A Subject Matter Summary for "Alteration (Including Addition)"

The Historic Landmark and Historic District Protection Act of 1978 (the "Act") allows limited alterations or additions to a landmark or a contributimg building in a historic district.{1} Alterations or additions require a permit issued by the Mayor, on the advice of the Historic Preservation Review Board ("HPRB").{2}

The District of Columbia Code defines the term "alteration" as "a change in the exterior appearance of a building or structure or its site, not covered by the definition of demolition" that requires a permit.{3} Even relatively minor projects such as window replacement can fall under this definition. The term encompasses any change to "interior space which has been specifically designated as a historic landmark."{4}

Generally speaking, the Act, Mayor’s Agent, and court decisions support a continuum of protection, with alterations to landmarks given strict scrutiny, and alterations to contributing buildings within historic districts given slightly more leeway. The basis for this distinction lies in the text of the Act itself. For contributing structures within historic districts, two of the purposes of the Act include "encourag[ing] their adaptation for current use" and assuring "that alterations of existing structures are compatible with the character of the historic district."{5}

The twin purposes of the Act for alterations to landmarks, on the other hand, do not mention "compatibility" per se : i.e., they must "retain and enhance historic landmarks…[and] encourage their adaptation for current use"{6} as well as "… encourage the restoration of historic landmarks."{7} It was obvious that not much in the way of alterations or additions was contemplated for landmark structures.

The Mayor will deny an alteration permit unless "the Mayor finds that such issuance is necessary in the public interest or that a failure to issue a permit will result in unreasonable economic hardship to the owner."{8} For an alteration to be considered "necessary in the public interest," the project must be either "consistent with the purposes of [the Historic Preservation Act] as set forth in § 6-1101(b)" or "necessary to allow the construction of a project of special merit." In a case involving the Cappucino Food Building in the Georgetown Historic District, the Mayor’s Agent rejected an after-the-fact alteration permit because the replacement of windows and wood storefront features with metal features failed to "retain and enhance those properties which contribute to the character of the historic district," and did not "assure that the alteration of existing structure [was] compatible with the character of this historic district."{9}

Note that with respect to alterations to contributing buildings, they must both "retain and enhance" AND "contribute to the character of the historic district."{10} Thus in Gondelman v. D.C. Dep’t of Consumer & Regulatory Affairs where the owners argued that it was enough that their new garage would adapt their contributing building to today’s car-centric world, the court said,

"First, under §§ 6-1101 (b)(1)(A), they must establish that their proposed alterations "retain and enhance ... [historic] properties [in a manner] which contributes to the character of the historic district and [which] encourages the adaptation [of historic properties] for current use." Id. (emphasis added). Under this subsection it is insufficient to emphasize only enhancement to adapt a property for current use. Rather, the applicant must also demonstrate that the proposed alterations will retain and enhance the historic property so that it contributes to the character of the historical district."{11}

The Comprehensive Plan acknowledges that additions to historic structures "should achieve harmony with the historic surroundings through basic good design and close attention to the characteristics and design principles of the historic environment" and not simply "mimic historic buildings."{12} According to D.C. regulations, the removal of historically valuable material or distinctive architectural features is discouraged; any alterations or new construction should be "in scale with and respect historic context through sensitive siting and design and the appropriate use of materials and architectural detail" reflecting the height, scale, materials, color, texture, and character of the historic property.{13} The Mayor’s Agent enjoys great discretion in making the compatibility determination and can rely on a variety of extrinsic factors. Increasingly, the Mayor’s Agent will defer to the HPRB’s expertise on questions concerning how the various elements mentioned above impact compatibility.{14}

Over time, what has been considered an allowable alteration has changed. For example, since the 1990s, façadism—the preservation of just the façade of a building—has fallen out of favor as a preservation method, and it is highly unlikely that early Mayor’s Agent cases dealing with façadism, especially the Rhodes Tavern case,{15} would be decided the same way today. Indeed, under current thinking, more than mere façade preservation is needed to obtain the exemption under special merit.{16} In the St. Patrick’s case, noted above, the Mayor’s Agent agreed with the HPRB that "the proposed demolition of the seven historic commercial buildings, even taking into account the retention and restoration of the façades, is not ‘consistent with the purposes of the Act.’"{17}

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{1} See 10 DCMR 1011.3 ("The Act establishes that the test for alterations/additions and new construction is "compatibility with the character of the historic district.")

{2} D.C. CODE ANN. §§ 6-1105(b) & 6-1107(b).

{3} D.C. CODE ANN. § 6-1102(1).

{4} Id.

{5} D.C. CODE ANN. §§ 6-1101(b)(1)(A) & (B).

{6} See Gondelman v. Dep’t of Consumer and Regulatory Affairs, 789 A.2d 1283, 1246-47 (D.C. 2002)

{7} Id. at § 6-1101(b){2}.

{8} D.C. CODE ANN. § 6-1105(f) (2002).

{9} In the Matter of: the Application of El S. Elissawy to alter 1438 Wisconsin Avenue N.W., HPA No. 09-290 (Sept. 17, 2010) at 8 (quoting D.C. Code §§ 6-1101(b)(1)(A)-(B)).

{10} D.C. CODE ANN. § 6-1101 (b)(1)(A).

{11} Gondelman v. D.C. Dep’t of Consumer & Regulatory Affairs, 789 A.2d 1238, 1245-46 (D.C. 2002).

{12} 10 DCMR 1011.4.

{13} 10 DCMR 1011.8.

{14} See In the Matter of: Lisa Foster and Alan Bersin, HPA No. 13-600 (August 29, 2014) (The Mayor’s Agent deferred to the HPRB’s expertise on questions of style and material compatibility because "members of the HPRB are chosen for their expertise and interest in historic preservation and are confirmed by the District of Columbia Council.")(internal citation omitted). See also In the Matter of 1901 4th St. NW, HPA No. 14-566 (March 2, 2015) at 1 ("The Mayor’s Agent defers to expert judgements by the HPRB about compatibility." ).

{15} In Application to raze 1429 F. Street, NW (Rhodes Tavern), HPA No. 80-41 (1979).

{16} See In the Matter of the Archdiocese of Washington (St. Patrick’s), HPA Nos. 99-219, 220, 221, 222, 224, 225, 226, 285 (1999).

{17} Id. at 14.

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