A Subject Matter Summary for "Consistent with Purposes of the Act"

For an alteration or demolition of a landmark or contributing building in a historic district to be considered "necessary in the public interest," and thus allowed, the project must be either "consistent with the purposes of [the District of Columbia Historic Landmark and Historic District Protection Act (the "Act") of 1978] as set forth in § 6-1101(b)" or "necessary to allow the construction of a project of special merit." {1}

D.C. Code §6-1101(b) sets forth the purposes of historic preservation in the District:

"(1) With respect to properties in historic districts:

(A) To retain and enhance those properties which contribute to the character of the historic district and to encourage their adaptation for current use;

(B) To assure that alterations of existing structures are compatible with the character of the historic district; and

(C) To assure that new construction and subdivision of lots in an historic district are compatible with the character of the historic district;

(2) With respect to historic landmarks:

(A) To retain and enhance historic landmarks in the District of Columbia and to encourage their adaptation for current use; and

(B) To encourage the restoration of historic landmarks.

(3) With respect to archaeological sites designated as historic landmarks or contributing properties within historic districts:

(A) To protect historic and prehistoric archaeological sites from irreparable loss or destruction; and

(B) To encourage the retrieval of archaeological information and artifacts when the destruction of an archaeological site is necessary in the public interest."

Whether a proposed action is consistent with the Act thus "requires consideration of whether a demolition could be accomplished while maintaining the salient historic qualities of a building, so that it may be readily understood by present and future generations." {2} The Historic Preservation Review Board ("HBRP") makes a determination of consistency when it reviews an application referred to it. {3} If the HBRP finds the project to be inconsistent with the Act, the applicant can then appeal to the Mayor’s Agent. A number of cases have illuminated what can and cannot be considered consistent with the Act, and the Mayor’s Agent must grant substantial deference to the consistency findings of the HBRP. {4}

In the old Italian Embassy case, HPA No. 06-171, the Mayor’s Agent determined that the proposed demolition of part of the landmark Beaux Arts structure was not consistent with the purposes of the Act. {5} As the HBRP is "the expert agency charged with reviewing proposed demolitions under the Act," the Mayor’s Agent decided to "defer to and adopt" the HPRB’s findings that the proposed demolition was not consistent with the purposes of the Act. {6} The project would have required demolition of significant exterior features of the existing building, including twin chimneys that were recognized as architecturally and historically significant by the D.C. Commission of Fine Arts. {7}

In a case involving the adaptive reuse of the historic O Street Market, {8} the Mayor’s Agent approved the demolition of the west wall of the market and surrounding new construction to allow for a mixed-use project of special merit. {9} The applicant did not raise the issue of consistency with the Act at the Mayor’s Agent hearing, but the Mayor’s Agent concluded that the project nevertheless was consistent with the purposes of the Act because it would "retain, enhance, and restore a historic landmark for adaptive reuse." {10}

Based on the text of the Act and its legislative history, it is extremely difficult for alterations and demolition to be approved as consistent with the Act at landmarked buildings and contributing buildings in a historic district. The Mayor’s Agent in the Italian Embassy case cited the legislative history of the Act to support the conclusion that the "‘consistency’ exception is limited to the demolition of non-contributing features or portions of a landmark." {11}

If demolition of less than a significant part of a historic landmark "retains and enhances the landmark and encourages adaptation for current use," it can be consistent with the purposes of the Act. {12} In the Vigilant Firehouse case, HPA No. 95-33, the Mayor’s Agent found that demolition of the building’s external south wall and its restoration for the building’s use as a restaurant was consistent with the Act. {13} It should be noted that the Mayor’s Agent found the south wall no longer contributed to the historic landmark because of its deteriorated condition--the bricks comprising the wall would crumple in one’s hand. {14} Furthermore, the Mayor’s Agent concluded that the demolition of the south wall did not detract from the building’s other "salient historic qualities"—the roof, cupola and façade—that still remained. {15}

While demolition of a contributing building in a historic district is generally considered inconsistent with the purposes of the Act--because a major purpose is to "retain and enhance those properties which contribute to the character of the historic district and to encourage their adaptation for current use"--, the Mayor’s Agent has never directly decided whether the demolition of an entire contributing building in a historic district can ever be consistent with the Act. {16}

Thus, applicants proposing alterations or partial demolition of either landmarks or contributing buildings face a heavy burden. {17} The Mayor’s Agent in a case involving the Webster School, HPA No. 00-462, explained why the narrow interpretation of consistency was necessary:

"To read the ‘consistency’ exception as a broad license to demolish landmarks or buildings after the HPRB has granted them protection would be to assume that the Council meant to give landmark status with one hand (via the HPRB) and then to take away with the other (via the Mayor’s Agent). There is nothing in the text or history of the Act to support such a reading. The Council intended only a short list of three exceptions to justify and override its public policy and statutory enactment, which were both designed and adopted to retain historically significant structures." {18}

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{1} D.C. CODE § 6-1101(10) (2014)

{2} In re Application Of Embassy Real Estate Holdings, LLC, HPA No. 06-171 (Aug. 29, 2006) at 24-5.

{3} See D.C. CODE § 6-1103(c) (2014)

{4} In Re Application of Washington Drama Society, Inc. (Arena Stage), HPA Nos. 02-471, 02-472, 02-515, S.L. 02-262 (Sept. 27, 2002)("[D]etermination by [the Historic Preservation Review Board] on a matter within its expertise [must be] accorded considerable deference.").

{5} HPA No. 06-171 at 34.

{6} Id. at 27 (citing Committee for Washington’s Riverfront Parks, 451 A.2d at 1194).

{7} Id. at 21.

{8} In Re Application of O Street Roadside, LLC, for Partial Demolition of 1400 Seventh Street, N.W. (The O Street Market)

{9} Id. at 7.

{10} Id.

{11} HPA No. 06-171 at 25.

{12} See D.C. Preservation League v. D.C. Dep’t of Consumer & Regulatory Affairs, 711 A.2d 1273, 1276 & n. 2 (D.C. App. 1998).

{13} Backbay Restaurant Group (Vigilant Firehouse), HPA No. 95-33 (June 20, 1995) at 15.

{14} See Id. at 5.

{15} Id. at 14.

{16} See 913 L St. NW, HPA Nos. 14-460 and 14-461 (Jan. 16, 2015) at 5 (quoting D.C. CODE § 6-1101(b)(1)(A) (2014))

{17} See HPA No. 06-171 at 25.

{18} Id. at 26 (quoting In re the Webster School, HPA 00-462. (Feb. 16, 2001)).

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