DC Historic Preservation - Subject Matter Summaries

Contents

I. Adaptation for Use

The Historic Preservation Features Element of the District of Columbia�s Comprehensive Plan recognizes that historic preservation is not "aimed at creating a lifeless and static historical environment" and that "historic properties are living assets that were built for use." 1 The Plan continues: "The goal is to encourage vitality by continuing to use and adapt historic properties for modern needs and attract the necessary financial investment to support these goals." 2 Every person seeking to demolish, rebuild, or otherwise alter an historic structure is attempting to adapt the structure for his or her current use. The key is that such adaptation must be consistent with the Historic Landmark and Historic District Protection Act of 1978 (DC Code � 6-1100 et. seq.).

The District of Columbia�s Comprehensive Plan favors "Maintain[ing] historic properties in their original use to the greatest extent possible," but acknowledges that if this is no longer feasible, appropriate adaptive uses should be "consistent with the character of the property." 3 When landmarked or contributing buildings 4 are adapted for a new use, care must be taken to protect essential elements. The Secretary of the Interior�s Standards for Rehabilitation, which provides widely followed guidance in DC 5 and other states for adapting historic properties, states: "The removal of distinctive materials or alteration of features, spaces, and spatial relationships that characterize a property will be avoided." 6

If a property owner seeks to alter a contributing property in an historic district so as to adapt it for current use, the Mayor�s Agent can only approve a permit for alteration or demolition if "such issuance is necessary in the public interest." 7 The D.C. Code defines "necessary in the public interest" as "consistent with the purposes of this subchapter as set forth in � 6-1101(b)...." 8 With respect adapting properties in historic districts, the purposes are summarized with the following:

"(A) To retain and enhance those properties which contribute to the character of the historic district and to encourage their adaptation for current use;

(B) To assure that alterations of existing structures are compatible with the character of the historic district�" 9

The key case governing adaptation for use is Gondelman v. D.C. Department of Consumer and Regulatory Affairs. 10 In this case, the applicant sought approval for a curb cut, excavation of front yard berm and installation of driveway, and a new garage located beneath the existing front porch of this contributing rowhouse in the Kalorama Historic District. 11 The Historic Preservation Review Board voted against the proposal and the Mayor�s Agent denied the necessary permit. On appeal to the D.C. Court of Appeals, the court concluded:

"The petitioners� burden under �� 6-1105 (f) is a heavy one. They must demonstrate that the issuance of a preliminary permit for their proposed alterations is �necessary in the public interest.� To demonstrate necessity in the public interest, they must meet two statutory requirements. First, under �� 6-1101 (b)(1)(A), they must establish that their proposed alterations �retain and enhance ... [historic] properties [in a manner] which contributes to the character of the historic district and [which] encourages the adaptation [of historic properties] for current use.� Id. (emphasis added). Under this subsection it is insufficient to emphasize only enhancement to adapt a property for current use. Rather, the applicant must also demonstrate that the proposed alterations will retain and enhance the historic property so that it contributes to the character of the historical district." 12

In Gondelman, the proposed alterations to the rowhouse and the site (the landscaped berm) would not have contributed to the character of the historic district and, upon the the HPRB staff report, the recommendation of the HPRB to the Mayor�s Agent, the Mayor�s Agent�s analysis, expert testimony before the HPRB, and a letter from the Historic Committee of the Kalorama Citizens Association�all "entities regarded as having expertise in the area of historic preservation and historic districts"�would have in fact detracted from it. 13

If an adaptation would otherwise not be "consistent with the purposes of the Act," the Mayor�s Agent can still approve if the adaptation is a project of special merit. 14 In some very specific and very limited instances, the Act specifies that the public interest in adapting public safety facilities such as firehouses to current operational needs trumps the interest in historic preservation. 15 In two separate firehouse cases, Engine Company No. 28, HPA No. 12-044 (April 3, 2012); Engine Company No. 29, HPA No. 12-044 (May 2, 2012), the Mayor�s Agent approved the D.C. Department of Fire and Emergency Services� plans to enlarge the engine bay doors of the firehouses so as to allow the entrance and exit of newer firefighting equipment. Noting that "there is historic preservation value in adapting the historic firehouses to continue serving their intended use, at least up to some point at which alterations to the exterior would become too damaging to the historic features," the Mayor�s Agent concluded that the Fire Department had satisfied the balancing test and the renovations constituted projects of special merit. 16

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1 10 DCMR 1000.12.
2 Id.
3 10 DCMR 1011.7.
4 As defined at 10 DCMR 9901.
5 10 DCMR 2003.
6 Engine Company No. 29, HPA No. 12-044 (May 12, 2012) at 4.
7 D.C. Code �6-1105(f).
8 D.C. Code �6-1102(10).
9 D.C. Code �6-1101(b)(1).
10 Gondelman v. D.C. Dep�t of Consumer & Regulatory Affairs, 789 A.2d 1238, 1239 (D.C. 2002).
11 Id. at 1240.
12 Gondelman, 789 A.2d at 1246.
13 Id. at 1247.
14 D.C. Code �� 6-1105(f) and 6-1102(a)(10).
15 � 6-1108.1(g) ("In considering a claim of special merit, substantial rehabilitation or new construction for operational needs of a public safety facility shall constitute a public interest having significantly higher priority than that of historic preservation.").
16 HPA No. 12-044 at 3, 4.

II. Alteration (Moving a Property)

Moving a contributing building within a historic district is considered an "alteration" within the meaning of the District of Columbia Historic Landmark and Historic District Protection Act of 1978 ("the Act"). 1 If the Mayor�s Agent finds that moving a contributing building or subdividing parcels in a historic district is "necessary in the public interest," the Mayor�s Agent may approve the permit. 2 For a proposed action to be considered "necessary in the public interest," it must be "consistent with the purposes of this act as set forth in section 2(b) or necessary to allow the construction of a project of special merit." 3

Moving contributing buildings in a historic district eliminates their integrity of location. 4 Consequently, the Historic Preservation Office and the Historic Preservation Review Board ("HPRB") generally disfavor the practice. However, the HPRB and Mayor�s Agent have on rare occasion approved relocation as consistent with the purposes of the Act or as part of a project of special merit. In the Matter of: 2228 MLK LLC (the Big K), HPA Nos. 14-221 and 14-222, the Mayor�s Agent approved the relocation of two neglected but contributing buildings to the Anacostia Historic District as part of a larger project of special merit. 5 In his discussion, the Mayor�s Agent quoted from testimony from the State Historic Preservation Officer concerning when relocation of a property was allowed:

"Most of these cases involved buildings that were isolated by demolition on sites large enough for redevelopment, typically on major streets, or at the edge of a historic district. In most cases, the buildings had been shifted to a corner of the development site, but some had moved offsite when there has been a suitable location�.The success of these examples has depended in large part on ensuring that the historic buildings remain in a setting of appropriate scale and character, similar to their original context." 6

With this context in mind, the Mayor�s Agent concluded that the proposed relocation of the two Anacostia homes was similar to those examples and achieved a preservation goal because the homes�then in dilapidated condition on a major boulevard on the border of the historic district--were currently unsuitable for residential use. 7 The proposed new location within the historic district for the homes would better reflect their residential nature, and would serve as an improvement as against being "isolated among commercial uses and vacant lots on the main avenue in their neighborhood" or awkwardly incorporated into a larger commercial development. 8 Moreover, moving the houses was deemed "necessary" to construct the project of special merit.

Thus, as the State Historic Preservation Officer summarized in the 2228 MLK LLC case, "relocation of historic buildings may not be common or a recommended preservation treatment, but it... has sometimes been used as a practical and acceptable compromise when other options have not proved workable." 9

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1 D.C. Code �6-1102 (1)(A).
2 Id. �� 6-1105(f), 6-1106(e)
3 Id. � 6-1102(10).
4 See In the Matter of: 2228 MLK LLC (the Big K), HPA Nos. 14-221 and 14-222 (Oct. 28, 2014) at 7.
5 Id. at 10.
6 Id. at 8.
7 Id.
8 Id.
9 Id.

III. Alteration (Including Addition)

The Historic Landmark and Historic District Protection Act of 1978 (the "Act") allows limited alterations or additions to a landmark or a contributimg building in a historic district. 1 Alterations or additions require a permit issued by the Mayor, on the advice of the Historic Preservation Review Board ("HPRB"). 2

The District of Columbia Code defines the term "alteration" as "a change in the exterior appearance of a building or structure or its site, not covered by the definition of demolition" that requires a permit. 3 Even relatively minor projects such as window replacement can fall under this definition. The term encompasses any change to "interior space which has been specifically designated as a historic landmark." 4

Generally speaking, the Act, Mayor�s Agent, and court decisions support a continuum of protection, with alterations to landmarks given strict scrutiny, and alterations to contributing buildings within historic districts given slightly more leeway. The basis for this distinction lies in the text of the Act itself. For contributing structures within historic districts, two of the purposes of the Act include "encourag[ing] their adaptation for current use" and assuring "that alterations of existing structures are compatible with the character of the historic district." 5

The twin purposes of the Act for alterations to landmarks, on the other hand, do not mention "compatibility" per se: i.e., they must "retain and enhance historic landmarks�[and] encourage their adaptation for current use" 6 as well as "� encourage the restoration of historic landmarks." 7 It was obvious that not much in the way of alterations or additions was contemplated for landmark structures.

The Mayor will deny an alteration permit 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." 8 For an alteration to be considered "necessary in the public interest," the project must be either "consistent with the purposes of [the Historic Preservation Act] as set forth in � 6-1101(b)" or "necessary to allow the construction of a project of special merit." In a case involving the Cappucino Food Building in the Georgetown Historic District, the Mayor�s Agent rejected an after-the-fact alteration permit because the replacement of windows and wood storefront features with metal features failed to "retain and enhance those properties which contribute to the character of the historic district," and did not "assure that the alteration of existing structure [was] compatible with the character of this historic district." 9

Note that with respect to alterations to contributing buildings, they must both "retain and enhance" AND "contribute to the character of the historic district." 10 Thus in Gondelman v. D.C. Dep�t of Consumer & Regulatory Affairs where the owners argued that it was enough that their new garage would adapt their contributing building to today�s car-centric world, the court said,

"First, under �� 6-1101 (b)(1)(A), they must establish that their proposed alterations "retain and enhance ... [historic] properties [in a manner] which contributes to the character of the historic district and [which] encourages the adaptation [of historic properties] for current use." Id. (emphasis added). Under this subsection it is insufficient to emphasize only enhancement to adapt a property for current use. Rather, the applicant must also demonstrate that the proposed alterations will retain and enhance the historic property so that it contributes to the character of the historical district." 11

The Comprehensive Plan acknowledges that additions to historic structures "should achieve harmony with the historic surroundings through basic good design and close attention to the characteristics and design principles of the historic environment" and not simply "mimic historic buildings." 12 According to D.C. regulations, the removal of historically valuable material or distinctive architectural features is discouraged; any alterations or new construction should be "in scale with and respect historic context through sensitive siting and design and the appropriate use of materials and architectural detail" reflecting the height, scale, materials, color, texture, and character of the historic property. 13 The Mayor�s Agent enjoys great discretion in making the compatibility determination and can rely on a variety of extrinsic factors. Increasingly, the Mayor�s Agent will defer to the HPRB�s expertise on questions concerning how the various elements mentioned above impact compatibility. 14

Over time, what has been considered an allowable alteration has changed. For example, since the 1990s, fa�adism�the preservation of just the fa�ade of a building�has fallen out of favor as a preservation method, and it is highly unlikely that early Mayor�s Agent cases dealing with fa�adism, especially the Rhodes Tavern case, 15 would be decided the same way today. Indeed, under current thinking, more than mere fa�ade preservation is needed to obtain the exemption under special merit. 16 In the St. Patrick�s case, noted above, the Mayor�s Agent agreed with the HPRB that "the proposed demolition of the seven historic commercial buildings, even taking into account the retention and restoration of the fa�ades, is not �consistent with the purposes of the Act.�" 17

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1 See 10 DCMR 1011.3 ("The Act establishes that the test for alterations/additions and new construction is "compatibility with the character of the historic district.")
2 D.C. CODE ANN. �� 6-1105(b) & 6-1107(b).
3 D.C. CODE ANN. � 6-1102(1).
4 Id.
5 D.C. CODE ANN. �� 6-1101(b)(1)(A) & (B).
6 See Gondelman v. Dep�t of Consumer and Regulatory Affairs, 789 A.2d 1283, 1246-47 (D.C. 2002)
7 Id. at � 6-1101(b)(2).
8 D.C. CODE ANN. � 6-1105(f) (2002).
9 In the Matter of: the Application of El S. Elissawy to alter 1438 Wisconsin Avenue N.W., HPA No. 09-290 (Sept. 17, 2010) at 8 (quoting D.C. Code �� 6-1101(b)(1)(A)-(B)).
10 D.C. CODE ANN. � 6-1101 (b)(1)(A).
11 Gondelman v. D.C. Dep�t of Consumer & Regulatory Affairs, 789 A.2d 1238, 1245-46 (D.C. 2002).
12 10 DCMR 1011.4.
13 10 DCMR 1011.8.
14 See In the Matter of: Lisa Foster and Alan Bersin, HPA No. 13-600 (August 29, 2014) (The Mayor�s Agent deferred to the HPRB�s expertise on questions of style and material compatibility because "members of the HPRB are chosen for their expertise and interest in historic preservation and are confirmed by the District of Columbia Council.")(internal citation omitted). See also In the Matter of 1901 4th St. NW, HPA No. 14-566 (March 2, 2015) at 1 ("The Mayor�s Agent defers to expert judgements by the HPRB about compatibility." ).
15 In Application to raze 1429 F. Street, NW (Rhodes Tavern), HPA No. 80-41 (1979).
16 See In the Matter of the Archdiocese of Washington (St. Patrick�s), HPA Nos. 99-219, 220, 221, 222, 224, 225, 226, 285 (1999).
17 Id. at 14.

IV. Compatibility

Compatibility is a core concept in historic preservation. To keep a landmark structure or neighborhood vital and relevant in the modern world while retaining its historic character, the Historic Landmark and Historic District Protection Act of 1978 (the "Act") allows limited new development/alterations at a landmark or in a historic district so long as it deemed "compatible" with the character of the historic district. This accommodation for "compatible" construction, however, must be applied as consistently as possible so as to avoid arbitrary application of historic preservation law.

Generally speaking, the Act, Mayor's Agent, and court decisions support a continuum of protection, with alterations to landmarks given strict scrutiny and new construction within historic districts given slightly more leeway. The basis for this distinction lies in the text of the Act, itself. For contributing structures within historic districts, two of the purposes of the Act include "encourag[ing] their adaptation for current use" and assuring "that alterations of existing structures are compatible with the character of the historic district." 1 New construction in historic districts is similarly treated, as the Act seeks to "assure that new construction and subdivision of lots in an historic district are compatible with the character of the historic district." 2

The twin purposes of the Act for alterations to landmarks, on the other hand, do not mention "compatibility" per se: i.e., they must "retain and enhance historic landmarks in the District of Columbia� [and] encourage their adaptation for current use" 3 as well as "to encourage the restoration of historic landmarks." 4 It was obvious that not much in the way of alterations or new construction was contemplated for landmark structures.

