be likewise clear that in passing the amendments to the subdivision regulations, the Council intended to ensure that qualifying open spaces, like the property that is the subject of this proceeding, should be preserved.

 

   Since the adoption of the 1990 Act, the Mayor’s Agent has reviewed numerous subdivision requests including the creation, subdivision, and assemblage of A&T lots.  More specifically, this Mayor’s Agent, who has served in this capacity since 1998, has routinely dealt with subdivisions which included A&T lots that a party wished to build on. Those cases demonstrated that the Mayor’s Agent has and continues to exercise authority over the creation of A&T lots, particularly where those A&T lots are synonymous with theoretical lots, which are included in the definition of subdivision in the District of Columbia Code.  See O.S. No. 91-261, In Re:2501 Pennsylvania Avenue (Luzon Apartment Building); In Re: Lot 3, Square 2224, 2325 Porter Street (Greystone), H.P.A. 96-307; In Re: Germuiller Row, H.P.A. 01-144, and S.O. #3154; In Re: The Owl’s Nest, 3031 Gates Road N.W., H.P.A. No. 02-635; In Re: American Pharmacists Association, 2215 Constitution Avenue, N.W., H.P.A. No. 03-286; In Re: Tregaron, 3100 Macomb Street, N.W., H.P.A. No. 04-145; and In Re: Lots 1189 and 1190-Square 1320, 3905 Mansion Drive N.W. (“Hillandale”), H.P.A. No. 98-186.

 

CONCLUSIONS OF LAW

Based on the foregoing Findings of Fact, the Mayor's Agent now makes the following Conclusions of Law: 

 

1.         No subdivision of an historic landmark or a contributing building within a historic district may be admitted to record "unless the Mayor finds that the subdivision is necessary in the public interest, or that failure to issue a permit will result in an unreasonable economic hardship to the owner."  D.C. Code § 6-1106(e). The term "necessary in the public interest" means that the application is consistent with the stated purposes of the Act or that the proposed demolition is necessary to construct a project of "special merit." D.C. Code § 6-1102(10). The Mayor's Agent concludes that the Applicant has not claimed, nor has he demonstrated, that the project is one of special merit. The Mayor’s Agent further concludes that the Applicant has not met its burden of proving that the subdivision is necessary in the public interest.

 

2.        Pursuant to D.C. Code § 6-1106(b)(2), the relevant purpose of the Act is: to retain and enhance historic landmarks in the District of Columbia and to encourage their adaptation for current use. With respect to buildings in historic districts, and pursuant to D.C. Code § 6-1106(b)(1), the relevant purposes of the Act are: a) To retain and enhance those properties which contribute to the character of the historic district and encourage their adaptation for current use; and b) To assure that new construction and subdivision of lots in an historic district are compatible with the character of the historic district.”[6]

 

3.        The Applicant has failed to demonstrate that the subdivision of the landmark Williams-Addison House will retain and enhance the historic landmark or encourage its adaptation for current use. Nor has the Applicant demonstrated that the subdivision is compatible with the character of the historic district. 

 

4.        To the contrary, the evidence demonstrates that the subdivision would degrade the character of the existing landmark property, which boundaries have remained unchanged since 1858 and demonstrate the historical patterns of development in Old Georgetown. Under these circumstances, the proposed subdivision is not compatible with the character of the historic district. 

 

5.         With respect to the assessment and taxation lots created on the subject Property, the Mayor’s Agent concludes that the Assessment and Taxation Subdivision submitted into evidence in this matter, created a theoretical building site which is subject to review by the HPRB and Mayor’s Agent under the Act, and that the A&T lot subdivision on the subject property should not have been admitted to record by the Office of the Surveyor without prior review and approval of the Mayor’s Agent for Historic Preservation. Accordingly, the Mayor’s Agent concludes that said subdivision must be vacated, and that the Office of the Surveyor must take immediate steps to restore the earlier boundaries of Record Lot 277.

