HPA No. 03-480, 481 (In re. Darrin Phillips, et al.)

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HPA No. 03-480, 481 (In re. Darrin Phillips, et al.)

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  • HPA Number: 03-480, 03-481
  • Case Name: In re Darrin Phillips, et al.
  • Location of Property: 1515 and 1517 32nd Street, N.W., Lots 74 and 75 in Square 1270
  • Date of Decision: 12/24/2003
  • Type of Case/Type of Permit Sought: New Construction
  • Disposition: Granted

Summary of Decision:

Gtown 32nd LLC (the " Applicant ") sought permission to construct two residential buildings on property identified as Square 1270, lots 74 and 75 (the " Subject Property "), located within the Georgetown Historic District (the " Historic District ") and situated on the square included in the designation of the landmark Bowie-Sevier House (the " Historic Landmark "). The Mayor's Agent conditionally granted the request,[1] concluding that the project was compatible with the character of the Historic District and the Historic Landmark, as required by the D.C. Historic Landmark and Historic District Protection Act of 1978 (the " Act "). The Advisory Neighborhood Commission (the " ANC ") and the Commission of Fine Arts (the " CFA ") did not recommend approval of the new construction application, largely on account of the height of the proposed buildings (three stories instead of two stories, the latter being more common on the block in which the Subject Property sat). The Mayor's Agent concluded that those recommendations were "too limited in scope" because the statute required consideration of the character of the entire Historic District, not just the block on which the new construction was to be built. Under the Act, recommendations of the CFA are advisory and the Mayor's Agent is required to give "great weight" to the views of the applicable ANC - the Mayor's Agent is not required to adopt the views of either entity. Further, under the Act, the proposed construction is to be considered "in context of the landmark, its history, and the entire Historic District, not just by particular block." The Mayor's Agent found that the character of the Historic District, "with its varied building sizes, heights, and styles of buildings, is replete with three-story or taller buildings juxtaposed with two-story buildings, and such result is consistent and compatible with the character of the Historic District as a whole."

Mayor's Agent - Procedural:

  • The Mayor's Agent granted party status to a group of neighbors who opposed the project (the " Parties in Opposition ").
  • Motion for Postponement. The Applicant initially had four actions pending before the Mayor's Agent in connection with applications to construct additional houses on nearby lots. These cases were withdrawn by the Applicant following a ruling by the Board of Zoning Adjustments that the lots could not be developed as a matter of right under applicable zoning, leaving the only applications before the Mayor's Agent those that concerned construction of two houses on the Subject Property. The Parties in Opposition moved that the hearing be postponed pending review by the CFA and the ANC of the applications within the reduced context of a two-house proposal, and the Mayor's Agent denied this request. The Mayor's Agent based this denial upon statutory requirements as well as the fact that the views of the ANC and the CFA were merely advisory, with the Mayor's Agent having sole authority under the Act to approve or deny the application.
  • The Mayor's Agent stated: "Pursuant to D.C. Official Code § 6-1107(f), there is a rebuttable presumption that permits for new construction shall be issued as compatible with the historic district or landmark. Opponents have the burden of proof to demonstrate that proposed new construction is not compatible with the historic district or landmark."
  • Under D.C. Code Ann. § 6-1107 (b) (2007), the Mayor's Agent must consider any recommendation by the CFA; however, these recommendations are not binding on the Mayor's Agent.
  • The Mayor's Agent ruled that the ANC report "would be received and considered only within the context of the ANC's statutory role under the Act." "Although [the recommendations of the ANC were] carefully considered with an eye towards possibly according their position 'great weight' as provided for in D.C. Official Code, § 1-261(D), the Mayor's Agent conclude[d] that the ANC's position is too limited in scope, and cannot be accorded merit in this case under the parameters of the Act."

