Bid to Expand “Residence” near Capitol Building Ensnarls ANC Zoning Committee

106 North Carolina Avenue, SE - The white house with dormers where the owner wants more space.

160 North Carolina Avenue, SE – The white house with dormers where the owner wants more space.

Aaron Presnall (gesturing) makes his case to the ANC6B Planning and Zoning Committee

Aaron Presnall (gesturing) makes his case to the ANC6B Planning and Zoning Committee

Bid to Expand “Residence” near Capitol Building Ensnarls ANC Zoning Committee

by Larry Janezich

Tuesday, night, ANC6B’s Planning and Zoning Committee found itself entangled in a contentious dispute over a request to set aside zoning regulations to allow a new third story on the rear of a townhouse which is the office of a non-profit business.  The building, at 160 North Carolina Avenue, SE, sits on a residential block a stone’s throw from the US Capitol Building.  Nearby neighbors, who live on the historic residential block, are vehemently opposed to the addition.

The facts of the matter are as follows:

  1. Aaron Presnall has  applied to set aside zoning regulations for the new construction on an existing one family dwelling. The building is the office of The Jefferson Institute, an international nonprofit, which holds the deed to the property.  Presnall and his wife are the only employees, and claim the property as their primary residence – though they actually have lived in live in Chevy Chase, where their children attend school, since 2012.
  2. The criteria for setting aside regulations include the requirement that the applicant demonstrate that existing regulations provide an “exceptional and undue hardship upon the owner of the property.” BZA may grant a request for relief, only if “the relief can be granted without substantial detriment to the public good…”
  3. According to Presnall’s architect, if the request to relax the regulations is denied, there are other options to build by-right, but those ideas, he said, had not been “fleshed out.”

Neither Presnall nor his architect were prepared to discuss in detail the basis for the claim of “undue hardship.” Presnall’s stated reason for expansion of the residence is to accommodate his growing family – disregarding that they apparently do not live there now, and Presnall did not tell the Committee he intended to move them there.

Neighbor Lawrence Johnston, spoke in opposition to the application, on behalf of himself and the dozen or so neighbors in attendance.  Johnston pointed to numerous discrepancies in the application, emphasizing that it was the belief of the neighbors that the family had never lived there, and that it was actually and primarily the business office of The Jefferson Institute – as evidenced by the plaque on the front of the building.  He also pointed to the precedent setting nature of the request, claiming that approval of the requested variances would create an unacceptable precedent in a historic district.

Finally, Johnston asserted that the Presnall had not met the statutory test for a variance, citing the opinion of the Capitol Hill Restoration Society.  A report of the CHRS Zoning Committee which reflects the opinion of the CHRS states:  “The plan is to raise the existing rear sloping roof to 35 feet so it is not visible from the street.  The lot is large and contains 2425 square feet.  The house and garage already occupy 80% of the lot (1940 square feet).  The house currently has 4 bedrooms and one full bath.  When completed, there will be two full baths and three bedrooms.  The applicant is a family of two adults and two children.  The committee believed that the house was very large and that the applicant did not meet the test for a variance.  Refinishing the basement can provide for any amenities that applicant may want.”

The debate on the issue was heated. The Planning and Zoning Committee chair and former chair, Commissioners Nick Burger and Kirsten Oldenburg, supported approving the request for a variance.  Other commissioners on the committee including Chander Jarayman , Denice Krepp, Daniel Chao, and Diane Hoskins all expressed opposition to the application.

Burger moved to recommend that the full ANC support the request and to add language to a letter to BZA to express concern about the legitimacy of the occupancy permit for operating a business in the house (which is contingent on the building being the primary residence of the owner).  Burger told the committee that he was sympathetic to the neighbors’ concerns but, “My view is that this is a zoning case, and not a particularly exceptional one.  We have approved other requests that have had a lot more impact…I believe the applicant has passed the zoning test requirement.”  Oldenburg justified her support, saying, “I don’t want to go down the road that if we don’t live there you can’t change it.”  Resident member and former ANC6B Chair Ken Jarboe warned that the ANC had to consider the case “within the context of the regulations…we can’t be arbitrary and throw the regulations out the window.”  He said the other issues raised beyond interpreting the zoning regulations were irrelevant.

