A Subject Matter Summary for "Subdivision"

The term "subdivision" refers to the process by which a parcel of land is divided or assembled into one or more lots for the purposes of sale and development. {1} Under the D.C. Historic Landmark and Historic District Protection Act ("the Act"), preservation is not confined to the bricks and mortar of a contributing building or landmarked structure but extends to their sites (setback, greenery, etc.). According to the D.C. Court of Appeals, "Part of the rationale for adopting the Act was to stem the tide towards the diminution of the landscape features of historic districts in the District of Columbia." {2} As a result, the Mayor’s Agent and the Historic Preservation Review Board ("HPRB") "are authorized to consider the entire site on which the structure sits"— the historic structure as well as the land.{3}

The approval of the Mayor’s Agent is needed for a property owner to subdivide a historic landmark or contributing property in a historic district. {4} The Mayor’s Agent can approve a subdivision if it is necessary in the public interest or if failure to subdivide would result in an unreasonable economic hardship for the owner. {5} The term "necessary in the public interest" means "consistent with the purposes of this subchapter as set forth in § 6-1101(b) or necessary to allow the construction of a project of special merit."{6}

In a complex case involving the subdivision of the historic Tregaron Estate, {7} the applicant sought to subdivide a 14-acre parcel in the middle of the Cleveland Park Historic District to create eight record lots for the purpose of developing eight single family residences. {8} In order to minimize the impact on the landmarked Estate, the assessment and taxation lots for seven of the eight houses would actually be smaller than the record lots. {9} The parcel to be divided constituted the historic landscape setting, designed by Ellen Biddle Shipman, for the estate’s historic mansion house designed by Charles Adam Platt. {10} The Mayor’s Agent concluded that the subdivision was necessary to build a project of special merit.

The subdivision would allow the conveyance of approximately 10 acres to the nonprofit Tregaron Conservancy, which would use the funds from the sale of the new residences to restore and protect the landscape for future generations. {11} The Mayor’s Agent noted that while the Historic Preservation Review Board ("HPRB") believed "residential construction on the site is inherently inconsistent with the character of this designed landscape, through careful siting, massing, design, landscaping and proposed construction techniques, the conceptual proposal for eight houses is exemplary in terms of its architecture and land use planning in minimizing the impacts of those houses on the landscape." {12} The HPRB concluded that the landscape rehabilitation at Tregaron "would constitute an unusual and substantial historic preservation accomplishment with clear benefits to the public." {13} Consequently, the Mayor’s Agent approved the subdivision as a project of special merit.

In another case, the Mayor’s Agent denied an application to subdivide the landmarked Williams-Addison house and grounds in the Old Georgetown Historic District. {14} The applicant sought to subdivide the 1858 property into two lots and build a single-family residence on the newly created lot. {15} The applicant claimed that the subdivision would "retain and enhance" the character of the landmark property because of a promise to donate a conservation easement on certain portions of the property. However, the Mayor’s Agent found the proposed draft (and unsigned) conservation easement insufficiently protected the open space on the property. {16} Moreover, the subdivision would forever alter one of the few remaining examples of 19th Century development patterns in Georgetown, thus degrading the character of the landmark. {17} The Mayor’s Agent denied the application, determining the subdivision would not actually "retain and enhance" the landmark as required by D.C. Code §6-1106(b)(2). {18}

As a secondary issue in the case, the Mayor’s Agent also determined that he has jurisdiction under the Act over the creation of assessment and taxation lots (and not just record lots) because they constitute theoretical building lots. {19} The Mayor’s Agent noted that the D.C. Council amended the Act in 1990 to tighten a potential "loophole" and to strengthen the Act’s regulation over subdivisions. {20}

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{1} D.C. Code §6-1102(13).

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

{3} Id.

{4} D.C. Code §6-1106(e).

{5} Id.

{6} D.C. Code §6-1102(10).

{7} In RE: Application for Subdivision Tregaron, HPA No. 04-145 (Mar. 30, 2006).

{8} Id. at 1.

{9} Id.

{10} Id. at 2.

{11} Id. at 2.

{12} Id. at 4.

{13} Id. Aiding the work of the HPRB and Mayor’s Agent was that the parties, after years of fighting, had been nudged into a comprehensive settlement by the HPRB. This extensive agreement, in an unusual step, had been incorporated into the Mayor’s Agent’s decision. Interestingly, only two of the allowed houses were subsequently built, and those fronted Macomb St.

{14} In the Matter of Application of Equity Appreciation Partners Capital Fund 1 LLC for the Subdivision of the Williams-Addison House, HPA No. 07-267 (July 7, 2008).

{15} Id. at 1.

{16} Id. at 11.

{17} Id. at 16.

{18} Id. at 11.

{19} Id. at 13 (citing D.C. Code §6-1101(13)).

{20} Id. at 14.

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