Compatibility:

  • The Mayor's Agent pointed out that "compatible" was not defined in the Act but noted that it must include "height and scale, setbacks, width, materials to be used, and design."
  • The Mayor's Agent concluded that the proposed residential buildings were compatible with the character of the Historic District as well as the Historic Landmark, as provided for in D.C. Code Ann. § 6-1107 (f) (2007), over objections from the CFA, the ANC, and the Parties in Opposition. These groups were concerned that the proposed height of the buildings, though approved by the Board of Zoning Adjustments, would render the buildings incompatible with the character of the neighborhood. The Mayor's Agent found, however, that the opposition mistakenly focused on the project's compatibility with the "micro-neighborhood," rather than on its compatibility "within the larger context, i.e., Square 1270, the entire Historic District, or the landmark Bowie-Sevier House." The Mayor's Agent noted "Other narrow streets in the Historic District are lined by contributing, historic buildings of more disparate heights..."
  • The Parties in Opposition were supported by testimony from Emily Eig, an expert in architectural history; Ms. Eig's report addressed the history and nature of the houses in the immediate neighborhood of the Subject Property and concluded that the proposed construction would negatively impact the character of the immediate neighborhood as the buildings were to be taller than the residences across the street. The Mayor's Agent found that Ms. Eig's testimony was "not credible," based on her testimony in previous cases that new construction must be viewed in light of its compatibility with the entire relevant historic district, not merely with the immediate neighborhood.
  • In the opinion of the Mayor's Agent, adoption of the standards proposed by the ANC, the CFA and the Parties in Opposition would "significantly narrow the scope of how development can continue to occur within established entire historic districts, and... would eliminate the consideration of the broader Historic District as a whole from the compatibility standards of the Act."

Zoning:

  • The Mayor's Agent noted that the R-3 zoning of the area allowed for a building height of 40 feet and that the proposed height of the buildings was only 33 feet and found that "the CFA cannot impose a height restriction, the effect of which would rezone the block, and that its recommendation that three-story housing is too tall for the block is, in essence imposing a height restriction not provided for in the zoning on the site."

[1] The applications were approved under the condition that the Applicant would work with Historic Preservation Review Board staff to design a site plan that would accommodate the preservation of mature trees on the Subject Property and the construction of a brick sidewalk in keeping with the character of the Historic District.

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  • HPA Number: 03-480, 03-481
  • Case Name: In Re Darrin Phillips, et al.
  • Location of Property: 1515 and 1517 32nd Street, N.W., Square 1270, Lots 74 and 75
  • Date of Decision: 05/20/2004
  • Type of Case/Type of Permit Sought: Approval of Modified Site Plan as Consistent With December 24, 2003 Decision and Order
  • Disposition: Granted

Summary:

Pursuant to the Condition, the Applicant met with a staff member (Tim Denee) from the HPRB who determined that it was infeasible to both install the sidewalk and preserve the mature trees, as the size and root system of the trees prevented the laying of a sidewalk between the trees and the curb line (and even if a sidewalk could be laid, it could not be made wide enough to comply with District and ADA requirements). The HPRB staff member recommended preserving the mature trees, because: (i) their retention would "help to preserve much of the present character of the street;" (ii) there was no indication that a sidewalk had ever been present on the east side of the street; and (iii) if the Applicant constructed a sidewalk, it would "abruptly end" and not extend fully to meet the adjoining Q Street.

The Mayor's Agent determined that the efforts of the Applicant to fulfill the Condition, including the on-site meeting with the HPRB staff member, represented a "reasonable effort to come into compliance," and that the "one viable option remain[ing is to] take all reasonable steps to protect, save, and nurture the trees, rather than to remove the trees for installation of the sidewalk." The Mayor's Agent found that "based on the site conditions... the Applicant has complied with the limiting condition of the [Prior Order], insofar as the condition, fairly read, required that Applicant work with the HPRB staff in an effort to create a design that would accommodate both the trees and a sidewalk." Thus, the Mayor's Agent determined that "the Applicant's request for approval of the revised site plan is in compliance with [the Prior Order]."

Mayor's Agent - Procedural:

The Mayor's Agent stated that because the condition in the Prior Order required only that the Applicant collaborate with the HPRB staff to come up with a design that fulfilled the Condition, and not that other parties review the design for compliance, that no further review of the revised site plan was warranted. "The implementation of an administrative order's condition(s) is appropriately left solely to the Applicant and the relevant governmental review entities, in this case the HPRB staff."

