HPA No. 90-531 (In re. Moses House)
- HPA Number: 90-531
- Name: In the matter of: 2129 Wyoming Avenue, N.W.
- Location: 2129 Wyoming Avenue N.W., Square 2527, Lots 46 & 48
- Date of Order: 5/19/1992
- Type: Demolition
- Disposition: Denied
- Date of Case Summary: July 25, 2006
Kalorama Heights Limited Partnership (the "Applicant") sought a permit to totally demolish the existing structures on its site at 2129 Wyoming Avenue, N.W., known as the Moses House, which was built in 1892, consisted of a main house and a detached carriage house, and had served as the French Embassy. Applicant wanted to replace the Moses House with a six-story 12-unit luxury condominium building with underground parking. The demolition permit was sought several months before the building's area (Sheridan-Kalorama) was designated an historic district, though the application for historic status had been submitted several months prior to the permit request.
Appealing the denial of the permit, Applicant argued that the proposed demolition was necessary in the public interest to construct a project of special merit, that the proposed demolition and subsequent development would be consistent with the purposes of the Act, and that failure to issue the demolition permit would result in unreasonable economic hardship.
Concluding that Applicant failed to demonstrate that the total demolition of a contributing structure in an Historic District is consistent with the Act, that the project was not of "special merit," and that Applicant had not demonstrated unreasonable economic hardship, the Mayor's Agent denied issuance of the demolition permit.
Mayor's Agent - Procedural:
"The burden of proof in this proceeding is upon the applicant to demonstrate that issuance of a permit to demolish the Moses House is 'necessary in the public interest' or that failure to issue a permit would result in 'unreasonable economic hardship' to the applicant."
Necessary in the Public Interest:
Applicant argued that the demolition was necessary both due to the alleged "special merit" of the condominium construction and because the "proposed demolition and subsequent development would be consistent" with the Act. The Mayor's Agent quoted §3(j) of the Historic Landmark and Historic District Preservation Act of 1978 to define "necessary in the public interest" as "consistent with the purposes of this act . . . or necessary to allow the construction of a project with special merit.". D.C. Code §5-1002(10).
Consistent with the Purposes of the Act:
- The Mayor's Agent cited §5-1001(b) of the D.C. Code for the standard of determining whether the demolition would be consistent with the purposes of the Act. The purposes of the act are:
- "To retain and enhance those properties which contribute to the character of the Historic District and to encourage their adaptation for future use"
- "To assure that alterations of existing structures are compatible with the character of the Historic District"
- "To assure that new construction and subdivisions of lots in an Historic District are compatible with the character of the Historic District."
- The Mayor's Agent found that the history or cultural value of the Moses House made it an artifact of the historical period for which the Sheridan-Kalorama area was designated an Historic District and that, based on its history and features, the Moses House is a contributing structure to the Historic District. The Mayor's Agent concluded that the Applicant "failed to show how the total demolition of a contributing structure in an Historic District is consistent with the Act."
Project of Special Merit - Specific Features of Land Planning, Social or Other Benefits Having a High Priority for Community Services:
- The Mayor's Agent referred to §3(k) of the Act defining "special merit" as "a plan or building having significant benefits to the District of Columbia or to the community by virtue of exemplary architecture, specific features of land planning, or social or other benefits having a high priority for community services."
- Applicant claimed that its proposed condominium project would be of special merit because "(a) it would prevent the Moses House from being used as a chancery; (b) it would add new housing stock, and (c) it would generate additional tax revenues for the District of Columbia."
- The Mayor's Agent rejected the argument that the condominium project was one of special merit.
- First, though the Ward One Plan Amendments (D.C. Comprehensive Plan Amendments) discouraged embassies from locating in residential neighborhoods and encouraged home-ownership, the Mayor's Agent found no evidence that the only options for the Moses House were a chancery or a six-story condominium. Even if these were the only options, the Plan Amendments "only [sought] to discourage [chanceries]" while the current zoning laws would "clearly prohibit" a condominium building of the size proposed. The Mayor's Agent additionally noted that some local neighbors generally preferred a chancery to a condominium building.