Because of the difficulty in determining whether a proposed alteration or new construction fits within the term "compatible," the Historic Preservation Office ("HPO") has released guidelines for new construction in historic districts and additions to historic buildings. 5 The Guidelines for New Construction explain, "Compatibility is achieved through careful attention to the following design principles of building: setback, orientation, scale, proportion, rhythm, massing, height, materials, color, roof shape, details and ornamentation, [and] landscape features." 6 The Guidelines for Additions adds the consideration of "reversibility"--the ability to undo the change without damaging the original structure. 7 The Mayor�s Agent can also consider a development proposal�s adherence to the DC Comprehensive Plan when considering compatibility. 8

Importantly, the guidelines discourage "exact clone[s]" of historic buildings or styles, as this "creates a false sense of history." Instead, a compatible building should show a district�s evolution and remain in its own time. 9

One major issue with applying notions of compatibility is in the area of updating historic windows. The Historic Preservation Office and Commission on Fine Arts consistently find vinyl windows incompatible with historic districts because vinyl windows have a different finish from traditional wood and metal windows, and they also have profiles and dimensions of their constituent parts that differ from the originals. 10

Practically speaking, while alterations to landmarks or new construction that follow demolition are required to be compatible, the central issue in many of these cases is the demolition or partial demolition of a structure itself and not the compatibility of the alteration or new construction which will follow. For new construction in historic districts, compatibility can be the sole issue, unless a demolition permit is first requested. 11 Thus, few court decisions and Mayor�s Agent decisions turn solely on the issue of compatibility. While courts have commented on the standard used to judge compatibility in the context of alteration and new construction, 12 DC courts have never overruled a compatibility finding by the Mayor�s Agent.

Under DC law the Mayor�s Agent enjoys great discretion in making the compatibility determination and can rely on a variety of extrinsic factors. Increasingly, the Mayor�s Agent will defer to the HPRB�s expertise on questions of compatibility. In a case involving a rowhouse at 2422 Tracy Place NW, 13 the Applicants sought an after-the-fact permit to allow the replacement of part of the slate roof with fiberglass shingles. 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." 14 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.

In Gondelman v. DC Department of Consumer and Regulatory Affairs, the court upheld the Mayor�s Agent�s finding that the proposed addition of a curb cut, driveway, and garage disrupting the "berm" in front of the property was incompatible with the character of the historic district. This berm was a significant feature of the historic district and was part of the aesthetic sought by the original development at the turn of the century. The court upheld the Mayor�s Agent�s examination of the proposed alterations not only on the exterior appearance of the structure itself within the historic district but also of the history and the relationship of the entire site to the historic district around it.

In Reneau v. District of Columbia, the court upheld an incompatibility determination and ruled that the decision to consider all vistas affected by an alteration is within the discretion of the Mayor�s Agent. 15 However, alterations that cannot be seen from any public vista are therefore virtually per se compatible with the character of the historic district because they arguably have no impact on its character.

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1 D.C. CODE � 6-1101(b)(1)(A) & (B) (2014)
2 D.C. CODE � 6-1101(b)(1)(C) (2014)
3 See Gondelman v. Dep�t of Consumer and Regulatory Affairs, 789 A.2d 1243, 1245 (D.C. 2002)
4 D.C. CODE � 6-1101(b)(2) (2014)
5 For a full list of design guidelines, see http://planning.dc.gov/page/design-guidelines.
6 DISTRICT OF COLUMBIA HISTORIC PRESERVATION GUIDELINES: NEW CONSTRUCTION IN HISTORIC DISTRICTS, available at http://planning.dc.gov/node/594262 (last visited July 2, 2015).
7 DISTRICT OF COLUMBIA HISTORIC PRESERVATION GUIDELINES: ADDITIONS TO HISTORIC BUILDINGS available at http://planning.dc.gov/node/594362 (last visited July 2, 2015).
8 See supra note 3 at 1246-47.
9 Supra note 6 at 2.
10 See Application of Douglas McFadden, HPA No. 11-490 (August 20, 2012).
11 District Intown Properties, Ltd. v. DC Dep�t of Consumer and Regulatory Affairs, 680 A.2d 1373, 1375 (D.C. 1996) ("[� 6-1107] requires denial of [new construction] permits on the basis of ... incompatibility, standing alone.").
12 Gondelman v. Dep�t of Consumer and Regulatory Affairs, 789 A.2d 1283 (D.C. 2002); Reneau v. DC, 676 A.2d 913 (D.C. 1996); and Comm. for Washington�s Riverfront Parks v. Thompson, 451 A.2d 1177, 1195-96 (D.C. 1982).
13 In re Lisa Foster and Alan Bersin, HPA No. 13-600 (August 29, 2014).
14 See 2225 California Street, NW, H.P.A. No. 11-472 (Feb. 13, 2013); see 1922 Belmont Road, NW, H.P.A. No.14-18 (Dec.18, 2014).
15 676 A.2d 913. 915 (D.C. 1996).

V. Consistent with Purposes of the Act

For an alteration or demolition of a landmark or contributing building in a historic district to be considered "necessary in the public interest," and thus allowed, the project must be either "consistent with the purposes of [the District of Columbia Historic Landmark and Historic District Protection Act (the "Act") of 1978] as set forth in � 6-1101(b)" or "necessary to allow the construction of a project of special merit." 1

D.C. Code �6-1101(b) sets forth the purposes of historic preservation in the District:

"(1) With respect to properties in historic districts:
(A) To retain and enhance those properties which contribute to the character of the historic district and to encourage their adaptation for current use;
(B) To assure that alterations of existing structures are compatible with the character of the historic district; and
(C) To assure that new construction and subdivision of lots in an historic district are compatible with the character of the historic district;
(2) With respect to historic landmarks:
(A) To retain and enhance historic landmarks in the District of Columbia and to encourage their adaptation for current use; and
(B) To encourage the restoration of historic landmarks.
(3) With respect to archaeological sites designated as historic landmarks or contributing properties within historic districts:
(A) To protect historic and prehistoric archaeological sites from irreparable loss or destruction; and
(B) To encourage the retrieval of archaeological information and artifacts when the destruction of an archaeological site is necessary in the public interest."

Whether a proposed action is consistent with the Act thus "requires consideration of whether a demolition could be accomplished while maintaining the salient historic qualities of a building, so that it may be readily understood by present and future generations." 2 The Historic Preservation Review Board ("HBRP") makes a determination of consistency when it reviews an application referred to it. 3 If the HBRP finds the project to be inconsistent with the Act, the applicant can then appeal to the Mayor�s Agent. A number of cases have illuminated what can and cannot be considered consistent with the Act, and the Mayor�s Agent must grant substantial deference to the consistency findings of the HBRP. 4

In the old Italian Embassy case, HPA No. 06-171, the Mayor�s Agent determined that the proposed demolition of part of the landmark Beaux Arts structure was not consistent with the purposes of the Act. 5 As the HBRP is "the expert agency charged with reviewing proposed demolitions under the Act," the Mayor�s Agent decided to "defer to and adopt" the HPRB�s findings that the proposed demolition was not consistent with the purposes of the Act. 6 The project would have required demolition of significant exterior features of the existing building, including twin chimneys that were recognized as architecturally and historically significant by the D.C. Commission of Fine Arts. 7

In a case involving the adaptive reuse of the historic O Street Market, 8 the Mayor�s Agent approved the demolition of the west wall of the market and surrounding new construction to allow for a mixed-use project of special merit. 9 The applicant did not raise the issue of consistency with the Act at the Mayor�s Agent hearing, but the Mayor�s Agent concluded that the project nevertheless was consistent with the purposes of the Act because it would "retain, enhance, and restore a historic landmark for adaptive reuse." 10

Based on the text of the Act and its legislative history, it is extremely difficult for alterations and demolition to be approved as consistent with the Act at landmarked buildings and contributing buildings in a historic district. The Mayor�s Agent in the Italian Embassy case cited the legislative history of the Act to support the conclusion that the "�consistency� exception is limited to the demolition of non-contributing features or portions of a landmark." 11

If demolition of less than a significant part of a historic landmark "retains and enhances the landmark and encourages adaptation for current use," it can be consistent with the purposes of the Act. 12 In the Vigilant Firehouse case, HPA No. 95-33, the Mayor�s Agent found that demolition of the building�s external south wall and its restoration for the building�s use as a restaurant was consistent with the Act. 13 It should be noted that the Mayor�s Agent found the south wall no longer contributed to the historic landmark because of its deteriorated condition--the bricks comprising the wall would crumple in one�s hand. 14 Furthermore, the Mayor�s Agent concluded that the demolition of the south wall did not detract from the building�s other "salient historic qualities"�the roof, cupola and fa�ade�that still remained. 15

While demolition of a contributing building in a historic district is generally considered inconsistent with the purposes of the Act--because a major purpose is to "retain and enhance those properties which contribute to the character of the historic district and to encourage their adaptation for current use"--, the Mayor�s Agent has never directly decided whether the demolition of an entire contributing building in a historic district can ever be consistent with the Act. 16

Thus, applicants proposing alterations or partial demolition of either landmarks or contributing buildings face a heavy burden. 17 The Mayor�s Agent in a case involving the Webster School, HPA No. 00-462, explained why the narrow interpretation of consistency was necessary:

"To read the �consistency� exception as a broad license to demolish landmarks or buildings after the HPRB has granted them protection would be to assume that the Council meant to give landmark status with one hand (via the HPRB) and then to take away with the other (via the Mayor�s Agent). There is nothing in the text or history of the Act to support such a reading. The Council intended only a short list of three exceptions to justify and override its public policy and statutory enactment, which were both designed and adopted to retain historically significant structures." 18

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1 D.C. CODE � 6-1101(10) (2014)
2 In re Application Of Embassy Real Estate Holdings, LLC, HPA No. 06-171 (Aug. 29, 2006) at 24-5.
3 See D.C. CODE � 6-1103(c) (2014)
4 In Re Application of Washington Drama Society, Inc. (Arena Stage), HPA Nos. 02-471, 02-472, 02-515, S.L. 02-262 (Sept. 27, 2002)("[D]etermination by [the Historic Preservation Review Board] on a matter within its expertise [must be] accorded considerable deference.").
5 HPA No. 06-171 at 34.
6 Id. at 27 (citing Committee for Washington�s Riverfront Parks, 451 A.2d at 1194).
7 Id. at 21.
8 In Re Application of O Street Roadside, LLC, for Partial Demolition of 1400 Seventh Street, N.W. (The O Street Market)
9 Id. at 7.
10 Id.
11 HPA No. 06-171 at 25.
12 See D.C. Preservation League v. D.C. Dep�t of Consumer & Regulatory Affairs, 711 A.2d 1273, 1276 & n. 2 (D.C. App. 1998).
13 Backbay Restaurant Group (Vigilant Firehouse), HPA No. 95-33 (June 20, 1995) at 15.
14 See Id. at 5.
15 Id. at 14.
16 See 913 L St. NW, HPA Nos. 14-460 and 14-461 (Jan. 16, 2015) at 5 (quoting D.C. CODE � 6-1101(b)(1)(A) (2014))
17 See HPA No. 06-171 at 25.
18 Id. at 26 (quoting In re the Webster School, HPA 00-462. (Feb. 16, 2001)).

VI. Curb Cuts

Curb cuts allow homeowners to take a portion of the public space devoted to on-street parking to allow for their private driveways or off-street parking. The practice was commonly allowed into the 1980s until there were more historic districts, and it was more clearly seen to eliminate needed on-street parking, destroy green space, and jeopardize the character of older historic neighborhoods--few of which had off-street parking. Today both the Historic Preservation Review Board and the Old Georgetown Board strongly discourage the introduction of new curb cuts as they consider them generally incompatible with the character of pre-automobile historic districts. In very "unusual and rare circumstance[s]", the Mayor�s Agent has approved a curb cut but the prevailing norm is that curb cuts are not permitted. 1

In the leading alteration case of Matter of Gondelman, HPA No. 00-306 (Nov. 10, 2000), and the subsequent court case, Gondelman v. D.C. Department of Consumer & Regulatory Affairs, 789 A.2d 1238 (D.C. 2002), the Mayor�s Agent and then the court rejected as inconsistent with the Act a homeowner�s application to construct (i) a garage below the front porch of a house located in the pre-automobile Kalorama Triangle Historic District, (ii) a driveway cutting across the front yard, and (iii) a curb cut to access the driveway. 2 The proposed garage and driveway would have removed about 30% of the landscaped berm in front of the house. 3 The Mayor�s Agent concluded that the application would eliminate at least one on-street parking space and would reduce the front yard green space integral to the historic district. 4 Under the Act, the historic landscaping is "a component that needs to be specifically protected, enhanced, and perpetuated." 5 The Mayor�s Agent also feared the precedent that a curb cut would create, with other owners rushing to apply and further eliminating key features of the Historic District. 6 The Mayor�s Agent rejected the arguments put forward by the applicants that a curb cut would enhance the property and readapt it for use in today�s automobile-centric era. 7 The D.C. Court of Appeals upheld the Mayor�s Agent�s decision. 8 The court noted the petition�s burden "was a heavy one," and that "it was neither unreasonable nor legal error for the Mayor's Agent and the HPRB to reference the section of the District�s Comprehensive Plan which mandates that �landscaped green space on publicly owned, privately maintained front and side yards in historic districts and on historic landmarks should be preserved.�" 9

Curb cuts for new construction in an historic district are also generally not approved. In the Matter of Lowe, HPA No. 02-155 & 01-140 (June 17, 2003), the Mayor's Agent denied applications for a parking pad and curb cut on a former vacant lot in the Shaw Historic District because the request "would not only destroy green space, but is inconsistent with the Comprehensive Plan, the residential character of the Shaw Historic District, and the Act and governing regulations." 10 The Mayor�s Agent explained that "where curb cuts, driveways, and parking pads have been introduced, often illegally, it is a major intrusion on the streetscape of the historic district." 11

The Mayor�s Agent has approved a curb cut in an "unusual and rare circumstance." 12 In HPA No. 04-457, a homeowner of an end-unit rowhouse in the Georgetown Historic District applied for an alteration permit to install a curb-cut and one-car garage in a stone retaining wall along the side of his property. 13 The Mayor�s Agent approved the plan, which, after significant negotiation, was supported by the Historic Preservation Office, the local ANC, and the Old Georgetown Board. Several unique facts made this case distinguishable from Gondelman (HPA No. 00-306 and 789 A.2d 1238), and Lowe (HPA No. 02-155 & 01-140). Unlike those cases, the public space in Ledecky was already paved so there would be no loss of green space, a defining characteristic of Georgetown�s historic district. 14 In addition, the house had at one time contained a garage at the exact same proposed location. 15 Moreover, the Mayor�s Agent concluded that significant alterations had been made to the property over the years, including a change in street level "so that little, if any, of the street level�s original fabric appeared as it did in the mid- to late-nineteenth century." 16

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1 See In the Matter of Jonathan Ledecky, 1400 34th Street, NW, HPA No. 04-457 (December 15, 2004).
2 Matter of Gondelman, HPA No. 00-306 (Nov. 10, 2000) at 2.
3 Id.
4 Id. at 7
5 Id. at 8.
6 Id.
7 Id.
8 789 A.2d at 1247.
9 Id. at 1245-6.
10 Matter of Lowe, HPA No. 02-155 & 01-140 (June 17, 2003) at 11-12.
11 Id. at 15.
12 See In the Matter of Jonathan Ledecky, 1400 34th Street, NW, HPA No. 04-457 (December 15, 2004) at 4.
13 Id. at 2.
14 Id. at 6.
15 Id.
16 Id.

VII. Demolition

The District of Columbia�s current preservation law, the Historic Landmark and Historic District Protection Act of 1978 (the "Act") 1 arose largely in response to the demolition or proposed demolition of historically significant landmarks that accelerated in the construction boom following World War II. 2 The federal government�s interstate highway and urban renewal programs forever altered the landscape of D.C., particularly in Southwest, which saw entire neighborhoods removed. 3 The federal government�s plans to demolish the Old Post Office on Pennsylvania Avenue catalyzed citizen action groups and led to the creation of the first citywide preservation organization in 1971, "Don�t Tear It Down" which saved the landmark.

