*HPA Number: 2014-221, 2014-222
*Case Name: In the Matter of: 2228 MLK LLC and DC Department of Housing and Community Development
*Location of Property: 2234 and 2238 Martin Luther King Jr. Ave., SE; Square 5802, Lots 811 and 978; Square 5781, Lot 847
*Date of Decision: October 28, 2014
*Type of Case/Type of Permit Sought: Alteration (Move Houses); Subdivision
*Subject Matter(s): Alteration (moving a property); Mayor's Agent – General
*Summary of Decision:*
The District of Columbia Department of Housing and Community Development and its developer partner, 2228 MLK LLC, (together, the "Applicants") sought a permit to move two deteriorated historic houses and subdivide property in the Anacostia Historic District in order to construct a five story, "affordable" apartment building with ground floor retail.
The Applicants appeared before the Historic Preservation Review Board ("HPRB") twice, and the HPRB concluded that the proposal was not consistent with the purposes of the Act. Specifically, HPRB feared that moving the houses would destroy the integrity of the historic setting and that the massing and design elements of the proposed new building would not be compatible with the surrounding historic district.
At a hearing before the Mayor's Agent, the Applicants argued the moving of properties and subdivision was necessary to construct a project of special merit. While several preservation groups opposed the proposal, the Advisory Neighborhood Commission did not take a formal position. After reviewing substantial evidence from both opponents and supporters, the Mayor's Agent concluded that the demolition and subdivision were necessary to construct a project of special merit due to the project's creation of significant affordable housing and Class A retail.
*Mayor's Agent – General:*
*A decision as to whether a project is one of special merit is made by the Mayor's Agent, not the HPRB.
*Objections to a building's massing and design are outside the scope of the Mayor's Agent's review and are best left to HPRB review.
*Necessary in the Public Interest:*
The Mayor's Agent may grant a permit to alter contributing buildings or subdivide parcels in a historic district if the Mayor's Agent finds that such changes are "necessary in the public interest."
Moving a contributing house within a historic district is an alteration within the meaning of the District of Columbia Historic Landmark and Historic District Protection Act (the "Act"). D.C. Code § 6-1102 (1)(A).
*Special Merit – Balancing Test:*
Special merit determinations have three steps. First, the Mayor's Agent must decide whether the project meets the criteria of special merit as set out in the ordinance. Second, the Mayor Agent must balance the special merit of the project against the harm to the historic resource. Lastly, the Mayor's Agent must consider whether the loss to historic resources is "necessary" to "allow construction" of the project.
In this case, the evidence convinced the Mayor's Agent that the project would help address the scarcity of affordable housing and the lack of "Class A" retail space specifically in underserved Ward 8. A Department of Housing and Community Development study concluded that affordable housing would be the best use of the site. Testimony also highlighted the dearth of retail shopping in the area, meaning that residents must travel to other parts of the region for most shopping. Construction of the Class A space—none of which existed in Anacostia—would encourage national retailers to move to the area. The Mayor's Agent noted that consistency with the Comprehensive Plan may provide a basis for a project's special merit.
In weighing the public benefits against the loss to historic resources, the Mayor's Agent found the losses to be real but not great. The houses will not be demolished, only relocated to vacant lots within the historic district and, importantly, restored. Significantly, the Mayor's Agent highlighted that no one presented evidence of any economically feasible project that would keep the historic houses on their site as single family residences.
In addition, the Mayor's Agent concluded that the project could not be built without the relocation and subdivision. If the two houses remained in their current position, fewer affordable units and less retail space could be built. The applicants also presented uncontroverted testimony that they could move forward rapidly to complete the project.
*Special Merit – Community Services:*
The Mayor's Agent noted that an affordable housing project cannot be considered a project of special merit per se, but a well -designed and financed project such as this one on publicly-owned land that addresses the need for affordable housing and significant retail presumptively creates "benefits having a high priority for community services." While benefits common to many developments cannot be considered special within the meaning of the Act, the Mayor's Agent distinguished cases dealing with luxury housing developments and reasoned that the creation of 114 units of affordable housing especially in Anacostia is anything but a common occurrence. Moreover, it will serve to "galvanize" and have a "catalytic" effect on other affordable housing and Class A office space in the area.