HPA No. 2001-140, 2002-155 (In re. Sulekoiki Property)

HPA Number: 2001-140, 2002-155
Building Name: Sulekoiki Property
Address: 942 P St. NW
Date of Order: 17-Jun-03

Summary:

This decision involves two separate applications: HPA 2001-140 and HPA 2002-155. Both applications relate to a vacant lot at 942 P Street, N.W., which is located within the Shaw Historic District. In December 2000, Sulekoiki began excavating the original foundation of a previously demolished building on the affected site. Prior to issuance of the foundation permit, neither the permit nor the permit application were filed with or reviewed by the DC Historic Preservation Office (“HPO”) as required by D.C. Law 2-144. A Stop Work order and civil citation were issued to Sulekoiki on 01/22/00, although no revocation of the erroneously issued foundation permit was sought at the time.

HPA 2001-140

On 01/02/01, Sulekoiki submitted an application for concept review to HPO. His plans included a proposed curb cut on 10th Street plus an across-the-sidewalk driveway and a parking pad on the public space in the rear yard. On 01/11/01, HPO staff reviewed and approved Sulekoiki’s 01/02/01 permit application for revisions to the foundation construction. On 02/22/01, the DC Historic Preservation Review Board (“HPRB”) reviewed Sulekoiki’s application for conceptual review of the proposed construction of a two-unit residential building (HPA No. 2001-140). Although the plans included the curb cut and parking pad, Sulekoiki made no formal application for either. HPRB’s review was limited to building design and massing issues.

On 03/13/01, HPO approved a limited permit to proceed with the framing of the residence (permit #B435584), which noted that “[f]inal architectural plans, curb cut and parking on site must be approved by Historic Preservation under a different permit.” After HPRB referral to staff, Sulekoiki renewed his request for approval of a curb cut, driveway, and parking pad.The application was placed on the HPRB agenda for 03/22/01, still under HPA 2001-140. Before considering Sulekoiki’s curb cut application, HPRB rejected another applicant’s application for a curb cut and expressed their general opposition to curb cuts in historic districts. Sulekoiki subsequently left the meeting before his application was reviewed. HPRB adopted the Staff Report and denied the still-in-concept curb cut request.

HPRB also suggested that Sulekoiki seek a waiver of the off-street parking requirement from the DC Board of Zoning Adjustment (“BZA”). The Staff relied on the Comprehensive Plan, §807(16)(f) in making its recommendation. HPO Staff issued a final action form letter to Sulekoiki, dated 03/26/01, advising him of HPRB’s action taken after his premature departure at the 03/22 meeting. At the Mayor’s Agent hearing, Sulekoiki denied receiving this letter prior to January 2002 and asserted that his appeal rights had been compromised as a result of not having been timely and properly informed of the decision. The Mayor’s Agent held that whether Sulekoiki timely received the letter was irrelevant because there is no right to appeal the denial of a concept application. On 12/13/01, Sulekoiki obtained a Public Space Use permit (#P600448) to construct a single-car driveway 20’ long by 12’ wide and a curb cut. The permit did not authorize the construction of a parking pad. The permit was not reviewed by HPO.

HPA 2002-155

On 01/07/02, Sulekoiki applied to the Bureau of Land Regulation Administration (“BLRA”) for the additionally mandated curb cut application. The application was referred to HPO and assigned the number HPA 2002-155. By the time citizens had notified HPO of Sulekoiki’s actions under #P600448, he had already completed the construction of the unauthorized parking pad.

On January 18, Sulekoiki received a Violation Notice and a second Stop Work Order from HPO, which cited him for construction without a permit. A copy of the Notice of Violation was provided to the listing real estate agent, and eventually to the Lowes, to place them on legal notice of the unresolved permit issues relating to the property. After issuance, #P60048 was referred to HPRB and subsequently rejected. HPRB determined that the permit was 1) incompatible with the Shaw Historic District; 2) against the provisions of the Comprehensive Plan; and 3) inconsistent with the purposes of D.C. Law 2-144.

The Lowes purchased the property on 01/24/02 and became full parties in interest in this case. HPRB considered both HPA 2001-140 and HPA 2002-155 on 02/28/02. Sulekoiki and J.C. Lowe were both present at the meeting. Lowe informed the Board that he did not want to obtain a variance from BZA. On 03/01/02 and 03/14/02, HPO staff issued identical rejection letters to Sulekoiki and the Lowes, respectively. By letter dated 03/11/02, Sulekoiki appealed the decision to the Mayor’s Agent. He argued that HPA 2001-140 had not been timely acted upon by the Mayor’s Agent within 120 days from the date of filing of the original application, so issuance of the permit was required by the terms of §6-1107(f). Although the Lowes did not formally appeal the decision, they were permitted to join Sulekoiki as full co-parties in interest. The Mayor’s Agent dismissed HPA 2001-140 and denied HPA 2002-155.

Alteration:

The Mayor’s Agent held that a curb cut is properly evaluated as an alteration under §6-1105 of D.C. Law 2-144. Consequently, such projects are not entitled to the presumption of compatibility afforded to new construction projects under §6-1107.

Comprehensive Plan:

Section 807(16)(f) of the Comprehensive Plan provides that the “landscaped green space on publicly owned, privately maintained front and side yards in Historic Districts and Historic Landmarks should be preserved

[and that special] care should be taken to protect these historic green areas from being paved over for vehicular access and parking.” The Mayor’s Agent held that a curb cut and the construction of a parking pad at the affected site would be inconsistent with this provision of the Comprehensive Plan.

Consistent with Purposes of the Act:

The Mayor’s Agent held that the Applicant’s request for a curb cut, driveway, and parking pad “would not only destroy green space, but is inconsistent with the Comprehensive Plan, the residential character of the Shaw Historic District, and the Act and governing regulations.”

Curb Cuts:

The Mayor’s Agent opined that where “curb cuts, driveways, and parking pads have been introduced, often illegally, it is a major intrusion on the streetscape of the historic district.” See Gondelman v. District of Columbia Department of Consumer and Regulatory Affairs, 789 A.2d 1238 (D.C. 2002).

The Mayor’s Agent observed that “the BZA has approved variances from the off street parking requirements for residences and commercial buildings in historic districts precisely because the curb cuts and destruction of green space these would require have been disapproved by the HPRB.” The Mayor’s Agent concluded that “even the BZA rejects Applicants’ rigid assertion that the preservation laws must yield to the off-street parking requirements of the zoning regulations.”

Historic Preservation Review Board - Procedural:

Because HPA 2001-140 was a concept application, the HPRB was not bound by the presumptive requirement that it render a decision within 120 days of the filing of the permit application. According to 10 DCMR §2512.5, the HPRB may “review conceptual design review applications indefinitely, without subsequent referral to the Mayor’s Agent.”

Mayor’s Agent- Procedural:

The Mayor’s Agent held that the Applicant had no right to appeal HPRB’s denial of HPA 2001-140 because the application never progressed beyond the conceptual review stage. Under 10 DCMR §2512.6, “the Mayor’s Agent is specifically forbidden to take action on applications for conceptual design review.”

Because HPA 2002-155 involved a formal application for off-street parking, the Applicant may properly appeal the HPRB’s denial to the Mayor’s Agent.

New Construction:

Under §6-1107 of D.C. Law 2-144, applications for new construction within an historic district are entitled to a statutory presumption of compatibility. The Mayor’s Agent determined that the issue of whether the Applicant’s proposed curb cut should be considered as an alteration or as a new construction project was irrelevant to the resolution of this case. However, the Mayor’s Agent held that curbs cuts should, as a general matter, be reviewed as alterations pursuant to §6-1105.

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