- Second, although Applicant claimed that the area was in need of luxury housing, the Mayor's Agent noted that "[t]here may be other alternatives maintaining at least the facade… which would also provide living quarters for more than one family…." It also stated that if this argument were accepted, "then by definition any new residential highrise with more units than the historic building it replaced would be meritorious, and the Act would be meaningless."
- Finally, the Mayor's Agent discounted the increased tax revenue merit on the basis that it was speculative: "[w]hile increased revenues may be used for special merit projects, and may be of special merit, it is not in and of itself a "special merit" within the meaning of [the Act]."
Project of Special Merit - Exemplary Architecture:
Applicant's architect claimed "that his proposed condominium project would constitute exemplary architecture generally in keeping with the character of the Historic District." The Mayor's Agent, however, noted that others familiar with the project (the Historic Preservation Review Board, the Historic Preservation Division staff, the D.C. Preservation League, the Sheridan-Kalorama Historical Association, the Cleveland Park Historical Society, and many neighbors) disagreed. In addition, the Mayor's Agent noted that Applicant's proposed Findings of Fact and Conclusions of Law did not include a finding of Exemplary Architecture.
The Mayor's Agent concluded that the "evidence does not support a finding that the proposed condominium project would constitute exemplary architecture." There was no discussion of the specific architecture that would be constructed as a result of Applicant's condominium project.
Unreasonable Economic Hardship:
Applicant argued that it had been deprived of a reasonable return on its investment in its purchase of the Moses House. It claimed that it would be unprofitable to renovate the property as a single-family home and that the only profitable use is the proposed condominium project.
The Mayor's Agent cited Section 3(n) of the Act for the relevant standard for "unreasonable economic hardship": "that failure to issue a permit would amount to a taking of the owner's property without just compensation…." The Mayor's Agent also pointed to case law to clarify the meaning of unreasonable economic hardship, citing 900 G Street v. Department of Housing and Community Development, 430 A.2d 1387 (D.C. App. 1981), in explaining that "if a reasonable economic use exists, there is no unreasonable economic hardship from the denial of the demolition permit, no matter how diminished the property may become in value and even if a more beneficial use of the property has been found."
The Mayor's Agent concluded that while Applicant may have some hardship, it had not demonstrated an unreasonable or unjust taking, and any financial harm that would be suffered from denial of a demolition permit would be de minimus. Specifically, the Mayor's Agent found that Applicant had not shown it was unable to sell the property in its current condition at a fair price; in fact, it had received unsolicited offers for the property and only speculates that it would not be able to recoup its full investment. The Mayor's Agent also noted that the project was a speculative real estate investment and, as such, a "gamble," which Applicant took, fully aware of the risk that it might not get the necessary zoning variances to construct the condominium building.
In response to Applicant's alleged distinction that the land was not in an historic district at the time of acquisition and that he had no knowledge of the impending designation, the Mayor's Agent noted that once an area is designated, all owners must comply with the Act. Although the Act does provide for the exception of "unreasonable economic hardship," it does not provide an exception to the standard for "unreasonable economic hardship."
Acknowledging that the Moses House was an important "artifact," the Mayor's Agent concluded that Applicant "failed to show how the total demolition of a contributing structure in an Historic District is consistent with the Act."
The Mayor's Agent found that the history or cultural value of the Moses House, including the alterations made in the 1920s, made it an artifact of the historical period for which the Sheridan-Kalorama area was designated an Historic District and that, based on its history and features, the Moses House is a contributing structure to the Historic District. He went on to state that "the reality that tastes change and an artifact may no longer be in vogue is not a basis for changing the historic status of an artifact." The Mayor's Agent concluded that the Applicant "failed to show how the total demolition of a contributing structure in an Historic District is consistent with the Act."
Consideration of Other Alternatives & Facade:
The Mayor's Agent noted that "[t]here may be other alternatives maintaining at least the facade… which would also provide living quarters for more than one family…." The Mayor's Agent also noted that Applicant had apparently considered alternative adaptive use, but submitted to the Mayor's Agent only the cost of restoring the Moses House and no other calculations concerning the costs to complete other alternatives.
See Kalorama Heights Ltd. Partnetship v. District of Columbia Dep't. of Consumer & Regulatory Affairs , 655 A.2d 865 (D.C. 1995) for subsequent history.
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