HPA No. 2011-400 (In re. Robert and Sofia Bassman Residence)

HPA Number: 2011-400
Case Name: In the Matter of: Application of Robert and Sofia Bassman
Location of Property: 3414 29th Street, NW; Square 2070, Lot 41
Date of Decision: May 22, 2012
Type of Case/Type of Permit Sought: Construction (after the fact)
Disposition: Denied
Subject Matter(s): Residential; Historical District - Contributing Building; Mayor's Agent - Procedural

Summary of Decision:

Robert and Sofia Bassman (the "Applicants" ) own a single family home that is a contributing building in the Cleveland Park Historic District. At the time of purchase, a six-foot-tall chain link fence already faced the 29th Street front of the house. In 2011, the Applicants hired a contractor to remove the old chain link fence and replace it with a six-foot, black, aluminum picket fence. This fence is located on private property, although most front yard fences in Cleveland Park are located on public property. Neither the contractor nor the Applicants sought or obtained a permit. After an inspection from the Department of Consumer and Regulatory Affairs, the Applicants sought a permit for the already constructed new fence. The Historic Preservation Office ("HPO" ) Staff Report recommended that the applicant be limited to a 42-inch fence in order to be consistent with the established character of the historic district, a finding consistent with the preference of the local Advisory Neighborhood Commission ("ANC" ). The Historic Preservation Review Board ("HPRB" ) distinguished the few other tall fences in the neighborhood as facing side yards rather than front yards and unanimously adopted the Staff Report.

In its appeal to the Mayor's Agent, Applicants argued that the fence has already been constructed and looks fine. Moreover, since the fence is on private property, it is not limited by the public space regulations on fence heights that result in the 42 inch and lower fence heights typical in the historic district. The Mayor's Agent found no basis to disagree with the HPO and HPRB, who are "entrusted with providing expert advice on such matters." The Mayor's Agent found that the HPO and HPRB reasonably concluded that shorter fences or no fences characterize the Cleveland Park Historic District""regardless of any public space height restrictions""and could not accept the Applicants' lack of knowledge defense (for failing to request a permit) "without undermining a crucial lynchpin in the protection of our historic districts." Allowing a permit in this case would set a "destructive precedent." Thus, the Mayor's Agent denied the permit request and gave the Applicants the option of either removing the fence or obtaining permit approval for a shorter fence within 60 days.

Mayor's Agent - Procedural:

The Mayor's Agent cited an analogous case to justify rejecting the Applicants' lack of knowledge defense. "Accepting a lack of knowledge defense, as posed by the Applicant, would encourage other property owners to attempt to circumvent not only these "¦ requirements and then use this defense if caught in violation, but would also lead to area-wide disobedience of laws that were adopted for legitimate reasons." In the Matter of Barbara J. Bedford, HPA 00-564, at 6 (Aug. 8, 2003).

Historical District - Contributing Building:

In denying the permit for a six-foot tall fence, the Mayor's Agent concluded that it "matters not that other fences [in the historic district] are bound by public space height restrictions if short fences are character-defining for the Historic District." The Mayor's Agent agreed with the evidence that fences 42 inches and under were character-defining for the Cleveland Park Historic District. That this fence was built on private property and thus not limited by the public height restriction, is irrelevant for purposes of determining compatibility under the District of Columbia Historic Landmark and Historic District Protection Act.

Subsequent History:

The Mayor's Agent's decision was upheld by the District of Columbia Court of Appeals. See Bassman v. D.C. Mayor's Agent for Historic Preservation , No. 12-AA-921 (D.C. Ct. App. March 13, 2014)(unpublished opinion).

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