 

6.        The Mayor’s Agent cannot condone the action that Applicant undertook and completed on the property known as the Beall-Washington House. Although that matter is not presently before me, the Applicant has testified on the record how A&T lots were established at that site, and it seems clear that this result was achieved without prior approval from the HPRB, and potentially being first reviewed by the Mayor’s Agent. That a Historic Preservation Office staff person might have “authorized” this Applicant to proceed in a manner contrary to statutory mandate, does not excuse the Applicant from having to comply with the law, once it is learned that a few months ago, an improper action occurred.

 

7.         Consistent with the provisions of D.C. Code § 1-309.10(d), the Mayor’s Agent will accord “Great Weight” consideration to the position of the ANC, which is a Party of record opposed to the granting of this Application.

 

ORDER

 

Accordingly, it is this 20th  day of February 2008,

 

       ORDERED that the application for subdivision of the Williams-Addison House into two lots of record be, and the same is hereby, DENIED; and, it is

      

FURTHER ORDERED that, pursuant to D.C. Code § 6-1106, the subdivision of Lot 277 in Square 1282 into Assessment and Taxation Lots 903, 904, 905, and 906 violated the Act and the same is hereby VACATED. The Office of the Surveyor shall, within 30 days of the date of this Order, restore the original boundaries of Lot 277 in Square 1282 and vacate A&T lots 903, 904, 905 and 906; and, it is

 

FURTHER ORDERED that, pursuant to the D.C. Code § 6-1112(a) (2001) and 10A DCMR § 2523.4, this Order shall take effect fifteen (15) days from the date of service as evidenced by the attached Certificate of Service pursuant to 10A DCMR § 2523.5(c).

 

 

 

___________________________________

ROHULAMIN QUANDER,

Senior Administrative 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 20th day of February 2008, by mailing a copy of the same via either electronic mail or via first class U.S. Mail, postage prepaid, or both, to the following:

 

 

John Epting, Esq.

Christine Roddy, Esq.

Pillsbury Winthrop Shaw Pittman LLP

2300 N Street N.W.

Washington D.C. 20037

john.epting@pillsburylaw.com

Counsel for Applicant

 

 

David Maloney

Historic Preservation Office

D.C. Office of Planning

david.maloney@dc.gov

 

 

 

Charles Eason, Advisory Neighborhood Commission 2E

2E@anc.dc.gov

Charles.eason@anc.dc.gov

 

 

Richard B. Nettler, Esq.

Kinley R. Dumas, Esq.

Arent Fox LLP

1050 Connecticut Avenue, N.W.

Washington, DC 20036-5339

nettler.richard@arentfox.com

Counsel for Friends of the Williams-Addison House

 

 

Janette Anderson

Associate Director for Technical Services

Georgetown University Law Center Library

anderjan@law.georgetown.edu

 

 

Tersh Boasberg, Chairman

Historic Preservation Review Board

tershboasberg@aol.com

 

__________________________

Certifying Officer

                                                                                                                    

                                                                                              

 

 

 

 

 

 



[1] In denying the requested subdivision, the chairman of the HPRB remarked, “It's a very, very high burden which the applicant must reach here because this is about the highest level that you can have a historic property, not only landmark contributing, it's a . . . historic landmark in the District, it's extremely important.” HPRB Public Meeting Transcript (June 28, 2007), p. 331.

 

[2] See In the Matter of Bowie-Sevier House, 1521 32nd Street, NW, HPA Case No. 06-007.

 

[3]      See Exhibit 7, Real Property Tax Bills for Square 1282, Lots 903, 904, 905, and 906.

[4] The witness misspoke. She meant to say, “thirty feet.”

[5] See the legislative history, i.e., Council of the District of Columbia Report on Bill 8-274, the “Historic Subdivisions Review Act of 1990, October 23, 1990

[6] In the Matter of Bowie-Sevier House, HPA Case No. 06-007.