HPA No. 1987-782 (In re. J. Coleman Bean residence)

• HPA Number: 1987-782
• Case Name: In Re 1215 30th Street, N.W.
• Location of Property: 1215 30th Street, N.W., Square 1210, Lot 195
• Date of Decision: 3/14/1989
• Type of Permit Sought: Alteration & New Construction (floor addition)
• Disposition: Denied

Summary of Decision:

J. Coleman Bean (the "Applicant") sought a construction permit for an addition of a third floor along the entire length of a private dwelling located in the Old Georgetown Historic District, which, though not individually landmarked, "contributes to the district by providing a good example of a typical turn-of-the-century row house form," according to a staff member of the Historic Preservation Review Board (the "HPRB"). The residence in question is part of a row of approximately six contiguous two-story houses with uniform facades and a uniform cornice line. Applicant claimed that the addition was consistent with the purposes of the Act, and that failure to issue a permit would result in unreasonable economic hardship. The Mayor's Agent denied the application, concluding that the floor addition would clearly change the appearance and scale of the entire terrace of contiguous houses of which the subject property was an integral part. The Mayor's Agent concluded that the third story addition would "create an anomalous and disturbing element at this site." The Mayor's Agent also concluded that denial of the application was not an unreasonable economic hardship because the Applicant failed to meet the test put forth in Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975).

Mayor's Agent - Procedural:

The Mayor's Agent stated that an identical floor addition permit granted in 1980 for the subject property that subsequently expired (the Applicant postponed the third floor addition after permission was granted due to financial constraints) was irrelevant in the current case before the Mayor's Agent. Among other issues, in the time that had elapsed, the Commission of Fine Arts (the "CFA") had issued a new policy on house additions and the facts suggested "more recent and more stringent historic preservation law and regulations." The current rules and context are properly applied to the current permit application irrespective of the fact that the CFA previously granted approval of a now-expired permit.

Consistent with the Purposes of the Act:

The Mayor's Agent concluded that the floor addition was inconsistent with the purposes of the Act because the addition would "irreparably mar the profile of the terrace of houses." The residence (zoned wholly residential, while some adjacent properties are zoned half commercial and half residential) is located in an area serving as a transitional neighborhood from commercial to residential. The Mayor's agent found that the mixed-use nature of the subject property's neighborhood "in no way bolsters the Applicant's apparent argument that the increased commercialization of Georgetown somehow lessens the need for stringent enforcement of historic preservation laws in his area." Rather, mixed-use structures in Georgetown possess historic significance, and this specific terrace of row houses serves the valuable function of transitioning from commercial to residential.

Unreasonable Economic Hardship:

The Mayor's Agent stated that unreasonable economic hardship occurs where an owner can show that, unless he is permitted to take the requested action, his property will be subject to a taking. Specifically, as articulated in Maher: (i) he cannot continue to use the property; (ii) he cannot sell the property for an amount which would give him a reasonable return on his investment; (iii) he cannot sell the property for a price which would not be confiscatory based on his investment; (iv) the property is not suitable for adaptive reuse; and (v) his inability to use, rent, sell, or reuse the property is not the product of his own fault. The Mayor's Agent concluded that denial of the application was not an unreasonable economic hardship because the Applicant "failed to establish even one of the elements of the Maher test." Specifically, the evidence indicated that: (i) the Applicant has continued use of his property (currently using it as a primary residence); (ii) the Applicant can make a "very reasonable return" on his investment (he bought the property for $59,500, made $196,000 worth of improvements, and the property was currently appraised at $369,114); (iii) a private residence could easily be converted into retail or office use in this hybrid residential and business neighborhood; and (iv) a profitable rental market for the subject property exists (he rented the house for $21,600 per year).

Contributing Building:

Due to the fact that the subject property shares similarities in architecture and construction date with the other contiguous properties, the Major's Agent found the historic character of its contribution "undeniable," even though it was not an individually-designated landmark structure.

Notice of CFA Policy Changes:

The Applicant argued that failure of the CFA to publish its 1986 "Policy on Additions to Houses in Georgetown" in the Federal Register (as required by the Administrative Procedure Act) rendered the policy invalid. However, the Mayor's Agent stated that "the issue of publication of the CFA policy is one irrelevant to the proceeding before the Mayor's Agent," which is based not only on the recommendation of the CFA but also a review of all other relevant evidence. The Mayor's Agent stated that no claim of prejudice could be made since the "1986 policy statement is consistent with and adds little to the 1979 published policy statement," and, with respect to each policy, requires case-by-case reviews of applications.

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