HPA No. 95-281 (In re. Timmeny Residence)

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HPA No. 95-281 (In re. Timmeny Residence)

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  • HPA Number: 95-281
  • Case Name: In the Matter of Lot 809 - Square 820 312 4th Street, S.E.
  • Location of Property: 312 4th Street, S.E.
  • Date of Decision: 04/25/1996
  • Type of Case/Type of Permit Sought: Construction/alteration, including adding a curb cut
  • Disposition: Denied
  • Date of Case Summary: 06/05/2007

Summary of Decision:

Michael D. Timmeny (the "Applicant") applied for a construction alteration permit to construct a driveway onto his property that would include a curb cut. The Applicant's property, 312 4th Street, S.E., is located in and contributes to the Capitol Hill Historic District. After the Historic Preservation Review Board recommended that the application be denied, the Applicant requested a public hearing before the Mayor's Agent, who denied the application, determining that a curb cut would detract from the district's historic character, is not needed to retain or enhance the property, and is not compatible with the character of the historic district.

  • Note: On July 3, 1997, upon a request for reconsideration, the Mayor's Agent reversed this decision and granted the application as consistent with the purposes of the Act. See HPA 95-281 decision dated July 3, 1997.

Mayor's Agent - Procedural:

  • Though "[t]he Applicant collected approximately 60 signatures of residents in and around the Capitol Hill Historic District on petitions" that indicated their feelings that the curb cut is appropriate for and consistent with the purposes of the historic district, the Mayor's Agent stated that he is not required to pay any deference to such information, in that "[t]he Act does not provide for a popular referendum as a test for a finding of 'necessary in the public interest.'"
  • Similarly, the Mayor's Agent disregarded the fact that the Advisory Neighborhood Commission voted to endorse the curb cut; however, the Mayor's Agent did not indicate what level of deference that organization is due (i.e., "great weight").
  • "[P]rior to making a finding, the Mayor shall refer an application not subject to review by the Commission of Fine Arts to the Historic Preservation Review Board for a recommendation."

Necessary in the Public Interest:

The Mayor's Agent will not determine that curb cuts are "necessary in the public interest" simply because there are curb cuts on other blocks of the Capitol Hill Historic District. Similarly, a "desire to have designated private parking does not rise to the level of being necessary in the public interest."

Curb Cut:

According to testimony on behalf of the Applicant, "there is no 'outright policy' by the Historic Preservation Review Board regarding the appropriateness of curb cuts." The Mayor's Agent stated that he does not look to the existence of curb cuts in other blocks of the historic district as evidence in support of a finding of necessary in the public interest, but will look at the block in question, and noted that "[t]he integrity of the historic character and fabric of the streetscape, including intact curbs, has been maintained in the block containing the property."

Contributing Building:

The Applicant's property "is currently being used as residential property consistent and compatible with the character of the historic district." Thus, it apparently contributes to the historic character of the district.

Subsequent History:

Applicant subsequently requested reconsideration of this denial, and the project was ultimately granted approval. See HPA Number 95-281, order date July 3, 1997.

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  • HPA Number: 95-281
  • Case Name: In the Matter of Lot 809 - Square 820
  • Location of Property: 312 4th Street, S.E.
  • Date of Decision: July 3, 1997
  • Type of Permit Sought: Construction Alteration Permit (including a curb cut, driveway over public space and construction of wall, fence and gate) and Public Space Permit
  • Disposition: Granted

Summary of Decision:

Michael D. Timmeny (the "Applicant") requested reconsideration by the Mayor's Agent of her previous denial of Applicant's application for a construction alteration permit and public space permit (_see_ HPA 95-281 decision dated 25-Apr-96), arguing among other factors that the Mayor's Agent had not given "great weight" to the views of the Advisory Neighborhood Commission (the "ANC"). Applicant sought the permits in order to build a driveway onto his property, which would result in a curb cut and driveway over the public space and require the construction of a wall, fence and gate. In her Reconsideration Decision and Order, the Mayor's Agent granted Applicant's application for the permits concluding that the proposed alteration was consistent with the purposes of the Act and was, therefore, considered necessary in the public interest as required by D.C. Code Ann. §5-1005(f) (D.C. Law 2-144, the Historic Landmark and Historic Protection Act of 1978 [the "Act"]).

Mayor's Agent - Procedural:

Applicant filed a motion for reconsideration of a prior Mayor's Agent decision in which the Mayor's Agent denied the application, concurring with the recommendation of the Historic Preservation Review Board (the "Review Board") that the proposed project was not consistent with the purposes of the Act. The motion claimed that the Mayor's Agent failed to give great weight to the views of the ANC, which, based on its consideration of the impact of the proposed alteration on the ANC's community, voted to "endorse the application" and found no impact on the community of the proposed alteration. The Mayor's Agent made a finding of fact that the prior decision "failed to give great weight to the position of the [ANC] or to address the reasons for differing form that position; and failed to consider expert testimony presented at the hearing."

Consistent with the Purposes of the Act:

The Mayor's Agent concluded as a matter of law that "necessary in the public interest" means consistent with the purposes of the Act, which are, "with respect to properties in historic districts, to retain and enhance those properties, which contribute to the character of the historic district and to encourage their adaptation for current use; [and] to assure that alterations of existing structures are compatible with the character of the historic district... ." See D.C. Code Ann. §5-1002(10) and §5-1001(b). The Mayor's Agent found that the alteration of the exterior and site of Applicant's property in the historic district (Capitol Hill Historic District) was consistent with the purposes of the Act because it would retain and enhance the property which contributes to the character of the historic district in its restored state. The Mayor's Agent made a finding of fact that the Applicant's property had enough space to construct the driveway, gate and fencing to allow a parked vehicle to be parked out of sight beyond the greenspace, public sidewalk and beyond the front plane of the house. By placement of a parking area beyond the plane of the front wall of the house and completely off the public space, the alteration would provide for the adaptation of the property's unique characteristics. In addition, the Mayor's Agent cited the ANC's "wholehearted" endorsement of the application as an additional element of Applicant's satisfaction of its burden of showing that the proposed alteration was consistent with the purposes of the Act.

Necessary in the Public Interest:

The Mayor's Agent made a finding of fact that the Applicant collected 60 signatures of residents in and around the Capitol Hill Historic District on petitions that read that they were informed of Applicant's proposed application and supported his application, but the Mayor's Agent quickly made another finding of fact that the "Act does not provide for a popular referendum as a test for a finding of 'necessary in the public interest'."

Curb Cut:

The Mayor's Agent made a finding of fact that there is no "outright policy" by the Historic Preservation Review Board regarding curb cuts (_e.g._, whether they are consistent with the purposes of the Act or otherwise), and that an analysis of decisions recommending approval or disapproval of curb cuts reflect no common policy for the Capitol Hill Historic District or other historic districts.

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Title: HPA No. 95-281 (In re. Timmeny Residence)
Author: Government of the District of Columbia. Department of Consumer and Regulatory Affairs
Abstract: Decision and order concerning application for construction/alteration permit to construct a driveway with curb cut and fence at 312 4th Street, S.E.
Permanent Link: http://hdl.handle.net/10822/761244
Date Created: 1996
Subject: Alteration (Including Addition); Mayor's Agent: D.C. Administrative Procedure Act; Necessary in the Public Interest; Curb Cuts; Historic District (Contributing Building); Consistent with Purposes of the Act


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