These remarks didn’t sit well with their fellow commissioners.  Jayaraman said the committee had to look at the entirety of the case, saying he did not think the applicant had met the requirements for relief.  He was joined by Krepp who said it would be a “disservice to our constituents if we do not take a broader view.”  Chao also disagreed with the notion “that we have to operate within the box.”

Commissioner Diane Hoskins said she thought the role of the ANC Burger was suggesting “is too narrow – it handcuffs us and makes the role of the ANC less relevant.”  Hoskins moved to recommend that the full ANC oppose the application pending receipt of additional information regarding the need for a variance.

The Hoskins amendment to the Burger motion was agreed to 7 – 4 – 1, with Commissioners Hoskins, Krepp, and Jayaraman, Chao, and Ridge supporting the amendment, and Commissioners Burger and Oldenburg opposed.  Commissioner Samolyk – in whose single member district the property resides – abstained.  (The other five votes in the total were cast by resident members.)  The matter now goes to the full ANC for consideration at its next meeting where only Commissioners may vote.

Capitol Hill corner spoke with Gary Peterson, chair of the Capitol Hill Restoration Society’s Zoning Committee regarding the Society’s opposition to the request for a variance.  Peterson is a former Department of Justice attorney specializing in eminent domain, and is an expert on DC zoning regulations. The CHRS generally takes a harder line about new construction in the Historic District.

Peterson said, “The problem is that the applicant has not shown the hardship. The house has a huge basement which the applicant actually uses as a bedroom.  It’s an immense house.  You can’t get increased space just because you want it.  It’s a four-bedroom house for two adults and two children, where’s the hardship?  What is the hardship preventing them from being able to use this house?”

ANC6B will meet on Tuesday, March 8, at 7:00pm in Hill Center.

For the BZA Rules of Practice and Procedure go here:   http://dcoz.dc.gov/bza/rules.shtm

 

12 Comments

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12 responses to “Bid to Expand “Residence” near Capitol Building Ensnarls ANC Zoning Committee

  1. freshaire

    I’m a little confused. Are the Presnall’s DC residents? What do the DC tax records show regarding the Presnall’s and their property? Is that property classified as a residence? How long have their children attended school in Chevy Chase? What do the Maryland tax records show regarding the status of their home in Chevy Chase? Are the Presnall’s running a business, i.e. The Jefferson Institute, out of a residence?

