HPA No. 2013-600 (In re. Lisa Foster and Alan Bersin Residence)

HPA Number: 2013-600
Case Name: In the Matter of: Lisa Foster and Alan Bersin
Location of Property: 2422 Tracy Place NW; Square 2505, Lot 47
Date of Decision: August 29, 2014
Type of Case/Type of Permit Sought: Alteration
Disposition: Denied
Subject Matter(s): Residential; Alteration; Compatible; Economic Hardship – Generally; Mayor's Agent - Procedural

Summary of Decision:

Lisa Foster and Alan Bersin (the "Applicants") purchased a 1923 Wardman-style home in the Sheridan-Kalorama Historic District. They sought an after-the-fact permit to allow the replacement of part of the slate roof with fiberglass shingles. Before the District of Columbia Department of Consumer and Regulatory Affairs issued a stop work order, the Applicants' contractor had replaced slate tiles with fiberglass shingles without obtaining a permit. When the Applicants sought a permit after the fact, the Historic Preservation Office ("HPO") cleared an application to install fiberglass shingles on the rear but would not support fiberglass shingles on the street-facing portions of the house. HPO Staff Report stated that the fiberglass shingles "do not meet with test of compatibility discussed in the Board's guidelines, as they do not replicate the visual qualities of real slate in size, color, finish, or configuration." HPO thought the fiberglass shingles were darker, thinner, and smoother than the slate. HPO suggested use of a less-expensive synthetic slate instead of fiberglass. The Historic Preservation Review Board adopted the HPO recommendation, rejecting use of fiberglass shingles.

The Applicants appealed to the Mayor's Agent. The Mayor's Agent deferred to the HPRB's expertise on what is considered compatible, rejected the Applicants' defense that they were ignorant of the law, and denied the permit

Compatible:

The Applicants argued that the fiberglass shingles were compatible with the historic district. However, the HPO testified that the other examples cited by the Applicants were either installed before the creation of the district or were installed illegally. The Mayor's Agent deferred to the HPRB's expertise on questions of style and material compatibility because, citing a previous Mayor's Agent case: "members of the HPRB are chosen for their expertise and interest in historic preservation and are confirmed by the District of Columbia Council." In contrast, the Mayor's Agent is a neutral figure who applies the law to protect the individual and public rights recognized in the law. See 2225 California Street, NW , H.P.A. No. 11-472 (Feb. 13, 2013).

Economic Hardship – Generally:

The Applicants, who would have to pay approximately $6,000 to replace the fiberglass with slate, argued that requiring replacement at this junction would be an additional expense. The Mayor's Agent concluded that the "failure to seek a permit cannot justify a post hoc argument for the use of inappropriate design or materials."

Mayor's Agent – Procedural:

The Mayor's Agent rejected the Applicants' defense that they had no actual knowledge of the historic preservation requirements. Ignorance of the law is no excuse because such a defense would undermine compliance with the preservation regime. See, e.g., In the Matter of Barbara J. Bedford , H.P.A. No. 00-564 (August 8, 2003). Moreover, no personal notice from the government of individualized statutory and regulatory requirements is constitutionally required. The Mayor's Agent also noted the Applicants received circumstantial personal notice—they knew at purchase their house was subject to a conservation easement--that should have made them inquire further about the preservation restrictions.

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