HPA No. 1991-145 (In re. Jemal and Millstein Buildings)
- HPA: 1991-145
- Location: 2000 S Street NW, Square 91, Lot 35
- Date of Order: 4/29/1992
- Type: Alteration & Construction
- Disposition: Denied
- Date of Case Summary: July 25, 2006
Douglas Jemal and Paul Andrew Millstein (collectively, the " Applicants ") retroactively sought a construction permit to build an exterior staircase down to the basement unit of the property, a commercially-zoned group of row houses located in an historic district (the specific district was not named). The staircase would better accommodate the basement space for a retail tenant. Concluding that there was no evidence that Applicants' design (double stairways leading to a basement terrace) was part of the historic character of the area, the Mayor's Agent denied an alteration permit on the grounds that Applicants had not satisfied the burden of proof for consistency with the Act. The Mayor's Agent also ordered that Applicants remove the stairway and the wall that had been constructed along the sidewalk (without permits), and that such stairway area be restored and landscaped to comply with the plan which originally had been approved.
Mayor's Agent - Procedural:
"The Act requires the applicant to bear the burden of showing that the permit requested is consistent with the Act and set[s] forth three criteria for showing such consistency."
Consistent with the Purposes of the Act:
Applicants claimed that the proposed alteration was consistent with the purposes of the Historic Landmark and Historic District Protection Act of 1978. The Mayor's Agent cited D.C. Law 2-144 §2(b), D.C. Code §5(b)(1) for the appropriate standard. The Applicants must show that the work covered by the permit application is needed "[t]o retain and enhance properties which contribute to the character of the historic district and to encourage their adaptation for current use;" "[t]o assure that alterations of existing structures are compatible with the character of the historic district; and" "[t]o assure that new construction and subdivisions of lots in an historic district are compatible with the character of the historic district." Applicants submitted photographs of other buildings with basement terraces and double stairways, but the Mayor's Agent found no evidence that these designs were part of the historic character and concluded that they were all recent additions. Additionally, though the Applicants argued that their transgressions were minor in comparison with other more significant errors in historic districts, the Mayor's Agent stated that, "the logic that there are greater transgressors cannot be the basis for determining that [the] Applicants' proposed permit is consistent with the Act." He then concluded that the burden of showing that the permit requested is consistent with the Act was not met.
Economic Feasibility & Unreasonable Economic Hardship:
Applicants argued that the Mayor's Agent should "look at projects on a case-by-case basis and temper [his] response to design issues to make them a realistic response to economic issues." Applicant essentially asserted that the Mayor's Agent should give them the benefit of the doubt since they risked large sums of money and had generally exhibited sensitivity towards preserving the integrity of historical buildings. Although the Mayor's Agent could "sympathize with Applicants' present economic plight," Applicants had not timely raised "economic hardship" as a basis for granting their permit, and thus it "[could not] be the basis for considering [Applicant's] 'economic issues...'"
*Consideration of Compromise:Applicant also asked that the Mayor's Agent strike a compromise, and suggested that they could create a bed in the bottom of the terrace area which would be more open to natural earth, allowing for the growth of more plant material. The Mayor's Agent concluded that although compromises are often made in historic districts and "are often lauded when made," "a vague compromise at the eleventh hour is not one of the basis [sic] for finding an application consistent with the Act."
Applicants submitted several pictures of other buildings in historic areas with similar basement terraces and double stairways. The Mayor's Agent, however, concluded that there was no evidence that such design was part of the historic character of the neighborhood and all appeared to be recent renovations.
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