Existing laws at the time, both federal and local, did not adequately protect historic landmarks or neighborhoods from demolition. For instance, under the Shipstead-Luce Act, which Congress passed in the 1930s, the Commission on Fine Arts (CFA) had control over the design of private and public buildings adjacent to federal buildings, parks and other properties of great importance in Washington as far as they might "relate to height and appearance, color and texture of materials of exterior construction." 4 However, under Shipstead-Luce, the CFA could not prevent an owner from demolishing a building or and removing its front fa�ade. 5

Don�t Tear It Down�s grassroots efforts in the 1970s to save the Old Post Office, the Willard Hotel, and other historic properties increased the social and political acceptance of Washington�s burgeoning historic preservation movement. In 1973, the City Council implemented a required delay in demolition for historic properties. 6 The concept was that the delay would check speculative demolition and allow more time for preservationists to negotiate with developers about economically feasible ways to save historic properties. Preservationists realized that laws stronger than a mere delay in demolition provision were needed, as developers were free to demolish a building after the 180-day delay period had elapsed�which often happened.

Two events then changed the preservation playing field. First, Congress passed the Home Rule Act 7 in 1973 giving the District control over its own planning and preservation laws. Second, the Supreme Court in 1978 ruled in Penn Central v. New York, 8 its first historic preservation case, that New York City�s strong preservation law did not unconstitutionally deny a property owner a reasonable return on its investment when it landmarked Grand Central Station and denied the owner a permit to construct a 55-story office building on top of it. Tough local preservation laws had passed muster.

DC�s Act, which was modeled on the NY City preservation ordinance also was passed in 1978. It created serious structural obstacles to demolition. The Act and regulations define "Demolish or Demolition" as "The razing or destruction entirely or in significant part, of a building or structure, and includes the removal or destruction of any facade of a building or structure." 9 Under the previous delay in demolition regime, a presumption existed that demolition could occur so long as owners engaged in "meaningful discussions" during the 180-day moratorium. 10 The Act, however, creates a presumption against demolition unless the owner can show (1) "unreasonable economic hardship" , (2) that such demolition is "necessary in the public interest" or (3) that demolition is necessary for a project of "special merit." Demolition is defined in

1. Unreasonable Economic Hardship

Section 6-1102 of the D.C. Code states that a property owner suffers unreasonable economic hardship when "failure to issue a permit would amount to a taking of the owner�s property without just compensation." 12 The D.C. Council, when designing the economic hardship provision of the Act, incorporated the Constitutional "takings" standard set forth by the Supreme Court in the landmark Penn Central case, noted above. By closely following this standard the Act has successfully avoided constitutional takings claims.

The Act also contains a separate, somewhat more flexible economic hardship standard for low-income property owners. Under this provision, "low-income owners" suffer unreasonable economic hardship if, in the opinion of the Mayor, a permit denial imposes an "onerous and excessive financial burden" upon them. 13 This provision has never been the subject of a Mayor�s Agent decision.

In an economic hardship case, the applicant shoulders the burden of proving that there are no reasonable alternative economic uses for the property. The mere fact that historic preservation imposes significant costs or precludes more lucrative uses does not itself constitute an economic hardship justifying demolition. In 900 G Street Associates v. Department of Housing and Community Development, 14 the Mayor�s Agent denied a developer�s permit to demolish the Old Masonic Temple, an individually designated landmark, for failing to show that the denial would preclude any reasonable use of its property or return on its investment. 15 On appeal, the court rejected the applicant�s unreasonable economic hardship arguments, concluding that reasonable use of the property remained: "if there is a reasonable alternative economic use for the property after the imposition of the restriction on that property, there is no taking, and hence no unreasonable economic hardship to the owners, no matter how diminished the property may be in cash value and no matter if �higher� or �more beneficial� uses of the property have been proscribed." 16

See the separate issue summary "Unreasonable Economic Hardship" for additional context as to this point.

2. Necessary in the Public Interest

The Act defines the term "necessary in the public interest" as consistent with the purposes of the Act as established in � 6-1101(b) or necessary to allow the construction of a project of special merit. 17

Whether a proposed action is "consistent with the Act" "requires consideration of whether a demolition could be accomplished while maintaining the salient historic qualities of a building, so that it may be readily understood by present and future generations." 18 The Historic Preservation Review Board ("HBRP") makes a determination of consistency when it reviews a demolition application referred to it. If the HBRP finds the project to be inconsistent with the Act, the applicant can then appeal to the Mayor�s Agent. A number of cases have illuminated what can and cannot be considered "consistent with the Act." The Mayor�s Agent grants substantial deference to the consistency findings of the HBRP. 19

In the Old Italian Embassy case, HPA No. 06-171, the Mayor�s Agent determined that the proposed demolition of a portion of the landmark Beaux Arts structure was not consistent with the purposes of the Act. As the HBRP is "the expert agency charged with reviewing proposed demolitions under the Act," the Mayor�s Agent decided to "defer to and adopt" the HPRB�s findings that the proposed demolition was not consistent with the purposes of the Act. 20 The project would have required demolition of significant exterior features of the existing building, including twin chimneys that were recognized as architecturally and historically significant by the D.C. Commission of Fine Arts.

Many earlier Mayor�s Agent cases mention the term "partial demolition", but the Act does not distinguish between "demolition" and "partial demolition", nor does it define "partial demolition." The Mayor�s Agent in a case involving the redevelopment of Arena Stage, HPA Nos. 02-471, 472, 515, frowned upon the concept of "partial demolition": "the use of the word �partial� belies the fact that historic fabric will be destroyed in the process of the requested demolition. As such the world �partial� should be used sparingly, if at all." 21

See the separate issue summary "Consistent with Purposes of the Act" for additional context as to this point.

3. Project of Special Merit

In order for a historic property to be demolished under the "special merit" exception, demolition must be "necessary" to allow for a new project providing "significant benefits" to the community through (a) exemplary architecture, (b) specific features of land planning, or (c) social or other benefits having a high priority for community services." 22 The "necessary" analysis sets a relatively high standard. An applicant must demonstrate that all reasonable alternatives to demolition have been considered. 23 Although the Mayor�s Agent will consider cost, delay, and technical feasibility in determining whether a particular demolition is reasonably necessary, the fact that demolition is the least expensive alternative does not mean that it is "necessary." 24

a. Exemplary Architecture.

The exemplary architecture exception for special merit has been strictly construed over the recent decades, and only a few buildings have successfully obtained a demolition permit for exemplary architecture under the Act. 25 Several cases have reiterated that designs must be exemplary, not merely compatible with the historic district. 26 Moreover, exemplary architecture is not simply "high end" or more expensive but should include bold and innovative improvements and represent "design work of the highest caliber." 27

For additional insight on exemplary architecture, see the separate issue summary, "Mayor�s Agent-Exemplary Architecture", and the following article:

Egleston, Pamela, "The Exemplary Architecture Exception to the District of Columbia Historic Landmark and Historic District Protection Act" (2004). Georgetown Law Historic Preservation Papers Series, Paper 13, available at http://scholarship.law.georgetown.edu/hpps_papers/13.

b. Special Features of Land Planning

Projects that carry out specific planning policies and incorporate the interests of the Comprehensive Plan can qualify under special merit�s second prong by virtue of "special features of land planning." 28 In a case involving the renovation of the Arena Stage on the Southwest Waterfront, HPA Nos. 02-471, 472, 515, the Mayor�s Agent held that demolition of the landmarked theater�s administrative and service wings and construction of a glass shell over the theater building incorporated special features of land planning and was a project of special merit. The project would fulfill several goals of the Comprehensive Plan by "preserving two major historic interior theater spaces, providing a third theater and adding support space necessary for the continued viability of the theater company�the project also fulfills a major theme of the plan to �continue to support a healthy arts and cultural community.�" 29

In the "Big K" case, HPA Nos. 14-221, 14-222 (Oct. 28, 2014), the Mayor�s Agent established that "Consistency with the Comprehensive Plan may provide the basis for a project's special merit." 30 The Mayor�s Agent found that a mixed use project bringing much-needed affordable housing and Class A retail to Anacostia satisfied several elements of the Comprehensive Plan. 31

c. Social or other benefits having a high priority for community services

Community services can include fostering arts or physical education at a public school. In the case Duke Ellington School for the Arts, HPA No. 14-322, the Applicants argued at the Mayor�s Agent hearing that the demolition of the theater and certain major renovations at the school promoted important community educational and cultural needs. 32 Based on the evidence produced at the hearing, the Mayor�s Agent agreed with the need to construct modern, high quality theater and performance facilities, the inadequacy of existing facilities, and the necessity of demolition of contributing architecture to realize the benefits of the project. 33

Similarly, in a case involving Rose L. Hardy Middle School, HPA No. 02-608, the Mayor�s Agent agreed that demolition of the two-level gymnasium added in 1931 and the construction of a new gym rose to the level of a project of special merit. 34 First, the new construction would make the facility much more user friendly, and be consistent with DC�s School Specific Educational Specification (SSES) standards for critical program and functional adjacencies. Second, the project would create entirely new spaces on the currently unusable lower level. Third, the new gymnasium would permit two physical education classes to be conducted at once and would comply with floor size regulations for competitive middle school sports. There were other advantages as well, all serving to mark the project as having a high priority for community services.

The expansion and modernization of public safety facilities�such as firehouses�also is considered an important community benefit 35 and is now specifically given a higher priority under D.C. Code Section 6-1108.01.

The social benefits of an affordable housing project does not make a project one of special merit per se, but an affordable housing and well-designed mixed-use project with retail can, in certain limited circumstances, create "benefits having a high priority for community services." 36 In a case involving a proposed 100% affordable housing and retail complex in Anacostia, the Mayor�s Agent reasoned that while benefits common to many developments (such as affordable housing and retail) cannot be considered special within the meaning of the Act, the creation of 114 units of affordable housing specifically in underserved Anacostia was anything but a common occurrence. Moreover, the project would create the first Class A commercial space in the area which could well "galvanize" and have a "catalytic" effect on other affordable housing and Class A office space in the area. 37 In other words it was a unique project.

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1 D.C. Law 2-144, D.C. Code Ann. �6-1102 (2014).
2 Dutra, Jeremy W., "You Can�t Tear it Down: the Origins of the D.C. Historic Preservation Act" (2002). Georgetown Law Historic Preservation Papers Series. Paper 1, at 7. http://scholarship.law.georgetown.edu/hpps_papers/1
3 Id. at 8.
4 The Shipstead-Luce Act of 1930, ch. 291, 46 Stat. 366 (1930) (codified at 40 U.S.C. � 121).
5 See Dutra, supra note 1, at 13.
6 Id. at 9.
7 P.L. 93-198, D.C. Code � 1-201.01 et seq.
8 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S. Ct. 2646 (1978).
9 10 DCMR 9901 (citing D.C. Code � 6-1102(3)).
10 Id. at 24.
11 See D.C. Code � 6-1104(e),(h) (2015).
12 D.C. Code �6-1102.
13 �6-1102(14).
14 900 G Street Associates, HPA No. 79-310 (December 21, 1979); 900 G Street Associates v. Dep�t. of Housing and Community Development, 430 A.2d 1387 (D.C. 1981). For a more recent case to the same effect, see District Intown Props. v. D.C. Dep't of Consumer & Regulatory Affairs, 198 F.3d 874 (D.C. Cir. 1999).
15 HPA No. 79-310 at 11.
16 Id. at 1390.
17 �6-1102(10).
18 In re: Application Of Embassy Real Estate Holdings, LLC, HPA No. 06-171 (Aug. 29, 2006) at 27.
19 See Committee for Washington�s Riverfront Parks v. Thompson, 451 A.2d 1177, 1194 (D.C. App. 1982) ("[D]etermination by [the Historic Preservation Review Board] on a matter within its expertise [must be] accorded considerable deference."). See also In the Matter of Lisa Foster and Alan Bersin 2422 Tracy Place NW, HPA No. 13-600 (Aug. 29, 2013) at 2 ("The Mayor�s Agent generally defers to the expertise of the HPRB on questions of style and material compatibility."). See also Matter of 1901 4th St NW, HPO 15-566 (2015) ("The Mayor�s Agents defers (sic) to expert judgements by the HPRB about compatibility.").
20 Id. at 27 (citing Committee for Washington�s Riverfront Parks, 451 A.2d at 1194)
21 In Re: Application of the Washington Drama Society, Inc. (d/b/a Arena Stage), HPA Nos. 02-471,472, 515 (Sept. 27, 2002) at 1, note 1.
22 D.C. Code �6-1102
23 See Kalorama Heights Ltd. Partnership v. D.C. Department of Consumer and Regulatory Affairs, 655 A.2d 865, 870 (D.C. 1995).
24 See Don't Tear It Down, Inc. v. D.C. Dep�t of Housing and Community Development, 428 A.2d 369, 379-80 (D.C. 1981).
25 See In Re: Application of the Washington Drama Society, Inc. (d/b/a Arena Stage), HPA Nos. 02-471,472, 515 (Sept. 27, 2002); Corcoran Gallery of Art, HPA No. 02-284 (2002).
26 See In re the Woodward Building, HPA No. 86-729 (1988); In re Turkish Chancery, HPA No. 87 (1988).
27 See In Re: Application of Embassy Real Estate Holdings, LLC (former Italian Embassy), HPA No. 06-171 (2006).
28 See Application of the Washington Drama Society, Inc. (d/b/a/ Arena Stage), HPA Nos. 02-471, 472, 515 (Sept. 27, 2002)
29 Id. at 6.
30 2234 and 2238 Martin Luther King Jr. Ave., SE (the Big K), HPA Nos. 14-221, 14-222 (Oct. 28, 2014), at 5.
31 Id.
32 In the Matter of: Duke Ellington School for the Arts (former Western High School), HPA No. 14-322 (Aug. 18, 2014) at 2.
33 Id.
34 In the Matter of Rose L. Hardy Middle School, HPA No. 02-608 (Feb. 3, 2003) at 5.
35 See In the Matter of: Fire Engine Company No. 20, HPA No. 02-223 (June 28, 2002);
36 See 2234 and 2238 Martin Luther King Jr. Ave., SE (the Big K), HPA Nos. 14-221, 14-222 (Oct. 28, 2014).
37 Id. at 4.

VIII. Economic Feasibility

The Historic Landmark and Historic District Protection Act of 1978 ("the Act") provides that no demolition "�permit shall be issued unless the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in an unreasonable economic hardship to the owner." 1 However, the Mayor�s Agent may permit a demolition or alteration when it is "necessary in the public interest" which means either consistent with the purposes of the Act or "necessary to allow the construction of a project of special merit." 2

In deciding whether demolition is "necessary" for a project of special merit, the Mayor�s Agent must consider feasible alternatives, but courts impose a "reasonableness limitation on the consideration of alternatives to demolition." 3 Thus, at a special merit hearing, the Mayor�s Agent should consider "factors including but not limited to cost, delay, and technical feasibility" when determining whether demolition is "necessary." 4 In the Rhodes Tavern case, which first clarified this concept of economic feasibility, the D.C. Court of Appeals found that the developer and Mayor�s Agent had considered a number of alternative developments to the demolition of historic Rhodes Tavern, but that preserving the tavern would have imposed a great cost on the developer. The developer had tried but was unable to secure additional funding from public or private sources for the preservation of the tavern. 5 The court held that under the Act, "demolition is necessary in order to construct a project of special merit whenever retention of the landmark on its original site becomes economically oppressive." 6 Under this rubric, a developer must demonstrate to the Mayor�s Agent that he or she considered all reasonable alternatives, although the developer cannot simply "select the least expensive alternative and summarily reject those which are more costly." 7

This "economic feasibility" standard applies only in the context of a special merit decision and differs from unreasonable economic hardship. Section 6-1102 of the D.C. Code defines "unreasonable economic hardship" as meaning that "failure to issue a permit would amount to a taking of the owner�s property without just compensation." 8 By incorporating the Constitutional regulatory takings standard as set forth by the Supreme Court in the landmark case Penn Central 9 and subsequent decisions, the D.C. Council has avoided successful constitutional takings challenges against its demolition provision. See the subject matter summary on Unreasonable Economic Hardship for more information.

Also see the subject matter summaries on Special Merit to learn more about those provisions.

