Decision Summary HPA No. 08-437
- HPA Number
- Building Name
The Heritage Foundation
- 227 Pennsylvania Ave. SE
2022 14th St. SE
- Date of Order
HPA Number: 08-437
Case Name: In the Matter of Heritage Foundation
Location of Property: 227 Pennsylvania Ave., SE; Square 762, Portion of Lot 58
Date of Decision: September 4, 2009
Type of Case/Type of Permit Sought: Alteration
Subject Matter(s): Alteration; Compatible; Mayor’s Agent – Procedural; Necessary in the Public Interest; Consistent with the Purposes of the Act; Façade; Historic District - Contributing Building;
Summary of Decision:
The Heritage Foundation (“Applicant”) sought a permit to add a third story to a two-story commercial building it owns at 227 Pennsylvania Ave., SE (the “Building”). The completed project would be used for offices, a conference facility, and meeting rooms. The Building is a contributing structure in the Capitol Hill Historic District and is listed in the District of Columbia Inventory of Historic Sites and the National Register of Historic Places.
Applicant submitted two design options for the proposed third story, a Contemporary Design Option and a Traditional Design Option. The addition of a third floor is part of a larger project that also would replace the non-contributing storefront with one that is contributing, and would remove the two non-contributing rear additions. The DC Historic Preservation Review Board (“HPRB”) previously recommended, and the Mayor’s Agent previously cleared, replacing the non-contributing storefront and removing the non-contributing additions.
Pursuant to Section 6(b) of the Historic Landmark and Historic District Protection Act of 1978 (the “Act”), the Mayor’s Agent referred the Application to the Commission on Fine Arts (“CFA”), which found both design options acceptable and did not object to clearing the application. Though no referral to the HPRB was required, the Mayor’s Agent nonetheless asked it for a recommendation. The HPRB declined to recommend either proposed design and instead recommended a design that set the third floor 20 feet back from the façade of the Building.
Applicant requested a hearing, which the Mayor’s Agent noted was to be a de novo review of the Application and not a review of the HPRB’s recommendation. Applicant claimed the proposed alteration was necessary in the public interest because it is consistent with the purposes of the Act, specifically (1) retaining and enhancing those properties which contribute to the character of the historic district and encouraging their adaptation for current use; and (2) assuring that alterations of existing structures are compatible with the character of the historic district.
The Capitol Hill Restoration Society (“CHRS”) requested and was granted party status in the proceeding. CHRS opposed the Application.
Both design options were presented to the applicable Advisory Neighborhood Committee (the “ANC”), which voted 7-1 to approve both designs.
The Mayor’s Agent found that the project included many enhancements to the features of the Building that contribute to the character of the historic district, such as restoring the façade to its historic appearance, installing new wood windows on the second floor, and installing a new, compatible store front. The proposals will also adapt the building for current use by excavating the basement to provide for full height, lowering the first floor to provide handicapped access, replacing the non-contributing addition in the rear with a new addition, and constructing a third floor addition.
The Mayor’s Agent ultimately ruled that the project “retains and enhances a property that contributes to the character of the Capitol Hill Historic District, encourages adaptation for current uses, and is therefore consistent with the purposes” of the Act.
The Mayor’s Agent found that both design options presented were consistent with the purposes of the Act. Opponent CHRS claimed that the new third floor is not historically accurate and would draw attention away from decorative brickwork, and would introduce a “saw-tooth” height differential between it and other buildings on the block. The Mayor’s Agent disagreed, finding that both designs consider the width of Pennsylvania Ave., SE, and neither design alters the character defining features of the façade or surrounding buildings. The proposed alteration would also be consistent with varying rooflines on the block and with the Capitol Hill Historic District.
The Mayor’s Agent noted that both parties spent much effort on the question of whether a visible vertical addition to a contributing building was permissible. The Mayor’s Agent found that vertical additions are allowed for the simple fact that the Act does not prohibit them. CHRS’s concern that approval of this application might result in the filing of similar applications cannot serve as a basis for denying a permit clearance.
The Mayor’s Agent concluded as a matter of law that the Application was consistent with the purposes of the Act and cleared the permit for purposes of historic preservation review.
Mayor’s Agent – Procedural:
- It is the Applicant’s burden to prove consistency with the purposes of the Act, which is a heavy one.
- Section 6 of the Act requires that the Mayor review applications for building permits that seek to alter a building located in a historic district. If the Mayor can make one of the findings set forth in Section 6(f), the permit can be cleared for historic preservation purposes.
- Pursuant to Section 6(b) of the Act, and under Sec. 1 of the Shipstead-Luce Act (46 Stat.366; DC Code Sec. 6-611.01) the Application was referred to the CFA, which found both design options acceptable and did not object to clearing the application.
- The Mayor’s Agent held that no referral to the HPRB is required when the subject property falls under CFA jurisdiction (as is the case here); but because of past practice the Mayor’s Agent also referred the matter to the HPRB for its recommendation.
- The standard of review where an applicant requests a hearing from the Mayor’s agent is a de novo review of the Application.
- The Mayor’s Agent need only consider the recommendations of the CFA and HPRB. It is not obliged to follow them or accord them great weight. Citing precedent, the Mayor’s Agent stated that an agency as “a finder of fact, may credit the evidence upon which it relies to the detriment of conflicting evidence, and [generally] need not explain why it favored the evidence of one side or the other.” Dorchester Associates LLC v. District of Columbia Bd. of Zoning Adjustment, 976 A.2d 200 (D.C. 2009)(internal quotation marks omitted) (pagination unavailable),quoting, Morrison v. District of Columbia Dep't of Employment Servs. 834 A.2d 890, 896 (D.C. 2003).