    • Lawrence A. Johnston

      I was the neighbor quoted in the article. (Larry Johnston at 170 N.C. Ave. SE). I can answer your questions, and it explains quite a bit of the outrage shown by the neighbors on the block. First, of all, I still remain puzzled as to how a couple of the members at the ANC Planning & Zoning Committee meeting thought the test for zoning variances has been met by the application, since no explicit explanation was given at the time. Instead, the P&Z Committee vote, as well as the earlier CHRS Zoning Committee vote, went correctly in favor of the neighbors’ position. In essence, we now have at 160 N. Carolina Ave., a property located in the middle of a residentially zoned block that is owned by a business and that is openly used by the business as its U.S. offices. The neighbors have obtained all the relevant property and tax records (including deeds, property tax records, and IRS Form 990). Simply stated, the house was purchased by the Jefferson Institute in 2011. Accordingly, a plaque installed out front advertizes that it is the location of the Jefferson Institute and the address is listed on the Jefferson Institute web site and IRS Form 990 as its U.S. offices. (It also has offices in Belgrade, Serbia.) Mr. Presnall, the principal officer, has so far tried to legitimize the Institute’s location of its offices there by somehow obtaining in his own name, as the “owner”, a Home Occupation Permit. But the neighbors are separately challenging that permit on the basis that, not only is he not the owner, he doesn’t even live there. This violates the requirement that the person operating his business at the location maintain the location as his “principal residence.” The neighbors have observed that Mr. Presnall has not lived there over the last 5 years because the house is regularly dark and empty in the evenings and on weekends. In fact, the neighbors have determined, by obtaining publicly available property and tax records, that Mr. Presnall and his family actually do own, and reside at, two other locations in the DC area, at another address on Capitol Hill and at an address in Chevy Chase, MD. This is confirmed by the deeds for those properties and the tax records that indicate the Mr. Presnall claims each of those other properties as his “principal residence” and he takes the DC homestead deduction at that other DC property. In fact, Mr. Presnall even listed the MD property as his address on his application for zoning variances for the Jefferson Institute property. Also, he has recently publicly stated at the CHRS Zoning Committee meeting on February 11 and the ANC Planning and Zoning Committee meeting on March 1 that he sends his children to school in Maryland, is registered to vote in Maryland, and has had a Maryland driver’s license. (He did say at the ANC Planning and Zoning Committee meeting that he recently changed his license to DC because of “difficulties” he had with his MD license.) And, now, Mr. Presnall has carried on with his misrepresentations by falsely claiming, in his application for variances, that he is the “owner”, that he uses the property as his single family residence, and that he needs to expand into yet another floor so that his children will be able to “stay in a house and neighborhood they love and not have to move to support their aging family”. For 5 years now, I did not even know those children existed, until Mr. Presnall tried to use them as justification for his application for variances. Given the large size of the house as it is, one can only wonder what is the real need for the proposed new top floor. Actually, the front 2/3 of the new floor will be taken up by new interior space, but it will open out onto a new deck on the rear third overlooking the Capitol Dome. Great view for whatever purpose is intended.

  2. Craig D'Ooge

    The Jefferson Institute needs to learn that the way to get ANC support for zoning variances is to give the ANC free meeting space, like the Heritage Foundation has done for years to ANC6-C. Works like a charm, and the votes to support the variance have always been unanimous.

  3. Sarah Livingston

    I can’t see the hardship at all in what has been reported and commented on. If it were being applied for because the non-profit organization needs a larger space to work in, that would make sense though I likely wouldn’t favor a larger work place in such a residential area. But it seems nothing even that clear is being offered to justify an exception. Very interesting case!

  4. Cap Hill Guy

    It seems like two issues are being rolled together in a confusing way. (1) if the residential exception to operate a business in your house is being flouted by a Maryland resident, then this should be remedied under the appropriate section of the housing code. (2) even if the addition is unwanted it seems unfair and bad policy not to grant if similar variances are routinely granted. As they said in ghostbusters: don’t cross the streams!

    (Also, as a former regulator myself I personally find the arguments about how people should choose to use space in their house a bit of an overreach.)

    • HillGirl

      if people chose to live in a historic district like Capitol Hill, they need to accept that there are restrictions on what you can do with your house. for that reason, I don’t have a problem with the comments on how the owners use the space in their house, especially as it gets at a possible hardship.

  5. Lawrence Johnston

    I agree that the fact situation in this case is indeed “confusing”. But it’s not a confusion that my neighbors and I created. It’s a confusion apparently deliberately created by Mr. Presnall. That doesn’t change the simple fact that to get variances, you have to file an application and that application has to be truthful. And if you go ahead anyway and consider the merits of the application, you have to meet a specific statutory standard to merit the variances. There is a burden of proof to be satisfied. That burden is on the applicant and the applicant fails that burden. (1) You have to assert something truly unique (i.e. “exceptional” or “extraordinary”) about the property in relation to the surrounding community and the applicant doesn’t. (2) That something that is unique, if you can show it, has to create “peculiar and exceptional practical difficulties to or exceptional and undue hardship upon the owner”. Of course Mr. Presnall is not the “owner” to begin with, but if he were, he is clearly suffering no hardship that needs to be “relieved”. The existing house is already large by Capitol Hill standards. His plans show that it’s wider than many on the block, has 3 bedrooms (1 of which is shown on the drawings as an office), and has 2 baths. But none of this includes the fully finished apartment that exists in his basement, which he cleverly excludes from his architectural drawings and which I recall had been rented out as an apartment by the previous owners. And, as I’ve already shown, he and his family simply do not live there, as clearly demonstrated by the facts. And (3) the relief has to be granted “without substantial detriment to the public good”. I could go on and on about the effect on the public good of the sight lines, the domino effect this could cause on the block with houses that have similar existing attics, and the increasing encroachment of business uses in residential blocks near the Capitol. I have yet to see Mr. Presnall make any kind of argument that meets these tests.