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1 D.C. Code �6-1104.
2 D.C. Code � 6-1102(10).
3 Citizens� Committee to Save Historic Rhodes Tavern v. D.C. Dep�t of Housing and Community Development, 432 A.2d 710, 718 (D.C. App. 1981).
4 Id.
5 Id.
6 Id.
7 Id.
8 �6-1102(14).
9 Penn Central Transp.Co. v. City of New York, 438 U.S. 104 (1978). If a property retains any value, the court engages in "essentially ad hoc, factual inquiries" that examine the economic impact of the regulation, the regulation�s interference with distinct, investment-backed expectations; and the nature of the governmental action. Id. at 124.

IX. Economic Hardship (Generally)

The Historic Landmark and Historic District Protection Act of 1978 ("the Act") provides that no demolition "�permit shall be issued unless the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in an unreasonable economic hardship to the owner." 1

Section 6-1102 of the D.C. Code defines "unreasonable economic hardship" as occurring when "failure to issue a permit would amount to a taking of the owner�s property without just compensation." 2 The D.C. Council, thus, when designing the economic hardship provision of the Act, simply incorporated the federal regulatory takings standard as set forth by the Supreme Court in the landmark Penn Central 3 takings case decided earlier that same year. By closely following the standard established by the Supreme Court in Penn Central and any subsequent cases the D.C. Council has successfully avoided successful constitutional takings challenges against its demolition provision.

While the economic hardship is closely related to regulatory takings law, it functions rather differently than a regulatory taking. In an economic hardship case, the proper remedy is for the Mayor�s Agent (or the D.C. Court of Appeals, if the Mayor�s Agent decision is being appealed 4) to issue the requested alteration or demolition permit. On the other hand, a regulatory takings challenge to an alteration or demolition permit denial must be filed as an original action in the D.C. Superior Court or in the United States District Court for the District of Columbia. The proper remedy in a takings challenge is just compensation for the property "taken" by the government. 5

In an economic hardship case, the applicant shoulders the burden of proving that there are no reasonable alternative economic uses for the property. The mere fact that historic preservation imposes significant costs or precludes more lucrative uses does not by itself constitute an economic hardship. In 900 G Street Associates v. Department of Housing and Community Development, 6 the Mayor�s Agent denied a developer�s permit to demolish the Old Masonic Temple, an individually designated landmark, for failing to show that the denial would preclude any reasonable use of its property or return on its investment. 7 On appeal, the D.C. Court of Appeals rejected the applicant�s unreasonable economic hardship arguments, concluding: "�if there is a reasonable alternative economic use for the property after the imposition of the restriction on that property, there is no taking, and hence no unreasonable economic hardship to the owners, no matter how diminished the property may be in cash value and no matter if �higher� or �more beneficial� uses of the property have been proscribed." 8

In order for the Mayor�s Agent to determine the economic effect of the preservation laws on a property, the Act requires the applicant to submit relevant information, such as attempts to sell or rent the property for other profitable adaptive uses. 9 Based on this information, the Mayor�s Agent determines whether reasonable economic use remains. In Third Street Church of God, HPA No. 12-023, the Mayor�s Agent determined that the church had not met the standard to show that an approximately $77,000 cost to stabilize several rowhouses in the Capitol Hill Historic District constituted an economic hardship. 10 The Mayor�s Agent concluded that the church could avoid the expense by selling the properties for four times what it paid for the properties and that the cost was but a fraction of its $4 million in assets or the $1.5 million the church had earmarked for its expansion plans. 11

Many other local communities have enacted economic hardship provisions to avoid takings claims to their preservation ordinances, but the District of Columbia may be unique in providing a separate, more flexible economic hardship standard for its low-income property owners. Under this provision, "low-income owners" suffer unreasonable economic hardship if, in the opinion of the Mayor, a permit denial imposes an "onerous and excessive financial burden" upon them. 12 A person is considered low-income under the regulations if his or her household income is eighty percent (80%) or less of the median household income for the Washington Metropolitan Area. 13 This provision provides low-income individuals with a heightened level of protection for their property. However, neither the Mayor�s Agent nor a court has yet to issue a permit under this low-income provision. For a longer discussion on economic hardship, see Johnson, Jeffrey T., "Economic Hardship and Regulatory Takings in the DC Historic Landmark and Historic District Protection Act" (2004). Georgetown Law Historic Preservation Papers Series. Paper 10.

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1 D.C. Code �6-1104.
2 �6-1102(14).
3Penn Central Transp.Co. v. City of New York, 438 U.S. 104 (1978). If a property retains any value, the court engages in "essentially ad hoc, factual inquiries" that examine the economic impact of the regulation, the regulation�s interference with distinct, investment-backed expectations; and the nature of the governmental action. Id. at 124.
4 D.C. Code � 1-1510(a) ("Any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case, is entitled to a judicial review thereof in accordance with this subchapter upon filing in the District of Columbia Court of Appeals a written petition for review.")
5 See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 314-15 (1987) ("This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking.")
6 900 G Street Associates, HPA No. 79-310 (December 21, 1979); 900 G Street Associates v. Dep�t. of Housing and Community Development, 430 A.2d 1387 (D.C. 1981).
7 HPA No. 79-310 at 11.
8 Id. at 1390.
9 See In the Matter of House of God, Inc., HPA No. 11-488, (October 19, 2012) at 2-3 (citing D.C. Code �1104(g)(1)(A)(vi) & (vii) and 10C D.C.M.R. �402.7.
10 In the Matter of Third Street Church of God, HPA No. 12-023 (Oct. 31, 2012).
11 Id. at 3-4.
12 Supra?�6-1102(14).
13 10 D.C.M.R. �2599.1.

X. Facade

Preservation law is not a static concept. It has matured to keep pace with the maturation of preservation principles. Around the time of the enactment of the District of Columbia Historic Landmark and Historic District Protection Act of 1978 ("the Act"), the preservation and incorporation of mere facades into a new development scheme was considered consistent with contempoary preservation principles. But today, mere fa�ade preservation is not enough. Preservationists strive for whole building preservation; or at least retaining enough of a historic structure to tell the full story of its life. And the clout of local preservation interests has also grown commensurately.

A series of cases illustrates the progression in D.C. away from "fa�adism"�the preservation of only the front fa�ade of a building. In Application to raze 1429 F. Street, NW (Rhodes Tavern), HPA No. 80-41 (1979), the Mayor�s Agent approved the total demolition of historic Rhodes Tavern to allow the construction of a large new downtown building that would incorporate the facades of an adjoining theater and bank , also to be otherwise demolished. The Mayor�s Agent noted that the project�s plans started before the enactment of the Act. However, it was deemed to be a project of special merit under the Act because it was "�one of exemplary architecture because of the sensitive incorporation of the facades ... into the total project. The facades of these two structures create a major design impact at one of the most strategic locations." 1 On appeal, the District of Columbia Court of Appeal upheld the determination but said the Mayor�s Agent in the future should record with "a higher degree of precision which historical values associated with a particular landmark were considered�." 2

It should be noted that at the time of the Rhodes Tavern decision, Washington was desperate to secure first class downtown office development and the location of the proposed project was conspicuous because it was directly on the Presidential Inauguration route. Planners and developers hoped that the large new office building would jump-start downtown economic development. Moreover, at the time, the preservation movement in DC was in its infancy and preservationists believed that preserving even the facades of historic buildings was infinitely better than having them totally demolished.

In the 1980s, the Archdiocese of Washington sought to renovate and demolish the rear portions of several rowhouses on the 1700 block of Rhode Island Avenue adjacent to St. Mathews Cathedral in the Dupont Circle Historic District and build a large office building behind them. The Mayor�s Agent allowed the demolition as a special merit project because of exemplary architecture. 3 In its conclusions of law, the Mayor�s Agent noted that the design of the new project would protect the "visual dominance of St. Matthew�s Cathedral, sympathetically linking the two [rowhouse] buildings in architecture while minimizing the visual impact of the new building on the cathedral and the surrounding historic area." 4 By preserving some depth to the rowhouses, the design would complement "the scale, character, fenestration and color of the existing buildings" and establish "a strong relationship between the proposed buildings and the historic site." 5

However, in the last 25 years since the cases noted above were decided, the practice of fa�adism has fallen out of favor as a preservation technique, and it is highly unlikely that these cases would be decided the same way today. Indeed, under current practice, more than mere fa�ade preservation is needed to obtain the special merit exemption under any of its three prongs. 6 In the St. Patrick�s case, the Mayor�s Agent agreed with the HPRB that "the proposed demolition of the seven historic commercial buildings, even taking into account the retention and restoration of the fa�ades, is not �consistent with the purposes of the Act.�" 7

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1 Application to raze 1429 F. Street, NW (Rhodes Tavern), HPA No. 80-41 (1979) at 7.
2 Citizens Committee to Save Historic Rhodes Tavern v. D.C. Dep�t of Housing and Community Development, 432 A.2d 710 (D.C. App. 1981).
3 See In re 1717, 1719, 1721 and 1723 Rhode Island Avenue, NW, HPA No. HPA 87-147, 148, 149,150 (1987).
4 Id. at 8.
5 Id. at 12.
6 See In the Matter of the Archdiocese of Washington (St. Patrick�s), HPA Nos. 99-219, 220, 221, 222, 224, 225, 226, 285 (1999).
7 Id. at 14.

XI. First Amendment (and RLUIPA)

The historic preservation of religious structures creates unique tensions between congregations and preservation schemes. Congregations with historic buildings may want to alter or demolish their buildings to meet changing needs, but local preservation laws such as the District of Columbia�s Historic Landmark and Historic District Protection Act (the "Act")) seek to preserve architectural integrity. 1 Historic preservation can impose financial constraints on religious structures that may be facing shrinking congregations and limited budgets. Congregations sometime appeal the HPRB�s denial of a demolition or alteration permit on grounds that the denial creates an unreasonable economic hardship. And since religious worship occurs in these spaces, restricting how a congregation uses its property also invites claims of infringement of religious free exercise under the First Amendment of the Constitution and of violation of the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). 2 (42 U.S.C. � 2000cc).

Fearing that the Supreme Court�s court decision in City of Boerne v. Flores, 521 U.S. 507 (1997) did not adequately protect congregations under the free exercise clause of the First Amendment, Congress passed RLIUPA in 2000. Under RLUIPA, "state action" that "substantially burdens" religious free exercise can be justified only as the "least restrictive means" of furthering a "compelling governmental interest." RLUIPA applies only to state or federal government action involving land use or institutionalized persons. However, actions of a local government are considered "state" action. Moreover, historic preservation is not considered a "compelling government interest."

Within the context of land use regulation (and historic preservation), RLUIPA applies where the "burden is imposed in the implementation of a land use regulation or system of land use regulations (in this case, historic preservation ordinances), under which a government makes...individualized assessments of the proposed uses for the property involved." The purpose in passing RLUIPA�s land use provisions was to eliminate covert discrimination against religious groups by zoning boards. Despite its sweeping language, the statute was not intended to immunize religious institutions from local land use laws such as zoning or historic preservation. As the Mayor�s Agent recently noted in World Mission Society, Inc., 3 he could not identify a single reported court decision in which any court has held that the denial of a permit under a local historic preservation ordinance violated RLUIPA. Although, for the first time the Mayor�s Agent noted that it was proper for him to decide a case on the merits under RLUIPA.

Although it is doubtful whether the mere landmarking or inclusion into an historic district of contributing properties used for religious purposes, per se, would burden a congregation�s free exercise of religion, a congregation�s claim is not ripe for adjudication until the District actually denies a permit under the Act. Metropolitan Baptist Church v. D.C. Dep�t of Consumer & Regulatory Affairs, 718 A.2d 119 (D.C. 1998). Also, the mere landmarking or inclusion of church property used for religious purposes within an historic district (thus making the property subject to generally-applicable preservation permit requirements) is not per se unconstitutional. See Rector of St. Bartholomew�s Church v. City of New York, 914 F.2d 348, 351-52 (2d Cir. 1990). Thus, churches are subject to neutrally-applied preservation ordinances such as the DC Act. As the Supreme Court noted in the landmark preservation case Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) the decision to landmark a particular building involves discretion and subjective tastes about aesthetics, but the subjective elements considered in the landmarking process do not make the final decision arbitrary because preservation laws treat similar property in a similar manner within a generally applicable scheme.

In the very limited circumstance where a congregation can demonstrate the critical importance of its location to its mission, and the inability to either renovate or obtain another parcel in the same area, the Mayor�s Agent may allow demolition under the Act of a landmarked historic building. Recent cases underscore that religious groups�absent a showing of discriminatory motive, coercion in religious practice, or a congregation�s inability to carry out its religious mission in its existing facilities-- do not receive special exemptions from historic preservation laws so long as they are neutral laws of general applicability.

In Third Church of Christ, Scientist, 4 the church sought to demolish its landmarked concrete Brutalist church building and office building located on 16th and H Streets, blocks from the White House. The Church, faced with burdensome maintenance costs, a much reduced congregation, and dwindling funds, claimed that denial of a demolition permit would cause "unreasonable economic hardship," which under the Act means that "the failure to issue a permit would amount to a taking of the owner�s property" (a Fifth Amendment claim). 5

The Mayor�s Agent did not consider either alleged violations of the First Amendment of the U.S. Constitution, nor of the Religious Freedom Restoration Act 6 ("RFRA") or the RLUIPA 7 ; instead, the Mayor�s Agent allowed demolition on economic hardship grounds D.C. Code � 6-1104(e) (2014). The Mayor�s Agent ultimately granted the demolition permit, subject to the condition that the Applicant first obtain a building permit to construct a new church on the same or nearby parcel.

The Mayor�s Agent found that for the Third Church, "Its location is its mission. To leave the area it has served since 1918 would be tantamount to its destruction. Yet to remain in the present building would have the same result." Because of the "unique relationship between the Church and its location," in the words of the Mayor�s Agent, the Church need not, for example, prove efforts to sell its building in order to relocate, because relocation is not a viable option. The Mayor�s Agent also found that due to the building�s unique design problems, the building could not be adaptively reused. These are very limited conditions that few other congregations will be able to meet.

Indeed, in subsequent cases, religious groups have not been able to show that the denial of an alteration or demolition permit amounted to an unreasonable economic hardship under the Act or a substantial burden on the free exercise of religion under the First Amendment or RLUIPA. In World Mission Society 8 the World Mission Society sought an alteration permit to remove 28 contributing stained-glass windows from its church building, which is located in the Capitol Hill Historic District. The Historic Preservation Office considered the church building a "major building" in the historic district and the windows "historic windows" and "special windows."

The church, which had just purchased the property, said that its core beliefs forbid worship in a space depicting shapes in stained glass. While preserving the windows on the interior of the church building impinges on the worship practices, the Mayor�s Agent faulted the church�s utter lack of due diligence and cavalier attitude toward the law. The congregation purchased a church building in a historic district but failed to investigate whether it could replace the windows. The Mayor�s Agent suggested the situation would be different if the District imposed new preservation restrictions on an existing congregation. The lack of the nexus between the church�s location and its mission makes this case distinguishable from Third Church of Christ, Scientist. 9

In House of God, Inc., 10 the Mayor�s Agent denied House of God�s attempt to demolish a dilapidated carriage house at the rear of its property. The Mayor�s Agent found it would not pose an unreasonable economic hardship to preclude the demolition of the carriage house. The Mayor�s Agent noted that the congregation�s increased costs for stabilization or rehabilitation of the carriage house were attributable directly to its failure to maintain the building adequately. 11 In addition, reasonable alternative uses included the sale of the property so long as the loss would not be unconscionable. Unlike the Third Church of Christ, Scientist case where the Mayor�s Agent found the church could not address economic hardship because its mission was tied to its downtown location and no alternative site was available, the House of God�s location on Capitol Hill was not found to be integral to its mission. 12

Similarly, in the case 1232, 1234, and 1236 New Jersey Avenue, NW, 13 the Mayor�s Agent denied a demolition permit of three rowhouses owned by the Third Street Church of God. In assessing the church�s claim of unreasonable economic hardship, the Mayor�s Agent treated the church just like all other similarly situated property owners in a historic district. Since the Applicant could sell the properties for four times the purchase price, expensive repairs would not impose an unreasonable economic hardship. 14 The Mayor�s Agent accorded great respect to the church�s desire to keep the properties for parking, but the additional cost for stabilization was not deemed to be unreasonably burdensome. 15

For additional analysis of federal and state cases involving historic preservation and religious properties, see the following resources:

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1 D.C. CODE � 6-1101 (2014)
2 42. U.S.C. � 2000cc (2000)
3 See HPA No. 12-263 (2013)
4 HPA No. 08-141 (2009)
5 See HPA No. 08-141 (2009)
6 42 U.S.C. � 2000bb
7 42 U.S.C. � 2000cc
8 See HPA No. 12-263 (2013)
9 See HPA No. 08-141 (2009)
10 See HPA No. 11-488 (2012)
11 See In re House of God, Inc., HPA No. 11-488 (2012)
12 Id at 3-4.
13 See HPA No. 12-023 (2012)
14 See In re 1232, 1234, and 1236 New Jersey Avenue, NW , HPA No. 12-023 (2012)
15 Id at 3.