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  • HPA Number: 03-480, 03-481
  • Case Name: In Re Darrin Phillips, et al.
  • Location of Property: 1515 and 1517 32nd Street, N.W., Square 1270, Lots 74 and 75
  • Date of Decision: 06/09/2004
  • Type of Case/Type of Permit Sought: Petition for Reconsideration of Modified Decision and Order
  • Disposition: Granted

Summary:

Following the issuance of the May 20th Order, certain individuals who had acquired party status for this case on February 11, 2004 (the " Petitioners ") petitioned the Mayor's Agent for reconsideration of the May 20th Order because the Petitioners had not been aware of the Applicant's request for approval of a revised site plan and desired the opportunity to be heard before the Mayor's Agent issued a final, modified decision and order. The Mayor's Agent granted this petition, ordering that: 1) the May 20th Order be vacated; 2) that a de novo hearing be conducted on June 30, 2004; 3) that the Applicant provide the Petitioners with a copy of the letter from the HPRB staff member detailing the infeasibility of both installing a sidewalk and preserving the mature trees as well as a copy of the Applicant's petition to the Mayor's Agent for approval of the revised site plan; and, 4) that any future legal documents and correspondence between any party and the Mayor's Agent be served upon the other parties.

Mayor's Agent - Procedural:

This decision implies that where a conditional order has been granted, and a revised site plan is requested to be approved as a result of efforts to satisfy the conditions of the prior order, entities granted party status in the prior proceedings are entitled to a hearing before the Mayor's Agent concerning the revised site plan.

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  • HPA Number: 03-480, 03-481
  • Case Name: In Re Darrin Phillips, et al.
  • Location of Property: 1515 and 1517 32nd Street, N.W., Square 1270, Lots 74 and 75
  • Date of Decision: 06/23/2004
  • Type of Case/Type of Permit Sought: Multiple Motions for Reconsideration of Modified Decision and Order - whether case should be reopened to receive testimony regarding a modified site plan and related Mayor's Agent Order dated May 20, 2004, or whether case should be dismissed for lack of jurisdiction or stayed pending judicial review.
  • Disposition: Granted in part and denied in part.

Summary:

The Mayor's Agent issued this order in response to the parties' respective petitions and motions regarding reconsideration of the May 20th Order. The Applicant's position was that the Original Order was a complete and final order and did not require review by either the Mayor's Agent or other parties as to whether and how the Condition was resolved. The Applicant cited the procedure of the Board of Zoning Adjustment and the Zoning Commission as support for this position. The Mayor's Agent disagreed: "the inability of Applicant to meet both components of the Condition created a situation where the precondition for issuance of the overall order granting new construction permits and authority was left hanging in abeyance." In such a situation where both conditions of an order could not be met, the Mayor's Agent needed to be consulted and asked to determine whether the Applicant had made a good faith attempt to fulfill the Condition and whether the portion thereof that was not possible to satisfy could be waived or removed.

The Petitioners asserted that the Mayor's Agent lacked jurisdiction to reopen the record and give reconsideration, since the official record for the Original Order was closed on December 15, 2003 and a final order was issued on December 24, 2003, and because a court case appealing the Original Order was pending. The Mayor's Agent disagreed with this position, stating "That the Mayor's Agent is asked to amend a previously issued order does not automatically rob him of jurisdiction simply because the order has been appealed to the court."

Thus, the Mayor's Agent ordered a hearing to be conducted on June 30, 2004 to receive testimony and evidence in reference to the Applicant's request for approval of the revised site plan. The Mayor's Agent stated that no other issues would be entertained at such hearing.

Mayor's Agent - Procedural:

  • The Mayor's Agent asserted that he does not lose jurisdiction over a matter merely because the underlying order is the subject of an appeal.
  • The Mayor's Agent stated that when a permit is granted subject to a condition that cannot be fulfilled, "then the Mayor's Agent needs to be consulted in the appropriate forum and asked to waive or remove the condition that could not be met."

