HPA No. 1987-758 (In re. the Turkish Chancery)

• HPA Number: 1987-758
• Case Name: In re Turkish Chancery
• Location of Property: 2523 Massachusetts Avenue, N.W., Square 2505, Lots 15, 16, 17
• Date of Decision: 9/6/1988
• Type of Case/Type of Permit Sought: Demolition
• Disposition: Denied
• Date of Case Summary: 11/26/2014
• Issue Area(s): Mayor's Agent-Procedural, Consistent with the Purposes of the Act, Project of Special Merit – Balancing Test, Project of Special Merit – Exemplary Architecture, Project of Special Merit – Specific Features of Land Planning, Economic Feasibility, Compatibility, Contributing Building

Summary of Decision:

The Republic of Turkey (the "Applicant") filed an application with the Department of Consumer and Regulatory Affairs for a permit to demolish the Turkish Chancery, located at 2523 Massachusetts Avenue, N.W., in the Massachusetts Avenue Historic District. The Applicant also filed an application for conceptual design review. Both applications were referred to the Historic Preservation Review Board (the "Review Board"). The Review Board recommended denial of the demolition permit but found that the conceptual design of the proposed new construction was consistent with the Historic District Preservation Act of 1978 (the "Act").

The Applicant requested a Mayor's Agent hearing on the pending demolition permit, but then withdrew the request upon filing an application for a demolition permit with the Board of Zoning Adjustment ("BZA"). A public hearing was held by the Foreign Missions Board of Zoning Adjustment (the "FMBZA") to consider the application. The FMBZA referred the issue of demolition of the Turkish Chancery to the Mayor's Agent for the purpose of receiving a written report from the Mayor's Agent vis-à-vis the requirements of the Act.

Because the D.C. Rules of Procedure and D.C. Law 2-144 require that the Mayor's Agent conduct a contested case hearing, the Mayor's Agent held a public hearing to consider the Applicant's claims that the proposed demolition was consistent with the purposes of the Act and necessary to construct a project of special merit. The Applicant claimed the project was of special merit based on its exemplary architecture and specific features of land planning. The Concerned Citizens for Kalorama, Inc. ("Opposition") entered their appearance as a party to the proceeding and opposed the application.

The Mayor's Agent concluded that the proposed demolition was neither consistent with the purposes of the Act nor necessary to construct a project of special merit. Demolition was not consistent with the purposes of the Act because the existing structure was a contributing building in the District. Indeed, the building was the only structure by architect John J. Whelan protected by the historic preservation laws. The contributing building was "found to bind the streetscape into the street ensemble for which this historic district was noted."

The Mayor's Agent found that the proposed project was not a project of special merit because it did not rise to the level of exemplary architecture and did not benefit the community through specific features of land planning. According to the Mayor's Agent, use of the building as a chancery or minimization of the impact on the surrounding neighborhood does not in and of itself amount to a benefit to the community. Furthermore, "the proposed structure while compatible with the historic district does not rise to the level of exemplary architecture." Indeed, the architectural historian who testified on behalf of the Applicant declined to put the proposed structure within the same class of structures considered to be exemplary. The Mayor's Agent denied the Applicant's application for a demolition permit finding that the demolition was not necessary in the public interest.

Mayor's Agent-Procedural:

The Mayor's Agent considered the following threshold jurisdictional issues:

• The Applicant argued that the Foreign Missions Act (the "FMA") provides the exclusive procedure for review of chancery locations (including those involving historic preservation issues) and that, therefore, the Mayor's Agent lacked jurisdiction to conduct a proceeding in connection with the pending BZA application. The Mayor's Agent acknowledged that, based on the plain language of the FMA, the FMBZA did seem to have exclusive jurisdiction over the case. However, the Mayor's Agent ultimately agreed with the "plausible argument" advanced by the Opposition that the FMA was meant to apply only to the D.C. zoning process. Under this reasoning, the FMBZA would have no authority over an application for a demolition or construction permit which, as in this case, did not involve zoning-related concerns such as the need for variances or special exceptions. The Mayor's Agent found the Opposition's argument "sufficiently plausible to suggest a degree of ambiguity as to Congress' intent." Accordingly, the Mayor's Agent assumed for the purposes of this hearing that the FMA does not preclude a Mayor's Agent hearing.

• Applicant argued that there was no pending application before the Mayor's Agent because the Applicant withdrew its application for demolition. The Mayor's Agent disagreed. The FMBZA requested a written report from the Mayor's Agent on the application. Therefore, the FMBZA consented to the referral of the application to the Mayor's Agent for the required hearing, resulting in the only written report – the Mayor's Agent's decision – provided for by the Act and its implementing rules.

• The Applicant argued that the Mayor's Agent proceeding must be conducted as a rulemaking proceeding rather than as a quasi-judicial proceeding or contested case. The Mayor's Agent disagreed, holding that the D.C. Rules of Procedure dictate that Mayor's Agent hearings be conducted in accordance with the D.C. Administrative Procedures Act and require the participation of affected persons as parties and the examination and cross-examination of witnesses under oath or affirmation.