XIII. Historic District (Contributing Building)

The District of Columbia Historic Landmark and Historic District Protection Act of 1978 1 ("the Act") authorizes the creation of historic districts to "safeguard the city�s historic, aesthetic and cultural heritage." 2 A historic district is an area of the city comprised of properties that are thought to be culturally, historically or architecturally significant, worthy of protection and designated as such by the DC State Historic Preservation Officer (SHPO) after a public hearing before the Historic Preservation Review Board (HPRB). 3 The Act protects those properties that contribute to the character of a historic district, by strictly limiting demolition. 4 The Act also encourages their current use, and ensures that alterations and new construction within the historic district are compatible with the character of the district as a whole. 5

The act of historic district designation imposes a framework of historic preservation regulations on owners of contributing properties in the district. A contributing property is one that adds to the district�s sense of time and place and historical development. 6 Owners of contributing properties must apply to the Mayor for a permit to alter, demolish, subdivide, or build new construction within the district. 7 Even front yard fences that impede the "rhythm and character of the historic district" by obstructing clear vistas and open views could fall victim to the Act. 8 Not every building within the district may contribute to its architectural, historical, or cultural fabric. Buildings that add "to the district�s sense of time and place and historical development" are called "contributing buildings"; those that do not are called "non-contributing buildings." 9 There are no preservation controls on demolishing a non-contributing building. 10

In addition, there is stronger protection under the Act for contributing buildings within a pending historic district than for a pending landmark. The Act�s protections temporarily apply to a proposed historic landmark immediately upon the filing of a landmark application (and permanently upon landmark designation), but the protections of the Act apply to properties within a proposed historic district only after the Historic Preservation Review Board (the "Board") designates the district and the State Historic Preservation Officer nominates or issues a written determination to nominate the district to the National Register of Historic Places. 11

Applications for a new historic district can be made by only by an owner(s) of the affected property(ies),the Board, a public agency, governmental unit or department, Advisory Neighborhood Commission, or a historic preservation organization. 12 In designating a historic district under either the D.C. Inventory criteria 13 or the National Register of Historic Places criteria, 14 the proposed historic district must convey significance in American or District of Columbia history, architecture, archaeology, and culture as well as possess integrity of location, design, setting, materials, workmanship, feeling, and association with significant historical events, persons, or artistic values. It is now well settled that the mere act of including a property in an historic district or landmarking it does not create a justiciable controversy under the First Amendment. 15

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1 D.C. Code �6-1101 et seq.
2 D.C. Code �6-1101(a)(2).
3 D.C. Code �6-1102(5) ("�Historic district� means an historic district: (A) Listed in the National Register of Historic Places as of the effective date of this subchapter; (B) Nominated to the National Register by the State Historic Preservation Officer for the District of Columbia; or (C) Which the State Historic Preservation Officer for the District of Columbia has issued a written determination to nominate to the National Register after a public hearing before the Historic Preservation Review Board.").
4 See 10C DCMR �401.1.
5 D.C. Code �6-1101(b)(1).
6 10C DCMR �9901.
7 See D.C. Code �6-1104, 6-1105, 6-1106, 6-1107.
8 Application of Robert and Sofia Bassman, HPA No. 11-400 (June 14, 2012) at 1-2.
9 See 10 DCMR �9901.
10 See 10C DCMR �305.1.
11 10C DCMR �200.2.
12 10C DCMR �203.1.
13 10C DCMR �201.1.
14 10C DCMR �202.1.
15 Metro. Baptist Church v. D.C. Dep�t of Consumer & Reg. Affairs, 918 A.2d 119 (D.C. 1998); see also Church of St. Paul & St. Andrew v. Barwick, 496 N.E.2d 183 (2d Cir. 1986), cert. denied, 479 US. 985 (1986) (rejecting church�s free exercise challenge to landmark designation where church had not yet applied for a permit).

XII. Historic District

As its name suggests, the District of Columbia Historic Landmark and Historic District Protection Act of 1978 1 ("the Act") establishes procedures for the designation of local historic districts to protect historic properties within them. An historic district is an area or neighborhood comprised of historic properties which has been designated by the DC Historic Review Board (HPRB) after a public hearing and which the State Historic Preservation Officer (SHPO) has issued a written determination to nominate to the National Register of Historic Places. 2

The act of designation then imposes a framework of historic preservation regulations on property owners in the district which serve to limit significant exterior changes to the character of the property or the district. 3 For example, property owners of "contributing" properties must apply to the Mayor for a permit to alter, demolish, subdivide, or build new construction within a historic district. 4 Those properties which do not contribute are called "non-contributing buildings" and they do not have to get Historic Preservation permission for alterations, demolitions, subdivisions or new construction.

Under the Act, the term "Historic district" means an historic district that either is "(A) Listed in the National Register of Historic Places as of the effective date of this subchapter (March 3, 1979); (B) Nominated to the National Register by the State Historic Preservation Officer for the District of Columbia; or (C) Which the State Historic Preservation Officer for the District of Columbia has issued a written determination to nominate to the National Register after a public hearing before the Historic Preservation Review Board." 5

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1 D.C. Code �6-1101 et seq.
2 D.C. Code �6-1102(5)
3 See generally 10A DCMR, and the guidelines issued by the DC Historic Preservation Office (http://planning.dc.gov/historicpreservation).
4 See D.C. Code �6-1104, 6-1105, 6-1106, 6-1107. For a definition of "contributing" property, see 10 DCMR Sec. 9901. Contributing properties are often specifically identified in the historic district nomination application.
5 D.C. Code �6-1102(5).

XIV. Historic Preservation Review Board

The District of Columbia passed the Historic Landmark and Historic District Protection Act of 1978 (the �Act�) to protect � . . . properties of historical, cultural, and esthetic merit.� 1 Under the Act and its implementing regulations, contributing property owners who wish to alter, demolish, subdivide, or engage in new construction in either a historic district or a landmark must seek a permit from the Mayor�s Office, specifically the Historic Preservation Office (�HPO�) within the Office of Planning. 2 The act of applying for a permit triggers the historic preservation review process, in which both the Historic Preservation Review Board (�HPRB�) and the Mayor�by and through the Mayor�s Agent�play the major roles. 3

The Act gives the Mayor the authority to �establish a Historic Preservation Review Board� 4 that advises the Mayor (or the Mayor�s Agent) on preservation permit matters. 5 The Act requires that the review board be comprised of nine members with particular fields of expertise. 6 The Mayor appoints members to the HPRB, subject to confirmation by the D.C. Council. 7 Each member�s term lasts three years; and terms are staggered so that a third of the terms expire each year. 8 Moreover, the Act requires that the Board�s composition reflect the �composition of the adult population of the District of Columbia with regard to race, sex, geographic distribution and other demographic characteristics.� 9

The Mayor refers applications for alteration, demolition, subdivision, or new construction to the HPRB, and the Board advises the Mayor on the compatibility of the proposal with the purposes of the Act as set forth in D.C. Code �6-1101. 10 The HPRB also designates historic landmarks and historic districts in the District of Columbia. 11 Applicants and witnesses testify before the HPRB at meetings that are noticed and open to the public and comply with the District�s administrative law procedures. 12

Because the HPRB is comprised of experts in historic preservation, land planning, architecture, and related fields, the Mayor�s Agent defers to their expertise on questions of compatibility. 13 The Mayor�s Agent justifies his reliance on the HPRB�s expertise because �members of the HPRB are chosen for their expertise and interest in historic preservation and are confirmed by the District of Columbia Council.� 14 In contrast, the Mayor�s Agent is �a neutral figure with no necessary expertise in historic preservation who applies the law to protect the individual and public rights� recognized in the law. 15

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1D.C. CODE � 6-1101. (2014)
2 D.C. CODE � 6-1104 (2014); For a definition of �contributing� see D.C. MUN. REGS. tit. 10-C � 9901
3 Of course, the applicant will first discuss his application with the HPO staff. For applications in the Georgetown Historic District, the Old Georgetown Board, under delegation from the Fine Arts Commission, serves as the HPRB�s equivalent.
4 D.C. CODE � 6-1103(a) (2014)
5 Id.
6 Id. The Act requires the board to be �constituted and its members qualified so as to meet the requirements of a State Review Board under regulations issued by the Secretary of the Interior pursuant to the Act of October 15, 1966 (16 U.S.C. � 470 et. seq.). These professional qualifications are cited in 36 CFR Sec. 61.4(f)(1) (��All Review Board members must have demonstrated competence, interest, or knowledge in historic preservation. A majority of Review Board members must meet �the Secretary of the Interior�s (Historic Preservation) Professional Qualifications Standards� which are part of the larger �Secretary�s Standards and Guidelines for Archeology and Historic Preservation.� The members meeting �the Secretary�s (Historic Preservation) Professional Qualifications Standards� must include at a minimum, one individual meeting �the Secretary�s (Historic Preservation) Professional Qualifications Standards� for history, one individual meeting �the Secretary�s (Historic Preservation) Professional Qualifications Standards� for prehistoric archeology or historic archeology, and one individual meeting �the Secretary�s (Historic Preservation) Professional Qualifications Standards� for architectural history. One person may meet the Standards for more than one required discipline. The other Review Board members, if any, who comprise the majority that meets �the Secretary�s (Historic Preservation) Professional Qualifications Standards� may represent, subject to the SHPO�s selection, any of the disciplines that those �Standards� describe.�).
7 Id.
8 D.C. CODE � 6-1103(b).(2014)
9 Id.
10 D.C. CODE � 6-1103(c)(1) (2014)
11 D.C. CODE � 6-1103(c)(3) (2014)
12 D.C. MUN. REGS. tit. 10-C � 3201 (2004)
13 See In re 1901 4th Street, NW, HPA No. 14-566 (March 3, 2015) (�The Mayor�s Agent defers to expert judgments by the HPRB about compatibility.�).
14 In re Lisa Foster and Alan Bersin, HPA No. 13-600 (August 29, 2014) at 2 (quoting 2225 California Street, NW, H.P.A. No. 11-472 (Feb. 13, 2013)).
15 Id.

XV. Integrity, Loss of

The District of Columbia Historic Landmark and Historic District Protection Act (the "Act"), D.C. Law No. 2-144, D.C. Code �6-1101 et seq., limits the demolition of properties in historic districts only if those properties still contribute to the character of the historic district. 1 If sustained neglect or deterioration cause a structure to lose its historic integrity to such an extent that it no longer contributes to the character of the historic district or to the historic landmark itself, the demolition of the structure does not fall under the protections of the Act.

In determining whether an historic property retains sufficient integrity, the Mayor�s Agent will consider public safety and the economic hardship which might be caused by restoration. 2 When an element of an historic landmark or contributing building has deteriorated to such an extent that it is beyond repair, such as in the Vigilant Firehouse case where the bricks in the landmark�s south wall "crumbled to dust in one�s hand," that building element may be considered to not contribute to or enhance the historic character of the landmark or contributing building. 3 In the Vigilant Firehouse case, the Mayor�s Agent was "guided by the fact that the south wall could not contribute to, or enhance, this landmark in such an irreparable condition." 4 Moreover, the demolition of the wall would not mar the other "salient historic qualities of the building." 5

Sometimes developers will assert that deteriorated historic properties lack integrity and should be demolished. The Historic Preservation Office may conduct a site inspection to determine whether character-defining elements can be restored, thus making demolition unwarranted. 6 The Mayor�s Agent will consider applications to raze deteriorating landmarks or contributing buildings in historic districts only with "careful thought and deliberation." 7

In cases subsequent to Vigilant Firehouse, the Mayor�s Agent has been somewhat more reluctant to grant demolition permits to historic properties in deteriorated condition, although in these cases the key issue turned not on whether the property lacked integrity but whether stabilization and rehabilitation would create an economic hardship for the owner. The applicants in these later cases did not contest the Historic Preservation Review Board�s conclusion that the properties maintained sufficient integrity to contribute character to the historic district. 8

As noted above, the question of integrity is intertwined with that of economic hardship, as applicants sometimes seek demolition of a landmark or contributing building in an historic district because they claim that they cannot afford to make necessary renovations or restoration. 9 The Mayor�s Agent may not allow a demolition permit on loss of integrity grounds if the "increased costs for stabilization or rehabilitation are attributable" to the applicant�s "failure to maintain the building" so as to avoid offering an incentive to poor stewardship of historic properties, thus encouraging demolition by neglect. 10

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1 D.C. Code �6-1101(b)(1)(A). See also 1232, 1234, and 1236 New Jersey Avenue, NW (Third Street Church of God), HPA No. 12-023 (Nov. 5, 2012) at 1-2.
2 Integrity is defined in the Regulations as: "Authenticity of a property�s historic identity, evidenced by the survival of physical characteristics that existed during the property�s pdriod of significance." 10C DCMR �9901
3 District of Columbia Preservation League v. District of Columbia Dep�t of Consumer & Regulatory Affairs, 711 A.2d 1273, 1276 (D.C. App. 1998).
4 Id.
5 Id.
6 Third Street Church of God, HPA No. 12-023 at 2.
7 1230, 1232, 1234, and 1236 Pleasant Street, SE, HPA Nos. 98-150; 98-151; 98-152; 98-153 (Dec. 18, 1998) at 8.
8 Id. at 2. See also House of God, Inc., HPA No. 11-488 (Oct. 19, 2012) at 3.
9 See, e.g., House of God, Inc., HPA No. 11-488 at 3.
10 Id.

XVI. Landmarks

The District of Columbia Historic Landmark and Historic District Protection Act of 1978 1 (the �Act�) authorizes the creation of historic landmarks to �safeguard the city�s historic, aesthetic and cultural heritage.� 2 An �historic landmark� is a �building, structure, object, or feature, and its site, or a site� either listed in the National Register of Historic Places or listed (including pending applications for listing) in the District of Columbia�s inventory of historic sites. 3 The Act extends to any property for which an application for landmark status is pending with the Historic Preservation Review Board (�HPRB� or the �Board�), provided that the HPRB schedules a hearing on the application within 90 days to determine whether the property satisfies the criteria of a landmark. 4 The Act intends to retain and enhance historic landmarks, and to encourage current use as well as restoration. 5

The act of historic landmark designation imposes a framework of historic preservation regulations on owners of landmarks to limit significant changes to the landmark�s integrity. For instance, in D.C., owners of a landmark must apply to the Mayor for a permit to alter, demolish, subdivide, or build new construction on the site of an historic landmark. 6 Development controls on historic landmarks are slightly stricter than for contributing buildings in historic districts. For example, one of the purposes of the Act with respect to historic districts is to ensure that �alterations of existing structures are compatible with the character of the historic district,� 7but that same compatibility phrasing does not apply to the purposes of the Act with respect to landmarks. Instead, the Act aims to �encourage the restoration of historic landmarks.� 8 The term �restoration� rather than compatible �alterations� denotes a narrower scope of permitted activities at a landmark.

