Capitol Hill Restoration Board Goes to Court Over City Decision To Allow New Third Floor On 1887 Victorian Building
by Larry Janezich
In a case which could have broad implications for development in the city, the DC Court of Appeals heard oral arguments on Thursday over whether the city erred in approving a third story addition to a 1887 Victorian building in the Capitol Hill Historic District.
On June 17, 2008, the Capitol Hill Restoration Society (CHRS) Board voted unanimously to oppose the Heritage Foundation’s planned third floor addition to the former Trover’s Books building at 227 Pennsylvania Avenue, SE. The concerns were that the addition would detract from the appearance of the historic building, draw attention away from the historic details, greatly alter the basic character and appearance of the historic building and set a precedent for the entire Historic District. The Historic Preservation Review Board (HPRB) agreed, approving the third story only with a 25 foot setback from the building’s façade. The Heritage Foundation appealed the HPRB decision to the Mayor’s Agent, who overturned the HPRB recommendation, allowing construction to proceed. The structure was subsequently completed.
At issue is whether the Mayor’s Agent – in this case, DC’s Office of Planning Director Harriet Tregonning – acted in accordance with proper procedure in ignoring the recommendation of the HPRB against the proposed third story addition without a 25 foot setback.
Tregonning authorized the construction with a “slight” set back of a few inches at the bottom of the addition which slopes back to a several-foot setback at the roofline, saying that since Pennsylvania Avenue is so wide at this point that even a 25 foot set back would not make the addition invisible.
The Restoration Board’s attorney, Andrea Ferster, who has represented non-profit organizations in land use and historic preservation cases, argued the question was whether the Mayor’s Agent can disregard an HPRB recommendation as unpersuasive and not explain why. “The Mayor’s Agent just can’t say, ‘my judgment prevails.’”
The Mayor’s Agent was represented by Stacy L. Anderson, who under questioning by the court, admitted that the record did not show Tregonning rejected the HPRB recommendation on a rational basis, other than referencing the width of Pennsylvania Avenue. .
The discussion embraced the larger question of what the role of the HPRB and its guidelines are for prospective alterations to historic buildings. The position of the Mayor’s Agent is that each should be considered on its merits and that the recommendation of HPRB should be given no greater weight than experts testifying on behalf of the developer. “The statute gives it no special status, so the Mayor’s Agent owes it no special consideration.”
The Heritage Foundation was represented by Deborah B. Baum, of Pillsbury Winthrop Shaw Pitman, one of the city’s largest land-use firms. She pointed out that the then-sitting ANC had approved the proposed addition and that the project’s approval by the Commission on Fine Arts addressed the question of compatibility.
Under questioning, she admitted that there had been no testimony whether the setback was a strong financial disincentive, though she claimed that the disincentive was implied because the third floor space would have been reduced by 50%. This claim was disputed by Ferster, who said the space would have been reduced by less than 25%.
A favorable ruling by the Court of Appeals could result in dismantling the addition. As the court noted near the end of the arguments today, that since the third floor has been built, “we’re in don’t tear it down territory.”
The question of jurisdiction and whether the CHRS petition was filed in a timely manner accounted for considerable discussion, but the ambiguity of the statute on this point seemed to weigh in favor of the CHRS.
The CHRS raised $6,000 in contributions for a legal defense fund to fight Tregonning’s decision. The non-profit preservation organization has spent nearly $20,000 so far on this case.