• The Applicant objected to the introduction of memoranda from the Office of Planning and Development (the "OP") on the grounds that it had been prejudiced by the inability to cross-examine the OP on the substance of the OP's recommendation. In the memoranda to which the Applicant objected, the Director of the OP 1) recommended denial of the demolition request before the FMBZA because the Applicant had not complied with local laws and procedures relating to historic preservation, and 2) concluded that the application did not meet the test for "special merit" designation because the project (a) required the demolition of a contributing building in a linear historic district and proposed replacement of such building with a larger structure which would impact negatively the continuity of the district, and (b) raised questions as to whether exemplary architecture had been achieved. The Mayor's Agent found that under the Rules of Procedure §3.1(a), the Mayor shall refer all applications for which the owner intends to demonstrate ‘special' merit to the OP. The Mayor's Agent stated that memoranda from the OP were not only accepted into evidence, but given "considerable weight." The Mayor's Agent found that "[a] recommendation or report from OP should be viewed no differently than one from the Review Board or the Commission of Fine Arts."

Consistent with the Purposes of the Act:

The Applicant claimed that the proposal was consistent with the purposes of the Act because the Review Board approved the conceptual design of the project and the Review Board staff report included a statement that "the demolition could be recommended if the Review Board approves the conceptual design of the replacement building." The Review Board reviewed the conceptual design application even though it recommended a denial of the permit for demolition, noting that "the Mayor's Agent requires that the Board render a recommendation on the conceptual design even when the Board opposes demolition." With regard to the conceptual design of the proposed construction, the Review Board adopted the staff recommendation that the proposed structure was consistent with the purposes of the Act in terms of the U-shaped massing with a landscaped courtyard, the façade treatment of brick with stone trim and punched windows, and the cornice height aligning with the adjacent house to the west. The Mayor's Agent found that the action of making simultaneous recommendations regarding a demolition permit and a proposal for new construction is the result of a balancing process, and the Review Board's recommendation to deny the demolition permit was "unequivocal." The Mayor's Agent concluded that demolition of the Turkish Chancery was not consistent with the purposes of the Act.

Project of Special Merit – Balancing Test:

Cases of special merit require a balancing by the Mayor's Agent of the architectural, historical, and cultural merits of the existing structure against the benefits of the proposed structure. The Review Board is mindful of the balancing required by the Mayor's Agent and, accordingly, considers both the demolition application and the conceptual design application before transmitting a recommendation to the Mayor's Agent.

Project of Special Merit – Exemplary Architecture:

The Turkish Chancery, designated in 1973 as a Category II Landmark of importance and submitted for consideration to the National Register, was a freestanding four story, three bay brick house designed in 1929 by John Whelan. Crediting the testimony of Emily Eig, an architectural historian, the Mayor's Agent determined that the simplicity of composition and detailing of the façade of the chancery was representative of the stylistic trend in the late 1920s and 1930s toward a flatter, more restrained trend, which holds strong ties to the historical development of the Massachusetts Avenue historic district.

The Applicant's expert witness testified that the proposed new building would be a significant improvement to the district. However, she stated that she did not believe that the proposed building amounted to "exemplary architecture." She testified that the proposal for the Turkish Chancery was modeled after the design of the Japanese Chancery, which she later testified was "an intrusion in the historic district." The Mayor's Agent emphasized that "designation as a project of special merit is clearly reserved for projects that are exemplary," and the testimony of the experts on both sides, as well as the testimony of the architect for the proposed project, supported the "mere compatibility" of the project with the surrounding area, rather than the notion of the project as exemplary architecture.

Project of Special Merit – Specific Features of Land Planning:

The Applicant introduced evidence of the project's specific features of land planning including, but not limited to, the project 1) enabling the chancery to continue its longstanding use of the site, 2) freeing on-street parking spaces as a result of the construction of a below-ground garage, 3) improving the security of the site, and 4) incorporating a landscape plan that involved the planting of trees many of which would act as a screen to neighboring properties. The Mayor's Agent found that the features discussed, "i.e., improvement in security, landscaping plans, protection of specimen trees, are merely methods proposed to diminish the adverse impact of the massive structure on the residential character of the surrounding neighborhoods." According to the Mayor's Agent, use of the property as a chancery or minimization of the negative impact on the community cannot itself be deemed as land planning to benefit the community.

Project of Special Merit – Social or other Benefits having a High Priority for Community Services:

The Applicant described several "specific features of land planning which are claimed to have a high priority for community service necessary to elevate this project to one of special merit." The Mayor's Agent concluded that the project was not a project of special merit and did not confer benefits on the community, finding that "[t]he consolidation of chancery functions confers no special benefits on the community." The Mayor's Agent determined that the benefits are "even less apparent where the massing of the structure adversely impacts upon the residential character of the historic district."

Economic Feasibility:

The Applicant presented evidence that it had considered alternative proposals for the project, in which the existing structure could be incorporated. However these proposals were problematic because the retention of the existing building would require installation of entirely new building systems including mechanical, electrical and plumbing systems resulting in a thirty percent increase in cost. Furthermore, the existing building was not in compliance with then current zoning regulations.

Compatibility:

The architect for the proposed project testified that the proposed new construction would be more compatible with the surrounding neighborhood than the original Turkish Chancery. However, the Mayor's Agent found that "mere compatibility" was not enough to raise the project to the level of exemplary architecture and, therefore, a project of special merit.

Contributing Building:

The Mayor's Agent found that the existing building contributes to the Massachusetts Avenue Historic District. The Mayor's Agent stated that the chancery "is a contributing structure which serves as one of similar structures which bind together the streetscape into the street ensemble for which this historic district was noted." The Mayor's Agent also noted that the existing structure was the only building designed by notable architect John J. Whelan that was protected by the preservation laws.

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