In addition, there is stronger protection under the Act for a pending landmark than for contributing buildings within a pending historic district. The Act�s protections temporarily apply to a proposed historic landmark immediately upon the filing of a landmark application (and permanently upon landmark designation), but the protections of the Act apply to properties within a proposed historic district only after the HPRB designates the district and the State Historic Preservation Officer �nominates or issues a written determination to nominate the district to the National Register of Historic Places.� 9 In a case concerning the former Italian Embassy, the developer of the former embassy property on 16th Street had applied for and had received some of the requested permits before the Historic Preservation Office applied to designate the property a landmark and before the HPRB had completed its review of the landmark designation application. Nevertheless, the D.C. Court of Appeals affirmed that the Act grants the Board jurisdiction over pending landmark designations as well as previously designated landmarks. 10

Applications for a new historic landmark can only be made by �the owner of the affected property, the Board, a public agency, governmental unit or department, Advisory Neighborhood Commission, or a historic preservation organization.� 11 In designating a landmark under either the D.C. Inventory criteria 12 or the National Register of Historic Places criteria, 13 the proposed landmark must convey significance in American or District of Columbia history, architecture, archaeology, and culture as well as possess integrity of location, design, setting, materials, workmanship, feeling, and association with significant historical events, persons, or artistic values.

The U.S. Supreme Court has long held that historic preservation is a legitimate government objective and that designating an historic landmark does not in itself create an unconstitutional taking. 14 Similarly, it is well settled law that the mere act of landmarking does not create a justiciable controversy under the First Amendment. 15

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1 D.C. CODE � 6-1101 (2014) et seq.
2 D.C. CODE � 6-1101(a)(2) (2014)
3 D.C. CODE � 6-1102(6) (2014)
4 D.C. CODE � 6-1102(6) (2014)
5 D.C. CODE � 6-1101(b)(2) (2014)
6 See D.C. CODE � 6-1104, 6-1105, 6-1106, 6-1107 (2014)
7 D.C. CODE � 6-1101(b)(1) (2014)
8 D.C. CODE � 6-1101(b)(2)(B) (2014)
9 D.C. MUN. REGS. tit. 10-C � 200.2 (2004)
10 See Embassy Real Estate Holding, LLC v. District of Columbia Mayor�s Agent for Historic Preservation, 944 A.2d 1036 (D.C. 2008).
11 D.C. MUN. REGS. tit. 10-C � 203.1 (2004)
12 D.C. MUN. REGS. tit. 10-C � 201.1 (2004)
13 D.C. MUN. REGS. tit.10-C � 202.1 (2004)
14 See Penn. Central Transp. Co. v. City of New York, 438 U.S. 104 (1978).
15 Metro. Baptist Church v. D.C. Dep�t of Consumer & Reg. Affairs, 718 A.2d 119 (D.C. 1998); see also Church of St. Paul & St. Andrew v. Barwick, 496 N.E.2d 183 (NY/. 1986), cert. denied, 479 US. 985 (1986) (rejecting church�s free exercise challenge to landmark designation where church had not yet applied for a permit).

XVII. Mayor's Agent: D.C. Administrative Procedure Act

The regulations implementing the Historic Landmark and Historic District Protection Act of 1978 1 ("the Act") are consistent with the District of Columbia Administrative Procedure Act, 2 which establishes procedures for the Mayor (Mayor�s Agent) and District government agencies to use when administering District laws. The purpose of these procedures is to ensure that parties receive fair treatment from the government and that the record of government action is transparent and reasonable.

These administrative procedures apply in "contested cases" when a party appeals a decision of the Historic Preservation Board in a hearing before the Mayor�s Agent. 3 For instance, the procedures require that the Mayor�s Agent shall provide reasonable notice of a hearing. 4 The proponent of a rule or order has the burden of proof in contested cases. 5 Legal counsel may represent the applicant, and parties and persons may appear in opposition to the permit application. 6 Parties can submit oral or documentary evidence as well as rebuttal evidence and conduct cross-examination. 7 The Mayor�s Agent or the agency must maintain an official written record for each contested case. 8 In addition, every Mayor�s Agent order must include findings of fact and conclusions of law in a decision or order, 9 although this can be waived by the Mayor�s Agent for good cause (usually if no parties are in opposition). 10 If a party opposes the order or decision of the Mayor�s Agent, he or she can appeal to the District of Columbia Court of Appeals. 11

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1 D.C. Law 2-144, as amended; D.C. Code �6-1101 et seq.
2 D.C. Code �2-501 et seq.
3 10A DCMR �100; D.C. Code �2-509.
4 D.C. Code �2-509(a).
5 D.C. Code �2-509(b).
6 10 DCMR �2501.1, 2517.1.
7 D.C. Code �2-509(b).
8 �2-509(c).
9 �2-509(e); 10A DCMR �410.1.
10 10A DCMR � 3207.3 ("Mayor's Agent, SHPO [State Historic Preservation Officer], and Review Board may, for good cause shown, waive any of the provisions of these rules pertaining to their respective authorities, if in their judgment the waiver will not prejudice the rights of any person and is not otherwise prohibited by law.").
11 D.C. Code �2-510(a).

XVIII. Mayor's Agent - General revised

The District of Columbia passed the Historic Landmark and Historic District Protection Act of 1978 ("the Act") to protect "properties of historical, cultural, and esthetic merit." 1 Under the Act and its implementing regulations, property owners who wish to alter, demolish, subdivide, or engage in new construction in either a historic district or a landmark must seek a permit from the Mayor�s Office (the Historic Preservation Office of the Office of Planning). 2 The actual permit decision by the Mayor�s Agent is the last step in the historic preservation review process, in which both the Historic Preservation Review Board ("HPRB") and the Mayor�by and through the Mayor�s Agent�play the major roles. 3 Under the Act, the term "Mayor" means "the Mayor of the District of Columbia, or his designated agent," 4 so whenever the Act references "Mayor," it also refers to the Mayor�s Agent.

Unlike members of the Historic Preservation Review Board, the Mayor�s Agent need not have experience in historic preservation (although the current Mayor�s Agent is a professor of historic preservation law). There have been about two dozen Mayor�s Agents since the inception of the Act. 5 The previous Mayor�s Agent was an administrative law judge, and he began to align his Mayor�s Agent decisions with the precepts of administrative law to bring a greater degree of consistency and precedent to the review process. The current Mayor�s Agent (as of 2015) has continued this trend.

The Mayor�s Agent does not hear a permit case until the applicant has first gone before the HPRB at a public hearing. The HPRB makes recommendations to the Mayor�s Agent on an application for a permit under �� 6-1104 through 6-1108. 6 If the applicant is dissatisfied with the HPRB�s decision (a "contested case"), the applicant can request a de novo hearing before the Mayor�s Agent where the applicant, its counsel, architectural experts, and other witnesses can give evidence to the Mayor�s Agent. The Mayor�s Agent reviews this record and issues a final decision. The decision must be issued within 120 days of the hearing and becomes final fifteen days after issuance. 7 The Mayor�s Agent proceedings must comply with the District�s administrative procedures, as codified in Chapter 5 of Title 2 of the D.C. Code. 8 An applicant must go to the District of Columbia Court of Appeals to seek an appeal of an unfavorable Mayor�s Agent decision. 9

If the HPRB has approved the granting of a permit, but a member of the public (not a party to the proceeding) opposes the outcome, the Mayor�s Agent may refrain from holding a discretionary public hearing unless the "request demonstrates a palpable error of law or such a clear error of judgment as to amount to an abuse of discretion." 10

Because the HPRB is comprised of experts in historic preservation, land planning, and architecture, the Mayor�s Agent increasingly defers to their expertise on questions of compatibility. 11 The Mayor�s Agent justifies his reliance on the HPRB�s expertise because "members of the HPRB are chosen for their expertise and interest in historic preservation and are confirmed by the District of Columbia Council." 12 In contrast, the Mayor�s Agent is "a neutral figure with no necessary expertise in historic preservation" who applies the law to protect the individual and public rights recognized in the law. 13

In addition, now that all Mayor�s Agent decisions are available online and catalogued, the Mayor�s Agent increasingly cites previous decisions to support the Mayor�s Agent�s understanding of his authority in the case at issue, or to support the Mayor�s Agent interpretation of the Act. 14 The parties before the Mayor�s Agent also rely on the precedent established by prior rulings of the Mayor�s Agent and relevant court decisions.

For more information on the HBRP and Mayor�s Agent, see Flock, Brian M., "The House that the Mayor�s Agent Built: Stare decisis and the Decisions of the Mayor�s Agent Under D.C. Historic Preservation Law" (2005). Georgetown Law Historic Preservation Papers Series. Paper 6.

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1 D.C. Code �6-1101.
2 D.C. Code �6-1104.
3 For applications in the Georgetown Historic District, the Old Georgetown Board (OGB), under delegation from the Fine Arts Commission, serves as the HPRB�s equivalent. An ANC may take an appeal from an adverse decision of the OGB to the HPRB which may consider the matter sua sponte if the case p[resents a city-wide issue.
4 D.C. Code �6-1102(8). Appeals from Landmark or Historic District decisions of the HPRB do not go to the Mayor�s Agent; but to DC Superior Court.
5 See Flock, Brian M., "The House that the Mayor�s Agent Built: Stare decisis and the Decisions of the Mayor�s Agent Under D.C. Historic Preservation Law" (2005), Georgetown Law Historic Preservation Papers Series, at 8.
6 D.C. Code �6-1103(c)(1).
7 D.C. Code �6-1112(a).
8 D.C. Code �6-1112(b). For Regulations regarding proceeding before the Mayors Agent, see 10A DCMR Ch.4
9 D.C. Code � 1-1510(a) ("Any person suffering a legal wrong, or adversely affected or aggrieved, by an order or decision of the Mayor or an agency in a contested case, is entitled to a judicial review thereof in accordance with this subchapter upon filing in the District of Columbia Court of Appeals a written petition for review.").
10 In the Matter of 1922 Belmont Road, NW, HPA No. 14-18 (Jan. 5, 2015) at 2.
11 See In the Matter of: 1901 4th Street, NW, HPA No. 14-566 (March 3, 2015) ("The Mayor�s Agent defers to expert judgments by the HPRB about compatibility.").
12 In the Matter of: Lisa Foster and Alan Bersin, HPA No. 13-600 (August 29, 2014) at 2 (quoting 2225 California Street, NW, H.P.A. No. 11-472 (Feb. 13, 2013)).
13 Id.
14 See e.g., 1922 Belmont Road, supra note 9, at 2.

XIX. Mayor's Agent - Jurisdiction

The Mayor�s Agent reviews work -- including demolition, alteration, subdivision, and new construction -- that could impact landmarks and contributing buildings in historic districts. 1 The Mayor�s Agent first refers any applications for such work impacting historic properties to the Historic Preservation Review Board ("HPRB" or the "Board"), which contains experts on historic preservation, history, architectural history, and architecture, and which advises the Mayor�s Agent. 2 The Historic Preservation Office, which serves as the administrative staff to the Mayor�s Agent, assists the Board in exercising this authority. 3

Mayor�s Agent�s hearings may be either mandatory or discretionary, depending on the procedural posture of the case as it emerges from the initial HPRB review. If the Board recommends denial of a requested permit involving "demolition of historic landmarks or contributing building in historic districts, subdivision of historic landmarks, [or] a claim of unreasonable economic hardship or special merit," public hearings are mandatory. 4 For all other applications, including when the Board approves an applicant�s permit as consistent with the purposes of the Historic Landmark and Historic District Protection Act, an additional public hearing before the Mayor�s Agent is within the Mayor�s Agent�s "sole discretion." 5 As the Mayor�s Agent explained in a recent case, the Mayor�s Agent�s role is "very limited" when the Board recommends approval:

"The Mayor�s Agent should hold a public hearing only when a request demonstrates a palpable error of law or such a clear error of judgment as to amount to an abuse of discretion. Any other approach would encourage routine efforts by disappointed opponents of applications to overturn HPRB decisions and upset the appropriate allocation of functions between the HPRB and the Mayor�s Agent." 6

The Mayor�s Agent also has jurisdiction to determine whether landmarks or contributing buildings in historic districts are faced with demolition by neglect, and he or she can enforce remedies as necessary. 7

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1 10C DCMR �104.4
2 Id.
3 10C DCMR �104.1(b), �104.2(a).
4 10C DCMR �104.4. This authority may be delegated to the Mayor�s Agent (Hearing Officer). Id.
5 10C DCMR �104.4. See In the Matter of 1922 Belmont Road, NW, HPA No. 14-18 (Dec. 18, 2014) at 2.
6 In the Matter of 1922 Belmont Road, NW, HPA No. 14-18 (Dec. 18, 2014) at 2 (quoting In the Matter of 2225 California St., NW, HPA No. 11-472 (Feb. 24, 2013).
7 10C DCMR �104.5.

XX. Necessary in the Public Interest

Under the D.C. Historic Landmark and Historic District Protection Act ("the Act") (D.C. Law 2-144, D.C. Code �6-1101 et. seq.) the Mayor�or Mayor�s Agent, by designation�may not issue a permit for the demolition, alteration, or subdivision of a historic landmark or contributing building in an historic district unless "the Mayor finds that issuance of the permit is necessary in the public interest, or that failure to issue a permit will result in unreasonable economic hardship to the owner." 1 The Act defines "necessary in the public interest" as "consistent with the purposes of this subchapter as set forth in �6-1101(b) or necessary to allow the construction of a project of special merit." 2 The purposes of this subchapter include the enhancement and adaptive reuse of historic landmarks and contributing buildings; ensuring that alterations to contributing buildings, subdivisions, and new construction in historic districts are "compatible" with the district�s character: and encouraging the restoration of historic landmarks. 3

While the Mayor�s Agent enjoys a fair amount of discretion under the Act in making a consistency or special merit determination, increasingly the Mayor�s Agent defers to the Historic Preservation Review Board�s expertise on questions of compatibility. 4 Please see the issue summaries for "consistent with the purposes of the Act," "compatible" and "special merit" for further discussion of these subjects.

While the term "public interest" is broad for the purposes of the Act, the "public interest" in cultural preservation remains the dominant consideration. 5 This interest in cultural preservation is often weighed against such competing interests as economic development, property rights, and religious liberty. However, the cultural interest in preservation can be a challenging hurdle to overcome. 6 For example, in the World Mission Society, Inc. (Church of God) case, the Mayor�s Agent rejected the Applicant�s argument that removal of stain glassed windows in a historic Capitol Hill church was "necessary in the public interest" because a) removal of character-defining windows is not consistent with the Act; b) religious ministries have general benefits and are not entitled to special treatment within the meaning of the Act; and c) the proposed renovations were not "exemplary architecture" that might otherwise justify removal of the windows as a project of special merit. 7

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1 D.C. Code �6-1104(e) (demolition); 6-1105(f) (alterations); 6-1106(e) (subdivision).
2 D.C. Code �6-1102(10).
3 D.C. Code �6-1101(b) ("(b) It is further declared that the purposes of this subchapter are: 4 See In the Matter of: Lisa Foster and Alan Bersin, HPA No. 13-600 (August 29, 2014).
5 Under the Act, the public interest standard "means consistent with the purposes of this act as set forth in section 2(b) or necessary to allow the construction of a project of special merit." D.C. Code �6-1102(10).
6 See World Mission Society, Inc. (House of God), HPA No. 12-263 (June 17, 2013).
7 Id. at 6.