  6. Eric

    I’m curious. Is the opposition based on the falsification of documentation or would these alterations really “effect on the public good?”

    The article says much about how he doesn’t live here and is running a business, but little about the merits of the application (outside opposition to hardships and whether or not this place is “big enough”.) What’s the real reason it’s being so fiercely opposed? … I find it hard to believe that opposition is just based on neighbors being sticklers for the letter of the law.

  7. Lawrence Johnston

    Of course, it’s more than just being “sticklers”. First, of course we do want people to comply with the law, don’t we? But second, the Jefferson Institute is an intrusion of a business into the middle of a residential block. It is particularly scary because this part of the Hill is very near the Capitol. Nearby “residential” blocks have already become the playground for lobbying organizations and similar businesses that have similarly been able to manipulate the bureaucracy to take over those blocks. An additional floor in this situation would simply be an expansion of that intrusion. And, thirdly, the “public good” is threatened when damage is done to the fabric of the Historic District by additions that further add to the overbuilding that already has occurred, that can indeed be seen from the street, and that serve as templates for future construction at other similarly constructed houses that run up and down the block.

    • Eric

      If it’s visible from the street, wouldn’t it be denied by the HPO outright? That was my understanding of the rules when Barney Circle was being considered for historic designation. Perhaps each historical district is different.

      Curious, are you opposed to any business (non-profits or otherwise) from owning and operating out of an otherwise residential block?

      • Larry Johnston

        There are plenty of home-based small businesses located in residential blocks on the Hill that are operated in compliance with the zoning code under valid Home Occupation Permits. The business has to comply with certain limitations as to residency of the operator, size, number of employees, business traffic, etc. As I understand it, you can even occupy the residence as a tenant and run such a business out of it. I have no argument with those operations that meet the requirements which are intended to maintain the residential qualities of the neighborhood. But one key point is that regulations require that the residence can’t be used that way under such a permit if it is not also the “principal residence” of the person operating the business. Otherwise, there is a great opportunity for persons, be they corporations or otherwise, to plant someone into a residence in a residential zone and run it as a business with no real residential ties to the neighborhood.

      • Disclaimer: I do not live near this house, but I have lived on Capitol Hill for 25 years, fairly close in, and can say that this situation is not unique, but rather sadly typical. In that quarter century, I have seen all manner of businesses using residential buildings purely for office space, not housing. It’s a lot cheaper than commercial space, it’s conveniently close, and since many of us neighbors work, we may not easily notice or have time to follow up. In every case I know about on Capitol Hill, the first (and sometimes only) bulwark against this has been the oversight of neighbors–not the city officials charged with that oversight.

        In this case, there appear to be two issues: what is permitted by the building code (what Eric is discussing here, I think) and what is permitted for proper use of the building itself. Sadly, no one in our city government appeared to take notice of the latter. If they did, this application would not have gone as far as it did, wasting the time of ANC members as well as taxpayer money in handling the application process, much less wasting everyone’s time in discussing the merits of the design itself.

        While I am glad that the application was withdrawn, that only gets to part of the problem here, which is timely oversight by our city in ensuring buildings are used appropriately; that they are taxed appropriately; and that if someone like this applicant is going to claim residency at one DC address (the one in question here), there is no way for him to also claim (as he clearly has!) a homestead deduction on another DC house he owns.

        Perhaps the good folks in Maryland will now stew about him apparently dong the same thing to them, by sending his kids to Montgomery County public schools while owning a house in Maryland and simultaneously claiming residency there and in DC.