A Subject Matter Summary for "Curb Cuts"

Curb cuts allow homeowners to take a portion of the public space devoted to on-street parking to allow for their private driveways or off-street parking. The practice was commonly allowed into the 1980s until there were more historic districts, and it was more clearly seen to eliminate needed on-street parking, destroy green space, and jeopardize the character of older historic neighborhoods--few of which had off-street parking. Today both the Historic Preservation Review Board and the Old Georgetown Board strongly discourage the introduction of new curb cuts as they consider them generally incompatible with the character of pre-automobile historic districts. In very "unusual and rare circumstance[s]", the Mayor’s Agent has approved a curb cut but the prevailing norm is that curb cuts are not permitted. {1}

In the leading alteration case of Matter of Gondelman, HPA No. 00-306 (Nov. 10, 2000), and the subsequent court case, Gondelman v. D.C. Department of Consumer & Regulatory Affairs , 789 A.2d 1238 (D.C. 2002), the Mayor’s Agent and then the court rejected as inconsistent with the Act a homeowner’s application to construct (i) a garage below the front porch of a house located in the pre-automobile Kalorama Triangle Historic District, (ii) a driveway cutting across the front yard, and (iii) a curb cut to access the driveway. {2} The proposed garage and driveway would have removed about 30% of the landscaped berm in front of the house. {3} The Mayor’s Agent concluded that the application would eliminate at least one on-street parking space and would reduce the front yard green space integral to the historic district. {4} Under the Act, the historic landscaping is "a component that needs to be specifically protected, enhanced, and perpetuated." {5} The Mayor’s Agent also feared the precedent that a curb cut would create, with other owners rushing to apply and further eliminating key features of the Historic District. {6} The Mayor’s Agent rejected the arguments put forward by the applicants that a curb cut would enhance the property and readapt it for use in today’s automobile-centric era. {7} The D.C. Court of Appeals upheld the Mayor’s Agent’s decision. {8} The court noted the petition’s burden "was a heavy one," and that "it was neither unreasonable nor legal error for the Mayor's Agent and the HPRB to reference the section of the District’s Comprehensive Plan which mandates that ‘landscaped green space on publicly owned, privately maintained front and side yards in historic districts and on historic landmarks should be preserved.’" {9}

Curb cuts for new construction in an historic district are also generally not approved. In the Matter of Lowe, HPA No. 02-155 & 01-140 (June 17, 2003), the Mayor's Agent denied applications for a parking pad and curb cut on a former vacant lot in the Shaw Historic District because the request "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." {10} The Mayor’s Agent explained 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." {11}

The Mayor’s Agent has approved a curb cut in an "unusual and rare circumstance." {12} In HPA No. 04-457, a homeowner of an end-unit rowhouse in the Georgetown Historic District applied for an alteration permit to install a curb-cut and one-car garage in a stone retaining wall along the side of his property. {13} The Mayor’s Agent approved the plan, which, after significant negotiation, was supported by the Historic Preservation Office, the local ANC, and the Old Georgetown Board. Several unique facts made this case distinguishable from Gondelman (HPA No. 00-306 and 789 A.2d 1238), and Lowe (HPA No. 02-155 & 01-140). Unlike those cases, the public space in Ledecky was already paved so there would be no loss of green space, a defining characteristic of Georgetown’s historic district. {14} In addition, the house had at one time contained a garage at the exact same proposed location. {15} Moreover, the Mayor’s Agent concluded that significant alterations had been made to the property over the years, including a change in street level "so that little, if any, of the street level’s original fabric appeared as it did in the mid- to late-nineteenth century." {16}

-----

{1} See In the Matter of Jonathan Ledecky, 1400 34th Street, NW, HPA No. 04-457 (December 15, 2004).

{2} Matter of Gondelman, HPA No. 00-306 (Nov. 10, 2000) at 2.

{3} Id.

{4} Id. at 7

{5} Id. at 8.

{6} Id.

{7} Id.

{8} 789 A.2d at 1247.

{9} Id. at 1245-6.

{10} Matter of Lowe, HPA No. 02-155 & 01-140 (June 17, 2003) at 11-12.

{11} Id. at 15.

{12} See In the Matter of Jonathan Ledecky, 1400 34th Street, NW, HPA No. 04-457 (December 15, 2004) at 4.

{13} Id. at 2.

{14} Id. at 6.

{15} Id.

{16} Id.

-----