Summary of Specific Motions and Dispositions Thereof:

  • Petitioners: Petition for Reconsideration of Modified Decision and Order ( Granted ) Or, In the Alternative, For a Stay Pending Judicial Review ( Denied )
  • Petitioners: Motion of Party Opponents to Terminate All Proceedings for Lack of Jurisdiction and Opposition to Applicant's Motion to Reinstate the May 20, 2004 Order ( Denied )
  • Applicant: Motion to Reopen Record ( Granted ), Deny Opponents' Motion for Reconsideration of Modified Decision and Order, and Reinstate the May 20, 2004 Order ( Denied ) Or, In the Alternative, Motion to Limit Hearing to Whether Opponents Have a Right to Participate in a Delegated Administrative Review Process ( Denied )

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  • HPA Number: 03-480, 03-481
  • Case Name: In Re Darrin Phillips, et al.
  • Location of Property: 1515 and 1517 32nd Street, N.W., Square 1270, Lots 74 and 75
  • Date of Decision: 09/24/2004
  • Type of Case/Type of Permit Sought: Second Modified Decision and Order
  • Disposition: Granted

Summary: The issue before the Mayor's Agent was to determine whether the Applicant had complied with the Condition set forth in the Original Order. The Mayor's Agent made findings of fact, including: 1) that the trees and proposed sidewalk which were the subject of the Condition were located/to be located in public space adjacent to the Subject Property; 2) that it was unknown whether a sidewalk had ever been located adjacent to the Subject Property; 3) that, even had there at one time been a sidewalk on the public space adjacent to the Subject Property, it was not within the Mayor's Agent's jurisdiction to require its reconstruction; 4) that, among other reasons, the nature of the root system of the trees made it impossible to construct the sidewalk on public space while preserving the trees, thus, if any sidewalk were to be constructed, it would have to be a sidewalk on private property, which would be highly unusual, and that many issues, including liability, insurance, and maintenance, arise from the construction of a public sidewalk on private property; 5) the Applicant had made a good faith effort to comply with the Condition; and 6) that preserving the trees rather than building a sidewalk was the desirable solution. The Mayor's Agent noted that the HPRB staff had determined that fulfillment of the Condition in its entirety was impossible and had placed more importance on retention of the existing trees than on construction of a sidewalk, and found that, "If a condition is an impossibility, and an applicant makes a good faith effort to satisfy that condition, particularly with the assistance and input from the appropriate governmental body, that applicant should be found to have satisfied the condition." The Mayor's Agent determined that neither the Petitioners nor the ANC had met their burden of proving that the proposed new construction, as modified to reflect saving the trees, was incompatible with the Historic District or Historic Landmark and that the Applicant had satisfactorily complied with the Condition; thus, the Mayor's Agent approved the revised site plan and ordered the HPRB to approve the relevant applications.

Mayor's Agent - Procedural:

  • The Mayor's Agent accorded great weight to the position of the ANC, pursuant to D.C. Code Ann. § 1-261(d).
  • The Mayor's Agent delineated the scope of his jurisdiction: "The only applications over which the Mayor's Agent has jurisdiction under the Act, are for applications on construction on private property. . . Under D.C. Code § 5-1007(f), for an application for a permit for construction on private property, the standard is described in the following manner: '[c]ompatibility with the historic district or landmark is thus the sole statutory criterion for determining whether new construction shall be authorized.'"
  • The Mayor's Agent stated that "[c]onsistent with the testimony of the Office of the Attorney General, the Mayor's Agent can change an Order and modify a condition of an Order."
  • The Mayor's Agent asserted that the burden of proof of incompatibility of proposed new construction with the relevant Historic District or Historic Landmark rests on the parties in opposition.
  • The Mayor's Agent noted that, in the future, hearings to determine whether a condition of an order had been fulfilled were not mandatory "where final resolution of such a condition has been solely delegated to an applicant and District of Columbia governmental body."

Compatibility:

The Mayor's Agent noted that within the Historic District, there were streets with sidewalks and trees in public space and other streets with no sidewalks or trees in public space. "However, sidewalks on private property are not part of the character of the Historic District, and are not mandatory to make a project compatible with the Historic District."

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Title: HPA No. 03-480, 481 (In re. Darrin Phillips, et al.)
Author: Government of the District of Columbia. Office of Planning. Historic Preservation Office
Permanent Link: http://hdl.handle.net/10822/761616
Date Created: 2003
Subject: Mayor's Agent: D.C. Administrative Procedure Act; Compatibility


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