HPA No. 2007-132 (In re. Aarno and Claire Liuksila Residence)

HPA Number: 2007-132
Case Name: In Re: Application for underground addition; In the Matter of: 3259 P Street, NW, Washington, D.C. 20007 (Square 1255, Lot 217)
Building Name: None
Location of Property: 3259 P Street, NW
Date of Decision: 10/23/2007
Type of Case/Type of Permit Sought: Alteration
Disposition: Approved

Summary of Decision:

Aarno and Claire Liuksila (the " Applicants ") sought a construction permit for an underground addition to their single-family home, a building which contributes to the character of the Old Georgetown Historic District (the " Historic District "), a National Historic Landmark District and a historic district formally designated by the District of Columbia and listed within the District of Columbia Inventory of Historic Sites. The Applicants planned a 1,425 square feet addition to their home, of which 1,200 square feet would be below grade and 225 square feet would be on grade alterations in the existing garage (which was not being used for storage of motor vehicles). None of the renovations would be visible from the public space. The plans included an excavation of approximately 40% of the existing narrow, partial basement and crawl spaces and lowering the floor in the original basement and crawl spaces in order to create space for a personal library. In addition, the Applicants planned to convert a bricked over rear yard to a landscaped green space with pyramidal sky lights to allow light into the underground addition. They also intended to replace the existing garage doors with permanent, non-opening French doors and cut a new door opening into the garage wall. The plans would necessitate removing one of two mature Magnolia trees on the Applicants' property. The Mayor's Agent explained that his jurisdiction was limited to the effect of the alteration upon the current topography associated with the contributing building and concluded that there would be no adverse impact on the visible or landscaped character of the site. The Mayor's Agent therefore concluded that the alteration was necessary in the public interest because it was consistent with the purposes of the Historic Landmark and Historic District Protection Act of 1978 (the "*Act*"), in that it would retain and enhance the historic property while compatibly altering it to serve current uses. Accordingly, the Mayor's Agent granted the application.

Mayor's Agent - Procedural:

"The standard of review of a permit application for an alteration to be approved under D.C. Official Code § 6-1105(f) requires that no permit for alteration subject to this subchapter shall be issued unless the Mayor finds that such issuance is necessary in the public interest, or that a failure to issue a permit will result in unreasonable economic hardship to the owner."

"The Applicant bears the burden of proof to establish that the proposed alteration is necessary in the public interest and consistent with the purposes of the Act."

The Mayor's Agent had "several concerns about precedent, and what implications an approval might convey for future applications for approval to conduct underground excavations and constructions of below surface rooms." However, the Mayor's Agent further stated that "his jurisdiction is defined by and limited to potential changes in topographical situations, i.e., what effect, if any, will a requested change, via an application for alteration, make upon the current topography as it relates to the open space associated with the historic landmark, or contributing building located in an historic district." The Mayor's Agent noted that other issues "may have major impact and ultimately be determinative of whether the project will ever be realized," including environmental impact and the potential for "catacombmization" of the city, but stated that such issues "are beyond the Mayor's Agent's jurisdiction."

"The Mayor's Agent is unaware of any law, regulations or policy which addresses the issue of subterranean construction."

"It is not the role of the Mayor's Agent to address the issue of 'practicality' [of the project], if the legal components that are within his statutory jurisdiction are addressed, satisfied, and within the intent of the preservation law."

The Mayor's Agent noted that he took into consideration the opposition of the U.S. Commission of Fine Arts (the " CFA ") and the Old Georgetown Board (the " OGB "). The Mayor's Agent also noted that the D.C. Historic Preservation Office issued a letter addressed to Advisory Neighborhood Commission 2E (the " ANC ") formally notifying the ANC of the pendency of the application, but there was no response from the ANC.

The Mayor's Agent noted that the Applicants' project might be considered new construction guided by D.C. Code § 6-1107, but that the application was being processed as an alteration to an existing structure.

Necessary in the Public Interest:

The Mayor's Agent found that the proposed underground addition was necessary in the public interest as consistent with the purposes of the Act.

Consistent with the Purposes of the Act:

Citing D.C. Code § 6-1101(b), the Mayor's Agent stated that for properties contributing to the character of historic districts, the purposes of the Act are "to retain and enhance those properties which contribute to the character of the historic district and encourage their adaptation for current use" and "to assure that alterations of existing structures are compatible with the character of the historic district." The Mayor's Agent concluded that "approval of the [Applicants'] application for excavation and subterranean expansion is necessary in the public interest because it is consistent with the purposes of the Act." The Mayor's Agent further found that the proposed alteration was consistent with the purposes of the Act "in that issuance of a permit would retain and enhance this historic property while compatibly altering it to serve current uses."

Underground Additions:

In determining that the proposed underground alteration was consistent with the purposes of the Act, the Mayor's Agent noted that he "had several concerns about precedent, and what implications an approval might convey for future applications for approval to construct underground excavations and constructions of below surface rooms, primarily for residential uses." However, he explained that his jurisdiction was limited to "potential changes in topographical situations" and stated that the question presented was "whether the effect of the proposed alteration construction will topographically compromise what has been designated as a part of the Historic District." The Mayor's Agent concluded that other than the removal of one mature Magnolia tree, assuming the Applicants fully adhered to the construction plans, there would be no change in the topography. The new room would be beneath the existing driveway and garage, and the bricked patio would be converted to green space. Therefore, there would be "no adverse impact on the visible or landscaped character of the site." Further, the Mayor's Agent concluded that he was "not convinced that there is a currently sustainable legal argument that could deny this application and project, given the silence in current laws, regulations and policies governing subterranean residential construction in historic districts, particularly when the topography will be undisturbed, and the end product is likewise not visible from the public space." The Mayor's Agent warned, however, that "[g]reat care must be taken to assure that only state of the art drainage systems are employed," as construction could lead to a continuing water problem that would be dangerous to adjacent buildings. Furthermore, he noted that issues such as environmental impact, zoning, and the potential for "catacombmization" of the residential city may have major impact on the project and indicated that zoning authorities and the Council of the District of Columbia should weigh in on these issues. He suggested that many questions will surface about how to approach the issue of underground residential space as more people move into the city and the need to re-adapt living spaces increases.

Trees:

In order to accommodate the proposed addition, the Applicants planned to remove one of two mature Magnolia trees on the property. The CFA's and the OGB's opposition was due in part to the loss of this tree. The Mayor's Agent concluded that neither entity had presented a "sustainable legal argument." He did note a "real concern" regarding the project's impact on the roots of the remaining mature Magnolia tree, but found that "the record is unclear and conflicted about how close the root ball of the tree is to the area to be excavated." The Mayor's Agent ultimately stated that the Applicants should take precautions to save the mature Magnolia tree that would remain on the property, "as an applicant who is in a position to financially underwrite such an ambitious residential construction" should also be in a position to "employ state of the art procedures to assure the survival" of the mature tree.

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