- [Ed. Note: however, in a subsequent case, 2225 California St. NW, HPA No. 11-472, (2013), the Mayor’s Agent clarified that while “deference” may not have to be given to HPRB recommendations, the Mayor’s Agent should respect the greater expertise and experience of the HPRB, especially where such decisions of consistency with the Act turn on questions of degree and design.
The relevant excerpt from the Mayor’s Agent decision in 2225 California St. NW is below:
The letter seeks to reargue whether the proposed project will have too great an adverse effect on the façade and roof of the garage. It also seeks to argue that construction should not be permitted on the garden because eliminating open space would necessarily be inconsistent with the character of the district. These are all questions of judgment and degree. Our Act depends primarily on the expertise and care of the HPRB and staff to make such judgments to safeguard the cultural inheritance of the people of the District of Columbia. You correctly note that the Act characterizes the decisions of the HPRB as recommendations to the Mayor, and that the Mayor’s Agent held in In the Matter of Heritage Foundation, Application for Permit for Alteration, 225 Pennsylvania Ave., SE, HPA No. 08-437 (2009)…that the Mayor’s Agent does not accord the HPRB’s decisions any formal deference, such as a court affords the decisions of the Mayor in historic preservation cases or the decisions of responsible administrative agency in other cases. Nor does the Mayor’s Agent afford HPRB decisions “great weight,” as it must afford the recommendations of an Advisory Neighborhood Commission. Nonetheless, the members of the HPRB are chosen for their expertise and interest in historic preservation and are confirmed by the District of Columbia Council. The Mayor’s Agent by contrast is a neutral figure with no necessary expertise in historic preservation who applies the law to protect the individual and public rights the Act recognizes. The Mayor’s Agent also considers owner arguments about economic hardship and special merit upon which the HPRB provides no recommendation. The leading study of the drafting of the Act suggests that final approval of permits was given to the Mayor’s Agent rather than to the HPRB because the development community was concerned that the HPRB, as the body that solely designates historic properties, would be too protective of such designated properties. See Jeremy W. Dutra, “You Can’t Tear It Down: The Historical Origins of the D.C. Historic Preservation Act”, 26-27 (2002), at http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1000&context=hpps_papers. The Mayor’s Agent should respect the greater expertise and experience of the HPRB in determining whether an alteration is consistent with the purposes of the Act, especially when such decisions turn on questions of degree and design.” 2225 California St. NW, HPA No. 11-472, (2013).
See the introductory text to the “Mayor’s Agent – Procedural” subject area for a further analysis of this distinction.]
- Great weight is not given to anyone’s views other than those of the affected ANC. The Mayor’s Agent is required by statute to do so (D.C. Official Code Sec. 1-309.10(d)).
- CHRS argued that consistent with the purposes of “retaining . . . properties” meant retaining air space above the property’s roof. CHRS claimed that Applicant was required to show that there were no other purchasers who would be willing to adapt the Building for its current use without a visible third floor addition. The Mayor’s Agent ruled that no such requirements exist for an alteration.
Necessary in the Public Interest:
Applicant claimed the proposed alteration was necessary in the public interest because it is consistent with the purposes of the Act, specifically (1) retaining and enhancing those properties which contribute to the character of the historic district and encouraging their adaptation for current use; and (2) assuring that alterations of existing structures are compatible with the character of the historic district.
Consistent with the Purposes of the Act:
Applicant claimed the proposed alteration was necessary in the public interest because it is consistent with the purposes of the Act, specifically (1) retaining and enhancing those properties which contribute to the true character of the historic district and encouraging their adaptation for current use; and (2) assuring that alterations of existing structures are compatible with the character of the historic district.
The Mayor’s Agent found that “consistent” with the purposes of the Act does not mean “necessary” to achieve the purposes of the Act. Rather, under controlling precedent established by the DC Court of Appeals in Gondelman v. District of Columbia Dept. of Consumer & Regulatory Affairs, 789 A.2d 1238, 1245 (D.C. 2002), “consistent” with the purposes of the Act means that the Applicant must establish that the proposed alterations retain and enhance historic properties in a manner which contribute to the character of the historic district and which encourage the adaptation of historic properties for current use. The Mayor’s Agent was not persuaded by CHRS’s arguments to the contrary.
One of the Building’s most distinguishing features is a wide band of decorative brick and terra cotta that fills the area between the second floor windows and the top of the façade. The Building’s façade has been painted blue, the existing storefront is not historically appropriate, and inappropriate shutters have been added. Under the Application and the proposals previously authorized, the existing paint will be removed to expose the original red brick façade, and the façade will be re-pointed. The deteriorating masonry and terra cotta will be restored. New wood windows will be installed on the second floor. The non-original storefront will be replaced with a new, compatible storefront that is designed based on historic documentation.
The Contemporary Design Option for the third floor will contrast with the historic façade, but still is compatible with the scale and design of the existing building. This approach is consistent with the philosophy that additions to historic buildings should be visibly different and distinct from the original building.
Historic District - Contributing Building:
Two non-contributing additions at the back of the Building extend the Building almost to the rear lot line. The non-contributing additions will be removed and replaced with a new addition. Although the Building contributes to the Capitol Hill Historic District, in its current condition it does not contribute as much as it could. Its historic appearance has been altered and its contribution to the streetscape and the pedestrian experience is therefore somewhat compromised.
The Mayor’s Agent stated that an alteration found compatible at one location could be wholly incompatible if constructed elsewhere, including on the same block since these determinations are dependent upon what are often unique sets of circumstances.
The Mayor’s Agent found that vertical additions are allowed under the Act for the simple fact that they are not prohibited.