HPA No. 02-118, 02-233 (In re. AAI/Kitchens, Inc.)

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HPA No. 02-118, 02-233 (In re. AAI/Kitchens, Inc.)

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  • HPA Number: 02-118, 02-233
  • Building Name: AAI/Kitchens, Inc.
  • Case Name: In Re: Alteration of Storefront and Windows, 3324-3326 M St., NW
  • Address(es): 3324-3326 M St. NW
  • Date of Decision: October 3, 2002
  • Type of Case/Type of Permit Sought: Alteration of Storefront and Windows
  • Disposition: Denied
  • Issue Area(s): Mayor's Agent – Procedural; Consistent with the Purposes of the Act; Windows; Unreasonable Economic Hardship; Facade; Historical District-Contributing Building

Summary of Decision:

AAA/Kitchens, Inc. ("Applicant") is a tenant of the property in question, operating a kitchen appliance and goods retail store. Applicant sought approval from the Old Georgetown Board ("OGB") and the Commission of Fine Arts ("CFA") of a permit to alter the street level facades of the existing retail buildings at 3324-3326 M St., NW in the Georgetown Historic District. The Applicant sought the alterations to the two buildings because the current storefront and windows were not adequate to showcase the retail store's merchandise. Among other alterations, the Applicant sought approval to remove one of two existing doors, and to centralize the remaining door in the storefront. Applicant also sought to replace the current windows with larger show room type windows with overhead transoms. The end result would be one street-level doorway for the two buildings with a show area on each side of the entrance.

Applicant argued that the proposed alteration is consistent with the purposes of the D.C. Historic Landmark and Historic District Protection Act (the "Act"). Applicant also argued that denial of the alteration permit will impose an unreasonable economic hardship upon the Applicant.

Both OGB and CFA recommended that the alteration permit be denied. Both groups argued that the proposed alterations to the storefront would "remove historic fabric and any reference to the original buildings," and that the "[h]istoric storefront which has undergone renovation work recently must be retained." Applicant thus requested an administrative hearing before the Mayor's Agent.

The Mayor's Agent ultimately denied the requested permit. According to the Mayor's Agent, the end result of the alterations would reduce, if not eliminate, the ready appearance of two separate buildings. In addition, the building and its surrounding buildings had recently been renovated and are a part of a Declaration of Covenants executed in December 1999. The covenant allowed major renovations to the interior and rear of the buildings, but anticipated that façade renovations would not alter the appearance of the adjacent buildings as separate buildings from the public sidewalk and street frontage. According to the CFA, the recently restored historic storefronts "are contributing elements to the character of the historic District and should be preserved." The CFA further argued that restoration and retention of the storefronts was an "integral part of the review and approval for" rear renovations. The Mayor's Agent relied heavily on the existing covenant, as well as the fact that tenant entered the current lease after the covenant had been established, in ruling against the applicant.

In addition, the Mayor's Agent also gave great weight, as it is required to do under statute, to the Advisory Neighborhood Committee ("ANC") 2E's vote against the proposed alterations.

Furthermore, the Mayor's Agent noted that Applicant was a tenant of the property, not its owner, and therefore unable to claim "unreasonable economic hardship." The Act specifically recognizes unreasonable economic hardship as a potential remedy for a property owner, not a tenant. The Act defines unreasonable economic hardship to mean that "failure to issue a permit would amount to a taking of the owner's property."

The Mayor's Agent therefore ruled that the proposed alterations would change the street level facades of the two buildings, which contribute to the historic district. Thus, the proposed alterations are inconsistent with the Act. The alterations were also inconsistent with the covenants that had been established, and Applicant did not have standing to argue unreasonable economic harm. The Mayor's Agent, after according great weight to ANC 2E's position against the alterations, adopted the recommendations of the OGB and CFA and denied the permit.

Mayor's Agent – Procedural:

The Mayor's Agent is required to weigh heavily the recommendation of the local ANC. In this case, the local ANC voted against the alteration application: "the fact that the [ANC2E] commissioners voted against this application is entitled to great weight consideration, as mandated by D.C. Code, Sec. 1-309.10(d) (2001 ed.)."

The Mayor's Agent agreed with (but gave no indication of deference to) the OGB and the CFA recommendations against granting the permit: "The building that Applicant seeks to alter falls within the period of historical significance, and both the OGB and CFA applied a proper legal standard of evaluation for contributing factors under the law, which correctly resulted in the rejection of this Application."

Consistent with the Purposes of the Act:

"The proposed changes to the street level facades 3324-3326 M Street, N.W., would cause a change in the exterior appearance of two contributing buildings which are located in the Georgetown Historic District, and thus would cause an alteration that is inconsistent with the historic preservation law, D.C. Code, Sec. 6-1102 (2001 ed.)."

Unreasonable Economic Hardship:

Applicant did not have the requisite standing to claim unreasonable economic hardship because it was not the owner of the properties in question. Rather, Applicant was the tenant occupying the two properties. The Mayor's Agent ruled that the claim of unreasonable economic hardship was available only to property owners: "Further, and perhaps actually controlling, the Act, at D.C. Code, Sec. 6-1102(14), in defining unreasonable economic hardship, specifically recognizes unreasonable economic hardship as a potential remedy for the property owner, but does not accord similar standing to seek relief, via this option and claim, to a tenant." In a footnote, the Mayor's Agent explained that unreasonable economic hardship means that "failure to issue a permit would amount to a taking of the owner's (emphasis added) property, without just compensation or, in the case of a low-income owners(s) (emphasis added) as determined by the Mayor, failure to issue a permit would place an onerous and excessive financial burden upon such owner(s) (emphasis added)."

Facade:

The Mayor's Agent ruled that the proposed changes to the façade of the buildings, which contributed to the historic district, rendered the requested permit inconsistent with the Act: "The proposed changes to the street level facades 3324-3326 M Street, N.W., would cause a change in the exterior appearance of two contributing buildings which are located in the Georgetown Historic District, and thus would cause an alteration that is inconsistent with the historic preservation law, D.C. Code, Sec. 6-1102 (2001 ed.)."

Historical District-Contributing Building:

The Mayor's Agent ruled that the proposed changes to the façade of the buildings, which contributed to the historic district, rendered the requested permit inconsistent with the Act: "The proposed changes to the street level facades 3324-3326 M Street, N.W., would cause a change in the exterior appearance of two contributing buildings which are located in the Georgetown Historic District, and thus would cause an alteration that is inconsistent with the historic preservation law, D.C. Code, Sec. 6-1102 (2001 ed.)."

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Title: HPA No. 02-118, 02-233 (In re. AAI/Kitchens, Inc.)
Author: Government of the District of Columbia. Department of Consumer and Regulatory Affairs. Office of Adjudication
Permanent Link: http://hdl.handle.net/10822/761599
Date Created: 2002-10-03
Subject: Mayor's Agent: D.C. Administrative Procedure Act; Consistent with Purposes of the Act; Economic Hardship (Generally); Facade; Historic District (Contributing Building)


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