XXI. Special Merit - General

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") 1 acknowledges the limited need for new construction in historic areas and allows for the demolition and alteration of landmarked or contributing buildings to historic districts in very narrow circumstances. Specifically, the Mayor�s Agent may permit such demolition or alteration when it is "necessary in the public interest" such as when "necessary to allow the construction of a project of special merit." 2 Such "special merit" projects must provide "significant benefits to the District of Columbia or to the community by virtue of exemplary architecture, specific features of land planning, or social or other benefits having a high priority for community services." 3

A special merit determination includes three steps. The Mayor�s Agent first must decide whether the proposed project meets one the three criteria of special merit established in the Act: (i) exemplary architecture, (ii) specific features of land planning, or (iii) social or other benefits having a high priority for community services. 4 If the project satisfies one of these three per se criteria, then the Mayor�s Agent next determines if the special merit project outweighs the "historical value of the particular landmark" or contributing building. 5 If this balancing test suggests to the Mayor�s Agent that the project�s benefits exceed the historic value of the property, then the Mayor�s Agent must also find that the work is "necessary" to allow the special merit project. 6 Each of these steps is discussed in more detail below.

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1 D.C. Law 2-144, D.C. Code Ann. �6-1102 (2014)
2 D.C. Code Ann. � 6-1102(10).
3 D.C. Code Ann. �6-1102(11).
4 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5. See also In Re: Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the "Big K") at 3; In the Matter of : QC 369 LLC, HPA Nos. 14-460 and 14-461 (Jan. 27, 2015) at 3.
5 In Re: Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the "Big K") at 3. (quoting Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Department of Housing and Community Development, 432 A.2d 710, 715-16 (D.C. App. 1981)). See also Committee of 100 on the Federal City v. D.C. Department of Consumer and Regulatory Affairs, 571 A.2d 195, 200 (D.C.1990) ("the balancing of the historic value of the Woodward Building against the special merits of the project could not proceed until the Mayor's Agent found that the amenities proposed by S.J.G. were sufficient to constitute a project of special merit," which they were not).
6 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5.
7 Id.
8 NADINE P.WINTER, CHAIR OF THE D.C. COMMITTEE ON HOUSING AND URBAN DEVELOPMENT, REPORT ON BILL 2-367, "THE HISTORIC LANDMARK AND HISTORIC DISTRICT PROTECTION ACT OF 1978," 6 (Oct. 5, 1978).
9 Committee of 100 on the Fed. City v. District of Columbia Dep�t of Consumer & Regulatory Affairs, 571 A.2d 195, 201 (D.C. 1990).
10 See Kalorama Heights Ltd. Partnership v. District of Columbia Dept. of Consumer and Regulatory Affairs, 655 A.2d 865, 870 (D.C. 1995) (higher real estate tax receipts are generally not a special benefit having a high priority). See also Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 7.
11 Duke Ellington School for the Arts, HPA No. 14-322 (August 18, 2014).
12 Corcoran Gallery of Art, HPA. No. 02-284 (September 19, 2002).
13 In the Matter of: QC 369 LL, HPA. No. 14-460 and 14-461 (January 27, 2015).
14 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5.
15 2228 MLK LLC and DC Department of Housing and Community Development (The Big K), HPA Nos. 14-221, 14-222 (October 28, 2014).
16 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5; In Re: Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the "Big K") at 3; In the Matter of: QC 369 LL, HPA Nos. 14-460 and 14-461 (January 27, 2015) at 4 ("The Mayor�s Agent must balance the goals and objectives achieved by the new construction against the effects of demolition") (citing Citizens Committee to Save Rhodes Tavern v. District of Columbia Dep�t of Hous. and Community Development, 432 A.2d 710, 716 (D.C. 1981)).
17 In Re: Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the "Big K") at 3.
18 D.C. Code � 6-1108.1(g).
19 See, e.g., Engine Co. No. 28, HPA No. 12-144 (April 3, 2012).
20 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5 (citing In the Matter of: 2228 MLK LLC, HPA Nos. 14-221 and 14-222 (Oct. 18, 2014) at 3.
21 Don�t Tear It Down, Inc. v. District of Columbia Dep�t of Hous. & Community Development, 428 A.2d 369, 380 (D.C. 1981).
22 Id.

XXII. Special Merit - Balancing Test

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") acknowledges the limited need for new construction in historic areas and allows for the demolition and alteration of landmarked or contributing buildings to historic districts in very narrow circumstances. Specifically, the Mayor�s Agent may permit such demolition or alteration when it is "necessary in the public interest" such as when "necessary to allow the construction of a project of special merit." Such "special merit" projects must provide "significant benefits to the District of Columbia or to the community by virtue of exemplary architecture, specific features of land planning, or social or other benefits having a high priority for community services."1

When drafting the Act, the D.C. Council envisioned the special merit provision of the Act as a "balancing . . . of a proposed project against the historic value of the existing historic buildings, because only projects that offer significant benefits to the District . . . can readily offset the Council�s recited public policy in favor of protecting, enhancing, and perpetuating the use of [historic] properties."2 The Mayor�s Agent, in the "Big K" case, explained that the special merit provision codifies the understanding that historic preservation values, while strong, are not absolute and that the preservation law incorporates discretionary flexibility

"This provision both recognizes the high importance of preserving historic buildings and other properties for the cultural, aesthetic, and economic benefit of all residents, and also honestly acknowledges that other public values will sometimes justify sacrificing some historic resources to achieve substantial and unusual public benefits."3

A special merit determination includes three steps. The Mayor�s Agent first must decide whether the proposed project meets one the three criteria of special merit established in the Act: (i) exemplary architecture, (ii) specific features of land planning, or (iii) social or other benefits having a high priority for community services.4 If the project satisfies one of these three per se criteria, then the Mayor�s Agent next determines if the special merit project outweighs the "historical value of the particular landmark" or contributing building.5 If this balancing test suggests to the Mayor�s Agent that the project�s benefits exceed the historic value of the property, then the Mayor�s Agent must also find that the work is "necessary" to allow the special merit project.6

The balancing test is a fact-specific determination. In the Vision McMillian Partners case7, the developers proposed to eliminate the open space aspect of the McMillan Sand Filtration Site and demolish nearly all of the underground filter cells--"significant examples of early twentieth-century engineering which possess a spectral beauty."8 The Mayor�s Agent noted, however, that the preservation benefits of the project were "very impressive."9 The project would recreate the long-abandoned Olmstead Walk, rehabilitate and adaptively reuse all of the site�s visible historic built resources, and open the site to the public for the first time since World War II.10 While the proposed project would cause serious loss to McMillan�s historic resources, the project�s increased public access, rehabilitation, and interpretation would promote preservation gains to the public.11 Thus, the Mayor�s Agent concluded: "While there is a net preservation loss, the account is narrowed by the promised benefits. When one then factors in the overall quality of the master plan, the provision of affordable housing beyond what is otherwise required, in a mixed income, mixed-density, and mixed-use context, the provision of needed retail, and the economic synergy of the medical offices, the special merit features of the project clearly outweigh the net preservation losses."12

In the limited situations where modifications to public safety facilities such as police or fire stations are proposed so as to satisfy their modern operational needs, the Act stipulates that the operational needs of the public safety facility trump the public interest in preservation: "In considering a claim of special merit, substantial rehabilitation or new construction for the operational needs of a public safety facility shall constitute a public interest having significantly higher priority than that of historic preservation."13 Thus, in several cases the Mayor�s Agent has approved tasteful modifications to fire stations so as to allow for larger station doors.14

Please see the subject matter summaries for "Special Merit-General," "Special Merit Community Services," "Special Merit-Exemplary Architecture," and "Special Merit-Special Features, Comprehensive Plan" for more detail on these criteria. Please also see Rugaber, Elizabeth Wohlken, "The Special Merit Exemption Under D.C.'s Historic Preservation Act: An Analysis of 20 Years of Application and Suggestions for the Future" (2002), Georgetown Law Historic Preservation Papers Series, Paper 8.

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1 D.C. Code Ann. �6-1102(11).
2 See Committee of 100 on the Federal City v. D.C. Department of Consumer and Regulatory Affairs, 571 A.2d 195, 200 (D.C. App. 1990). See also Don�t Tear It Down, Inc. v. D.C. Department of Housing and Community Development, 428 A.2d 369, 373 (D.C. App. 1981).
3 In Re: Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the "Big K") at 3.
4 Id.
5 Id. (quoting Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Department of Housing and Community Development, 432 A.2d 710, 715-16 (D.C. App. 1981)). See also Committee of 100 on the Federal City v. D.C. Department of Consumer and Regulatory Affairs, 571 A.2d 195, 200 (D.C.1990) ("the balancing of the historic value of the Woodward Building against the special merits of the project could not proceed until the Mayor's Agent found that the amenities proposed by S.J.G. were sufficient to constitute a project of special merit," which they were not).
6 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5.
7 Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015).
8 Id. at 9.
9 Id.
10 Id.
11 Id. at 10.
12 Id.
13 D.C. Code � 6-1108.1(g).
14 See, e.g., Engine Co. No. 28, HPA No. 12-144 (April 3, 2012).

XXIII. Special Merit - Community Services

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") 1 acknowledges the limited need for new construction in historic areas and allows for the demolition and alteration of landmarked or contributing buildings to historic districts in very narrow circumstances. Specifically, the Mayor�s Agent may permit such demolition or alteration when it is "necessary in the public interest" such as when "necessary to allow the construction of a project of special merit." 2 Such "special merit" projects must provide "significant benefits to the District of Columbia or to the community by virtue of exemplary architecture, specific features of land planning, or social or other benefits having a high priority for community services." 3

A special merit determination includes three steps. The Mayor�s Agent first must decide whether the proposed project meets one the three criteria of special merit established in the Act: (i) exemplary architecture, (ii) specific features of land planning, or (iii) social or other benefits having a high priority for community services. 4 If the project satisfies one of these three per se criteria, then the Mayor�s Agent next determines if the special merit project outweighs the �historical value of the particular landmark� or contributing building. 5 If this balancing test suggests to the Mayor�s Agent that the project�s benefits exceed the historic value of the property, then the Mayor�s Agent must also find that the work is �necessary� to allow the special merit project. 6

Previous Mayor�s Agent decisions highlight the type of projects that offer �social or other benefits having a high priority for community services.� For instance, while an affordable housing project or Class A retail cannot be considered a project of special merit per se, a well -designed and financed project on publicly-owned land that �creatively meets pressing community needs for affordable housing and retail� presumptively creates �benefits having a high priority for community services.� 7 The Mayor�s Agent in the Big K case, HPA Nos. 14-221 and 14-222, reasoned that the creation of 114 units of affordable housing is anything but a common occurrence. Moreover, that project would serve to �galvanize� and have a �catalytic� effect on other affordable housing and provide the only Class A office space in Anacostia. 8 Similarly, the Mayor�s Agent found that the McMillan redevelopment project, which combined affordable housing in excess of required minimums, public park open space, a walking museum, an outdoor amphitheater, and needed retail on the McMillan Slow Sand Filtration Site, provided �high priority community benefits.� 9 In contrast, benefits common to many developments cannot be considered special within the meaning of the Act, either because they benefit higher income residents and do not meet a community-wide need for affordable housing or because they are generally met by the market on their own. 10

Similarly, projects that expand and improve inadequate public educational, cultural, or athletic facilities often are found to be projects of special merit. In Duke Ellington School for the Arts, HPA. No. 14-322, the Mayor�s Agent found that replacing the school�s inadequate theater and performance facilities with modern, high quality venues was an important community educational and cultural need. 11 In the case of Rose L. Hardy Middle School, HPA No. 02-608, the Mayor�s Agent found that demolition of the old gymnasium and construction of a replacement was a project of special merit having significant educational benefits to the District of Columbia and having a high priority for community services. 12 The new building would render the facility more user-friendly, would create new spaces consistent with floor size regulations for competitive sports, and make the structure compliant with the American with Disabilities Act. 13

See the subject matter summaries for �Special Merit-Exceptional Architecture� and �Special Merit-Comprehensive Plan� for additional context.

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1 D.C. CODE � 6-1102 (2014)
2 D.C. CODE � 6-1102(10) (2014)
3 D.C. CODE � 6-1102(11) (2014)
4 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5. See also In re Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the �Big K�) at 3; In re QC 369 LLC, HPA Nos. 14-460 and 14-461 (January 27, 2015) at 3.
5 In re Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the �Big K�) at 3. (quoting Citizens Comm. to Save Historic Rhodes Tavern v. D.C. Department of Housing and Community Development, 432 A.2d 710, 715-16 (D.C. 1981)). See also Committee of 100 on the Federal City v. D.C. Department of Consumer and Regulatory Affairs, 571 A.2d 195, 203 (D.C. 1990) (�the balancing of the historic value of the Woodward Building against the special merits of the project could not proceed until the Mayor�s Agent found that the amenities proposed by S.J.G. were sufficient to constitute a project of special merit,� which they were not).
6 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5.
7 In re Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the �Big K�) at 4-5.
8 Id. at 5-6.
9 Application of Vision McMillan Partners, LLC, HPA No. 14-393 (April 13, 2015) at 5.
10 In re Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the �Big K�) at 6.
11 In re Duke Ellington School for the Arts, HPA No. 14-322 (August 18, 2004) at 2.
12 Rose L. Hardy Middle School, HPA No. 02-608 (February 3, 2003) at 5.
13 Id. at 4.

XXIV. Special Merit - Comprehensive Plan

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") 1 recognizes the limited need for new construction in historic areas and allows for the demolition and alteration of landmarked or contributing buildings to historic districts in very narrow circumstances. Specifically, the Mayor�s Agent may permit such demolition or alteration when it is "necessary in the public interest" such as when "necessary to allow the construction of a project of special merit." 2 Such "special merit" projects must provide "significant benefits to the District of Columbia or to the community by virtue of exemplary architecture, specific features of land planning, or social or other benefits having a high priority for community services." 3

In a special merit case, the Mayor�s Agent must first decide whether the proposed project meets one the three criteria of special merit established in the Act: (i) exemplary architecture, (ii) specific features of land planning, or (iii) social or other benefits having a high priority for community services. 4 If the project satisfies one of these three criteria, then the Mayor�s Agent must determine if the special merit project outweighs the harm to historic properties. 5 If the balancing test suggests to the Mayor�s Agent that the project�s benefits exceed the historic value of the historic property, then the Mayor�s Agent must also find that the work is "necessary" to allow the special merit project. 6

In determining whether a project�s "specific features of land planning" rise to the level of special merit, the Mayor�s Agent may look for consistency with the District of Columbia�s Comprehensive Plan. 7 The Mayor�s Agent justifies this reliance on the Comprehensive Plan because it "provides an objective statement of planning goals affirmed by the Council." 8

For example, in the McMillan case, the Mayor�s Agent found that a mixed-use redevelopment project at the historic Army Corps of Engineers McMillan Sand Filtration Site constituted a project of special merit for reasons of specific features of land planning as well as community benefits. 9 The Mayor�s Agent cited the "substantial amount of carefully planned public park open space" that "conveys the engineered character of the site and protects important views." 10 The Mayor�s Agent identified a number of aspects of the project that advanced goals of the Mid-City Element of the Comprehensive Plan: contiguous open space, restoring above ground historic elements, mixed-use development well adapted to the location, and affordable housing. 11 Aspects of a development proposal that do not meet "previously publicly identified needs" for a site but that nevertheless contribute to the project�s economic and aesthetic success�such as two healthcare office buildings at the McMillan site, for example�do not factor in the balancing test. However, failure to meet one or two goals of the Comprehensive Plan will not preclude a special merit determination, so long as the project strongly fulfills other planning goals. 12

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1 D.C. Law 2-144, D.C. Code Ann. �6-1102 (2014)
2 D.C. Code Ann. � 6-1102(10).
3 D.C. Code Ann. �6-1102(11).
4 In Re: Application of 2228 MLK LLC and District of Columbia Department of Housing and Community Development, HPA Nos. 14-221 and 14-222 (October 28, 2014) (the "Big K").
5 See Committee of 100 on the Federal City v. D.C. Department of Consumer and Regulatory Affairs, 571 A.2d 195, 200 (D.C.1990) ("the balancing of the historic value of the Woodward Building against the special merits of the project could not proceed until the Mayor's Agent found that the amenities proposed by S.J.G. were sufficient to constitute a project of special merit," which they were not).
6 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 5.
7 Id. at 8. See also In the Matter of QC 369 LLC, 911 and 913 L Street NW, HPA Nos. 14-460 and 14-461 (January 27, 2015) at 3 (finding that a proposed mixed-use redevelopment in Anacostia would meet then urgent need for affordable housing emphasized in the Comprehensive Plan). See also, In the Matter of 2228 MLK LLC and DC Dept. of Housing and Community Development, HPA Nos. 14-221,14-222 (Oct. 28, 2014.
8 Application of Vision McMillan Partners LLC, HPA No. 14-393 (April 13, 2015) at 8.
9 Id. at 5.
10 Id. at 6.
11 Id. at 8.
12 Id. at 9.

