HPA No. 2001-023, 2001-515 (In re. Purcell Residence)

HPA Number: 2001-023, 2001-515
Case Name: In the Matter of: Will and Gennet Purcell, Applicants (Windows in Greater U Street Historic District)
Location of Property: 1817 10th Street, N.W.
Date of Decision: 3/12/2004
Type of Permit Sought: Windows Alteration
Disposition: Denied
Date of Case Summary: 7/26/2006

Summary of Decision:

Will and Gennet Purcell (Applicants) sought a windows alteration permit to approve the already completed installation of 48 vinyl-type replacement windows on their home in the Greater U Street Historic District. Applicants had not secured proper permits prior to installation, claiming a lack of knowledge and belief that the contractor performing the installation received the proper permits. Applicants claimed denial of their application and an order to replace the windows would impose an unreasonable economic hardship and would constitute an unlawful taking. The Mayor's Agent denied the application, concluding that while Applicants were currently in a difficult financial situation, it was temporary. Further, the Mayor's Agent rejected the claim that denial was an unlawful taking, as the property would still retain economically viable uses. The Mayor's Agent ordered the Applicants to remove and replace the vinyl windows with those in compliance with the current versions of Windows and Doors For Historic Buildings (the Guidelines) and the Standards for the Repair and Replacement of Windows in Historic Landmarks and Historic Districts (the Standards) governing window replacements within historic districts in the District.

Mayor's Agent - Procedural:

The Mayor's Agent concluded as a matter of law that the Applicants bear the burden of proof to show that the alterations are consistent with the purposes of the Act by a preponderance of the evidence.

The Mayor's Agent vacated a prior default order against the Applicants for their failure to appear at a rescheduled hearing (acceding to Applicants' contention that they never received notice).

The Mayor's Agent stated that formal votes of the applicable Advisory Neighborhood Commission were entitled to "great weight" (the applicable ANC voted against Applicants and in favor of the prior default order, which ordered Applicants to replace the vinyl windows with wood windows).

Consistent with the Purposes of the Act:

The Mayor's Agent concluded that the Applicants had not met their burden to show that the vinyl windows on their home were consistent with the purposes of the Act because they did not comply with the established Guidelines and Standards.

Unreasonable Economic Hardship:

The Mayor's Agent repeated the definition of "unreasonable economic hardship" found in applicable District regulations, i.e., that it is found when denial of an application would either constitute a taking of one's property without just compensation or, for a low income owner, when it would place an onerous and excessive financial burden upon the Applicant. The Mayor's Agent concluded denial of the application was not an unreasonable economic hardship.

Onerous and Excessive Financial Burden:

The Applicants contended that denying their application, along with requiring removal and replacement of the already installed vinyl windows, would impose an unreasonable economic hardship. The Applicants testified that they had already spent approximately $200,000 on renovations to the house, including the window replacements, and that they were experiencing economic hardship because Gennet Purcell had lost her position as an attorney (and was still unemployed a year later) and Will Purcell made very little from his private practice. The Mayor's Agent acknowledged that the Applicants had "credibly established that they are experiencing a very difficult financial situation at this time," but asserted they had not provided further substantiating evidence in order to support a finding of unreasonable economic hardship. The Mayor's Agent noted that the financial difficulties the Applicants were experiencing were "only temporary," and that the extra financial burden of replacing the windows was self-created because they had not obtained the proper construction permits.

Taking:

Applicants claimed that denial would constitute a taking of their property. The question of whether a denial of an alteration permit for a residential property that was also owner-occupied constituted an issue of first impression for the Mayor's Agent.

The Mayor's Agent stated that in a takings case, the test for unreasonable economic hardship was "whether the Applicant can establish that there are no reasonable economic uses for the building as it exists, and that if such uses do still exist, there is no... hardship flowing from the denial... no matter how diminished the property may become in value." See 900 G Street Associates v. Department of Housing and Community Development, 430 A.2d 1387, 1390 (D.C. 1981). For a regulatory takings case, other factors include the following: 1) the character of the government action; 2) the extent to which the regulation interferes with distinct, investment-backed expectations; and 3) the economic impact of the regulations. See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).

The Mayor's Agent observed that the "government's regulatory restraint in the creation of the historic district [was] well established as legitimate." The Mayor's Agent concluded based on the above factors that no taking occurred because the Applicants failed to show that denial would eliminate any economic uses of their property and because the Applicants voluntarily purchased a home in an historic district, which made them subject to comply with the regulations for exterior windows in that district. Furthermore, the Mayor's Agent noted that the appraised value for the home was significantly higher than their costs of purchasing and renovating it, and suggested they could sell it.

Windows:

The Guidelines, adopted in 1997 set forth strict requirements for window replacements, particularly with respect to the principal facades, provide that window replacements "must reasonably match the prior historic windows in all respects - configuration, method of operation, profile, dimension, material, and finish." The Standards, adopted in 2001, "represent a refinement and more precise codification of the principles articulated in the [Guidelines]." The Mayor's Agent denied the permit application, finding that vinyl windows on front facades of residential property in historic districts were not consistent with the Act, because such alteration does not adhere to the windows replacement policy for primary facades of row buildings articulated in the Guidelines and Standards.

The Applicants also argued that their permit should be accepted because windows in the Harrison Square development, a development within the same historic district, were also of a vinyl-type. The Mayor's Agent set aside the Applicants' claim, concluding it was "misplaced, and inapplicable" because that development entailed "significantly different circumstances" than their case, including the timing of the development (planning began before the historic district was designated), the fact that the Harrison Square development was completely new (built from the ground up on vacant land), and that as a matter of right, the developers could have built a much taller structure, but they limited the height in exchange for several negotiated concessions granted by the D.C. government.

Lack of Knowledge Defense:

The Applicants claimed that their permit application should be granted because they did not know what the applicable rules were for window replacements in historic districts. The Mayor's Agent rejected the Applicants' "lack of knowledge" defense, stating that: (1) the duty to be aware of the laws affecting one's property rested with the owners, (2) ignorance of the law is not a valid defense, and (3) to proceed otherwise would "tend to lead to an area-wide disobedience of laws that were adopted for legitimate reasons."

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