HPA No. 2006-062 (In re. Parking Pad on Public Space)

• HPA Number: 2006-062
• Case Name: In the Matter of Application for Parking Pad on Public Space
• Location of Property: 1900 8th St., N.W.
• Date of Decision: 8/21/06
• Type of Case/Type of Permit Sought: Construction permit (to allow paving across the public space to create a parking pad)
• Disposition: Denied
• Date of Case Summary: 5/7/07

Summary of Decision:

Don B. Terry (the "Applicant"), the owner of a house located at 1900 Eighth Street, N.W. in the U Street Historic District, submitted an application for paving public space for a parking pad to be located immediately adjacent to his house. The Applicant filed this application after having installed the parking pad in August, 2005, without having obtained a permit. The Historic Preservation Review Board (the "Board") denied the application on the grounds that "... parking or access through public space in the Victorian-era row house neighborhood such as U Street, [is] inconsistent with the character of [the] historic district." The Mayor's Agent, in turn, denied the application concluding that the proposed installation of a parking pad would be inconsistent with the Comprehensive Plan of the District of Columbia,[1] the recited purposes of the Historic District Protection Act of 1978 (the "Act"), and the recited purposes and basis for the DCRA/DOT jointly created Public Space Committee.

Mayor's Agent - Procedural:

• Pursuant to D.C. Official Code (the "Code"), § 1-309.10(d), "the Mayor's Agent must give great weight to, but is not bound by," the recommendation of the Advisory Neighborhood Commission with regard to applications of this type. In this case, the applicable ANC was notified, but did not testify or file any documents with the Mayor's Agent stating a position regarding this application.

• Under the Code, the burden of proof is on an applicant requesting a favorable ruling from the Mayor's Agent. § 2-509(b)

Consistent with the Purposes of the Act:

The Applicant argued that 1) neighbors' houses enjoyed the benefit of on-site parking by virtue of parking pads on the fronts and sides of their properties, 2) there was a parking pad in place at the time of his purchase of his property and that he was "grandfathered" into exemptions from certain rules including the requirement to obtain a permit prior to any construction work on the parking site, and 3) he would suffer a significant financial hardship if he was required to remove the parking pad he had installed and restore the area to green space.

The Mayor's Agent was not persuaded by the Applicant's first argument, finding that with regard to neighbors' having parking pads adjacent to their houses, there was no evidence that these pads were constructed as a result of the neighbors' obtaining permits. According to the Mayor's Agent, the "fact that prior owners universally violated the law, even before the Historic District was created, by converting the public space to their own illegitimate use, does not justify nor serve as a legal defense or basis for the current owner/Applicant to be able to continue doing so at this time or in the future."

The Mayor's Agent dismissed the Applicant's second argument because the Applicant produced no law, regulation, policy or case to support his assertion that he was entitled to an exemption to permit requirements. The Mayor's Agent was not swayed by the Applicant's third argument, because the Applicant made a general assertion of economic hardship without presenting any documentation or evidence to support his claim.

Parking Pads/Curb Cuts:

The Mayor's Agent discussed at length that the Act expressly protects the landscape of historic districts, including stating that 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." Furthermore, the Mayor's agent found that "the negative effect of landscape diminution allows placing motor vehicles in the pubic green space immediately adjacent to residential property." To allow "unfettered vehicular access" to the statutorily designated set aside green space is "markedly inconsistent" with the purpose of the Act of bringing "some order and consistency to the architecture of historic districts." The Mayor's Agent concluded, therefore, that to allow the Applicant to place a parking pad in an area in which the Act favors landscaping would be inconsistent with the purposes of the Act.

Unreasonable Economic Hardship:

The Mayor's Agent dismissed Applicant's argument that he would suffer financial hardship if he was ordered to remove the parking pad, because the Applicant made a general assertion of economic hardship without presenting any documentation or evidence to support his claim.

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[1] The District of Columbia Comprehensive Plan Amendment Act of 1998, D.C. Law 12-275, (D.C. Reg. April 27, 1999) provides that "The landscaped green space on publicly owned, privately maintained front and side yards in Historic Districts and on Historic Landmarks should be preserved. Special care should be taken to protect these historic green areas from being paved over for vehicular access and parking."

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