XXV. Special Merit - Exemplary Architecture

The District of Columbia Historic Landmark and Historic District Protection Act ("the Act") 1 recognizes the limited need for new construction in historic areas and allows for the demolition and alteration of landmarked or contributing buildings to historic districts in very narrow circumstances. Specifically, the Mayor�s Agent may permit such demolition or alteration when it is "necessary in the public interest" such as when "necessary to allow the construction of a project of special merit." 2 Such "special merit" projects must provide "significant benefits to the District of Columbia or to the community by virtue of exemplary architecture, specific features of land planning, or social or other benefits having a high priority for community services." 3 While creating a special exemption within the Act for �exemplary architecture,� the Act does not define the term.

As a result, the application of the special exemption has varied over time and has been used only rarely. In the initial cases in the 1980s, the Mayor�s Agent was willing to find exemplary architecture on a more limited factual basis than would probably suffice today. As the standard has grown stricter, only a few buildings have successfully obtained a special exemption on the basis of exemplary architecture.

In the early days of the Act, the Rhodes Tavern case probably constitutes the nadir of exemplary architecture analysis. In Application to raze 1429 F. Street, NW (Rhodes Tavern), HPA No. 80-41 (1979), the Mayor�s Agent approved the demolition of historic Rhodes Tavern to allow the construction of a new building that would incorporate the facades of the adjoining theater and bank buildings, also to be demolished. The Mayor�s Agent noted that the project�s plans started before the enactment of the Act and concluded that �the alteration is one of exemplary architecture because of the sensitive incorporation of the facades ... into the total project. The facades of these two structures create a major design impact at one of the most strategic locations.� 4 On appeal, the District of Columbia Court of Appeals upheld the determination but said the Mayor�s Agent in the future should record with �a higher degree of precision which historical values associated with a particular landmark were considered�.� 5

In connection with the decision in the Rhodes Tavern case, it should be noted that at the time Washington was desperate to secure first class downtown office development and the conspicuous location of the proposed project was on the Presidential Inauguration route. It was hoped that a large new office building would jump start downtown economic development. It should also be acknowledged that at the time, the preservation movement in Washington was in its infancy and preservationists thought that preserving facades of historic building was infinitely better than having the whole building demolished.

In another early case, Application for Demolition and New Construction Located at 601 13th Street, NW (Homer Building), HPA No. 83-478 (1984), the Mayor�s Agent found that a proposal to build a new office building which would include the historic Homer Building was a case of exemplary architecture. In this case, �the design evolves from that of the Landmark base and is an extension and completion of the original design, going far beyond what is usually meant as a compatible addition.� 6

Also in the 1980s, the Archdiocese of Washington sought to renovate and demolish portions of several rowhouses on the 1700 block of Rhode Island Avenue in the Dupont Circle Historic District and build a large office building behind them. The Mayor�s Agent allowed the special merit project for reasons of exemplary architecture. 7 In the conclusions of law, the Mayor�s Agent noted that the design would protect the �visual dominance of St. Matthew�s Cathedral, sympathetically linking the two buildings in architecture while minimizing the visual impact of the new building on the cathedral and the surrounding area.� 8 The design furthermore would complement �the scale, character, fenestration and color of the existing buildings� and establish �a strong relationship between the proposed building[s] and the historic site.� 9

Since the three cases noted above, fa�adism�preserving just the fa�ade of a building�has fallen out of favor as a preservation method, it is highly unlikely that these cases, especially Rhodes Tavern, would be decided the same way today. Indeed, under current thinking, more than mere fa�ade preservation is needed to obtain the special exemption. 10 In the St. Patrick�s case, the Mayor�s Agent agreed with the HPRB that �the proposed demolition of the seven historic commercial buildings, even taking into account the retention and restoration of the fa�ades, is not �consistent with the purposes of the Act.�� 11

Since the St. Patrick�s decision, above the Mayor�s Agent has allowed only two special merit exemptions based on exemplary architecture. In one of these cases, the Mayor�s Agent granted a demolition permit to the Corcoran Gallery of Art so that it could construct a new gallery wing designed by the famous architect Frank Gehry. 12 The Mayor�s Agent called the design �exceptional, innovative architecture that is well integrated with the current landmark.� 13

While the Gehry wing was ultimately scrapped for lack of funds, another project approved the same month�a massive expansion of the Arena Stage in Southwest�was built. Arena Stage was a landmarked 1961 concrete structure, and the architect�s plans called for enveloping the building in a steel and glass shell. In this way, the design is similar to the Sir Norman Foster-designed renovation of the Reichstag in Berlin. The Historic Preservation Review Board, while stating demolition was inconsistent with the Act, nevertheless noted that this was a project worthy of the �necessary in the public interest� exception for exemplary architecture. 14 The decision also underscored that a design from a world-renowned architect need not be a requirement for the exemplary architecture determination.

Applications for exemplary architecture exemptions must be quite specific as to new architecture, 15 and not merely compatible with the historic district. Several cases have reiterated that designs must be exemplary, not merely compatible. 16

In addition, a recent case noted that exemplary architecture is not simply �high end� or more expensive architecture but must include bold and innovative improvements and represent �design work of the highest caliber.� 17

For additional insight, see the following article:

Egleston, Pamela, �The Exemplary Architecture Exception to the District of Columbia Historic Landmark and Historic District Protection Act� (2004). Georgetown Law Historic Preservation Papers Series, Paper 13, available at:

http://scholarship.law.georgetown.edu/hpps_papers/13.

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1 D.C. CODE � 6-1102 (2014)
2 See D.C. CODE � 6-1102(10) (2014)
3 D.C. CODE � 6-1102(11) (2014)
4 Application to raze 1429 F. Street, NW (Rhodes Tavern), HPA No. 80-41 (1979) at 7.
5 Id at 717.
6 Application for Demolition and New Construction Located at 601 13th Street, NW (Homer Building), HPA No. 83-478 (1984) at 7.
7 See In re 1717, 1719, 1721 and 1723 Rhode Island Avenue, NW, HPA No. 87-147, 148, 149,150 (1987).
8 Id at 8.
9 Id.
10 See In re the Archdiocese of Washington (St. Patrick�s), HPA Nos. 99-219, 220, 221, 222, 224, 225, 226, 285 (1999).
11 Id. at 14.
12 In re Application of the Corcoran Gallery of Art for Partial Demolition of 500 17th Street, NW, HPA No. 02-284 (2002).
13 Id at 3.
14 See D.C. CODE � 6-1102(10) (2014) for definition of �necessary in the public interest�.
15 See In re Bond Building, HPA No. 81-521 (1981).
16 See In re the Woodward Building, HPA No. 86-729 (1988); In re Turkish Chancery, HPA No. 87 (1988).
17 See In re: Application of Embassy Real Estate Holdings, LLC (former Italian Embassy), HPA No. 06-171 (2006).

XXVI. Subdivision

The term "subdivision" refers to the process by which a parcel of land is divided or assembled into one or more lots for the purposes of sale and development. 1 Under the D.C. Historic Landmark and Historic District Protection Act ("the Act"), preservation is not confined to the bricks and mortar of a contributing building or landmarked structure but extends to their sites (setback, greenery, etc.). According to the D.C. Court of Appeals, "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." 2 As a result, the Mayor�s Agent and the Historic Preservation Review Board ("HPRB") "are authorized to consider the entire site on which the structure sits"� the historic structure as well as the land. 3

The approval of the Mayor�s Agent is needed for a property owner to subdivide a historic landmark or contributing property in a historic district. 4 The Mayor�s Agent can approve a subdivision if it is necessary in the public interest or if failure to subdivide would result in an unreasonable economic hardship for the owner. 5 The term "necessary in the public interest" means "consistent with the purposes of this subchapter as set forth in � 6-1101(b) or necessary to allow the construction of a project of special merit." 6

In a complex case involving the subdivision of the historic Tregaron Estate, 7 the applicant sought to subdivide a 14-acre parcel in the middle of the Cleveland Park Historic District to create eight record lots for the purpose of developing eight single family residences. 8 In order to minimize the impact on the landmarked Estate, the assessment and taxation lots for seven of the eight houses would actually be smaller than the record lots. 9 The parcel to be divided constituted the historic landscape setting, designed by Ellen Biddle Shipman, for the estate�s historic mansion house designed by Charles Adam Platt. 10 The Mayor�s Agent concluded that the subdivision was necessary to build a project of special merit.

The subdivision would allow the conveyance of approximately 10 acres to the nonprofit Tregaron Conservancy, which would use the funds from the sale of the new residences to restore and protect the landscape for future generations. 11 The Mayor�s Agent noted that while the Historic Preservation Review Board ("HPRB") believed "residential construction on the site is inherently inconsistent with the character of this designed landscape, through careful siting, massing, design, landscaping and proposed construction techniques, the conceptual proposal for eight houses is exemplary in terms of its architecture and land use planning in minimizing the impacts of those houses on the landscape." 12 The HPRB concluded that the landscape rehabilitation at Tregaron "would constitute an unusual and substantial historic preservation accomplishment with clear benefits to the public." 13 Consequently, the Mayor�s Agent approved the subdivision as a project of special merit.

In another case, the Mayor�s Agent denied an application to subdivide the landmarked Williams-Addison house and grounds in the Old Georgetown Historic District. 14 The applicant sought to subdivide the 1858 property into two lots and build a single-family residence on the newly created lot. 15 The applicant claimed that the subdivision would "retain and enhance" the character of the landmark property because of a promise to donate a conservation easement on certain portions of the property. However, the Mayor�s Agent found the proposed draft (and unsigned) conservation easement insufficiently protected the open space on the property. 16 Moreover, the subdivision would forever alter one of the few remaining examples of 19th Century development patterns in Georgetown, thus degrading the character of the landmark. 17 The Mayor�s Agent denied the application, determining the subdivision would not actually "retain and enhance" the landmark as required by D.C. Code �6-1106(b)(2). 18

As a secondary issue in the case, the Mayor�s Agent also determined that he has jurisdiction under the Act over the creation of assessment and taxation lots (and not just record lots) because they constitute theoretical building lots. 19 The Mayor�s Agent noted that the D.C. Council amended the Act in 1990 to tighten a potential "loophole" and to strengthen the Act�s regulation over subdivisions. 20

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1 D.C. Code �6-1102(13).
2 Gondelman v. D.C. Dep�t of Consumer & Regulatory Affairs, 789 A.2d 1238 (D.C. App. 2002).
3 Id.
4 D.C. Code �6-1106(e).
5 Id.
6 D.C. Code �6-1102(10).
7 In RE: Application for Subdivision Tregaron, HPA No. 04-145 (Mar. 30, 2006).
8 Id. at 1.
9 Id.
10 Id. at 2.
11 Id. at 2.
12 Id. at 4.
13 Id. Aiding the work of the HPRB and Mayor�s Agent was that the parties, after years of fighting, had been nudged into a comprehensive settlement by the HPRB. This extensive agreement, in an unusual step, had been incorporated into the Mayor�s Agent�s decision. Interestingly, only two of the allowed houses were subsequently built, and those fronted Macomb St.
14 In the Matter of Application of Equity Appreciation Partners Capital Fund 1 LLC for the Subdivision of the Williams-Addison House, HPA No. 07-267 (July 7, 2008).
15 Id. at 1.
16 Id. at 11.
17 Id. at 16.
18 Id. at 11.
19 Id. at 13 (citing D.C. Code �6-1101(13)).
20 Id. at 14.

XXVII. Windows

Windows can be important character-defining elements of a contributing building in a historic district or landmark. Like other architectural details, windows provide a sense of scale, craftsmanship, proportion and styling. They also usually comprise more than a third of the surface area of a building's principal fa�ade. 1 Character-defining windows on contributing or landmarked structures are subject to close review under the D.C. Historic Landmark and Historic District Protection Act ("the Act").

To assist property owners navigate the regulations regarding window replacement on historic properties, the Historic Preservation Review Board (HPRB) adopted regulations in 2011 (DCMR Title 10-C, Chapter 23). The HPRB also released an illustrated guidance document. 2 The Guidelines favor restoration of existing historic windows over replacement. 3 But when a window must be replaced, the replacement should replicate the appearance of the original. A permit is needed to replace windows in a contributing building in a historic district or in a landmark. 4 A property owner can obtain an "alteration" permit to replace windows on a protected historic building if issuance of the permit would be consistent with the purposes of the Act. 5 According to applicable regulations, when replacing windows that date from the construction of the building, the replacements "shall be approved if they reasonably match the historic windows in all respects�configuration, method of operation, profile, dimensions, material, and finish." 6

In a recent case involving 3101 M Street NW, 7 the Mayor�s Agent found that replacement windows must match the historic windows, and not merely the windows to be replaced (which in many cases may not be original). In this case, the owners�before obtaining any permits�ordered windows that were substantially similar to the previous windows: wooden, double-hung, nine-over-nine pane and six-over-six pane windows. 8 When the owners did apply for a permit, a 1959 photograph showed the building with all two-over-two windows and arched top sashes on the windows on the M Street facade. 9 The applicants were told that their proposed nine-over-nine and six-over-six windows, while similar to the existing (non-original) windows, were nevertheless not historically appropriate and that two-over-two windows with arched top sashes should be used. 10 The Mayor�s Agent found that the 1959 photograph identified two-over-two windows as historically consistent, so approving other windows designs would not be consistent with the purposes of the Act. 11

When character-defining windows are considered "historic" and "special" windows in a "major" contributing building, the review of window replacement is quite stringent. 12 The regulations define a "major" contributing building as one "individually distinguished by characteristics like symbolic value, visual prominence, substantial size, architectural elaboration, or historical association"�in other words, a building that in all likelihood would be eligible for landmark status on its own. 13 In World Mission Society, Inc. (Church of God), 14 the Mayor�s Agent denied a church�s request to remove the stained glass windows in its recently-purchased Romanesque Revival Capitol Hill church. The World Mission Society�s core beliefs held that its members cannot worship in spaces whose windows depict shapes in stained glass. 15 The Mayor�s Agent first ruled that keeping the windows would not be a substantial burden on religious exercise under the First Amendment to the U.S. Constitution or the Religious Land Use and Institutionalized Persons Act (RLUIPA). 16 Then he concluded that the windows were an important exterior feature whose removal would not be consistent with the Act and that the church should have engaged in a bare minimum of due diligence before buying such an obviously contributing property in the Capitol Hill historic district. 17

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1 10-C DCMR �2300.1.
2 D.C. Historic Preservation Review Board, Window Repair and Replacement: Preservation and Design Guidelines (2011), available at http://planning.dc.gov/sites/default/files/dc/sites/op/publication/attachments/HPO%20Window%20Guidelines.%2010%202011.pdf
3 10-C DCMR �2300.2(b).
4 10-C DCMR �2305.2 (citing D.C. Construction Code at 12 DCMR � 107
5 D.C. Code �� 6-1105(f), 6-1102(10).
6 10-C DCMR � 2308.2.
7 In the Matter of: 3101 M Street NW, HPA No. 13-373 (Feb. 21, 2014).
8 Id. at 1.
9 Id.
10 Id.
11 Id. at 2.
12 In the Matter of: World Mission Society, Inc. (Church of God), HPA No. 12-263 (June 13, 2013) at 1.
13 10-C DCMR �2307.1.
14 Id.
15 Id. at 1.
16 Id. at 5.
17 Id. at 4.