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GOVERNMENT
OF THE
OFFICE OF PLANNING,
HISTORIC PRESERVATION OFFICE
____________________________
IN THE
MATTER OF: )
)
Brian
E. Rich )
Square 1291, Record
)
____________________________
)
DECISION
AND ORDER
BACKGROUND
This matter came before Rohulamin Quander, Senior
Administrative Law Judge and the Mayor's Agent for Historic Preservation (the
"Mayor's Agent") on January 16, 2008. The real property is located at
3401 Dent Place, N.W., Washington, D.C., and is known of record as Lot 208 in
Square 1291 (the “Property”). The administrative hearing was conducted in
accordance with the requirements of Title 10A of the District of Columbia
Municipal Regulations ("DCMR"), and Chapters 1-99 and the District of Columbia Administrative
Procedure Act, D.C. Official Code
(“D.C. Code”) § 2-509 (2001). The
record closed on January 16, 2008, upon the conclusion of the administrative
hearing.
The record reflects that on August 16, 2007, the
Applicant filed with the D.C. Department of Consumer and Regulatory Affairs,
Application 07-383 (OG 07-248) for a permit to install new planter boxes, entry
patio, and window alternations on a single family dwelling located at 3401 Dent
Place, N.W. The property is located on the corner of
Pursuant to the District
of Columbia Historic Landmark and Historic District Protection Act of 1978,
as amended (the "Act"), D.C.
Code § 6-1101 et seq. (2001), the
matter was referred by the District of Columbia Historic Preservation Review
Board (the “HPRB”) upon the Recommendation of Denial issued to the Mayor’s
Agent by the U.S. Commission of Fine Arts (the “CFA”) on September 21, 2007.
On
October 17, 2007, the Historic Preservation Office of the D.C. Office of
Planning (the “HPO”), notified the Applicant in writing that his previously submitted
plans for the alternations had not been approved, based upon CFA’s
determination that the proposal was incompatible with the existing historic
streetscape pattern of Georgetown. Although the HPO’s letter of October 17th
did not enumerate the same degree of detail as stated in the CFA Recommendation
of Denial, the Mayor’s Agent presumes that a copy of the CFA letter, dated
September 21, 2007, was provided to the Applicant.
Separated into specific
components, the CFA’s recommendation observed that the Applicant had completed
some aspects of the changes prior to seeking and gaining approval or permits,
noting that:
The Applicant filed a timely appeal on October 30,
2007, asserting in his appeal letter that the work proposed was consistent with
the historic preservation law, and that the compatibility both enhances the
property and the character of the historic district as a whole. The letter did
not acknowledge or make any reference to work that was already completed, or
any completed work that was allegedly at variance with existing approved
permits.
Present and testifying at the hearing, all in
opposition to the granting of the Application, were: Timothy Dennee,
Architectural Historian, HPO; Eve Barsoum, Staff Architectural Historian, CFA;
Ronald B. Lewis, ANC Commissioner, ANC 2E; and Barbara Zartman, representing
the Committee of 100 and Citizens Association of Georgetown. Although duly
notified of the date, time, and place of the hearing, Bryan Rich, Applicant,
did not appear. After waiting 30 minutes for him to show, in the event of some
unavoidable delay, the Mayor’s Agent proceeded with the hearing at 10:35 a.m.
Based upon
the evidence in the entire record of this proceeding, including all written and
oral testimony submitted at the administrative hearing and the recommendation
of the CFA, the Mayor's Agent concludes that the Application for planter boxes and entry patio should be DENIED.
According to documents submitted to the Mayor’s
Agent, a prior construction permit (B471669) was issued on April 20, 2005, for
the installation of a new door(s), plus new windows on three levels. Apparently
some of the alterations, but perhaps not all, were made pursuant to this
permit. Now, given the passage of time and the inclusion of “window alteration”
in the current permit application, filed on August 16, 2007, that component of
the Application that addresses window and door alteration is APPROVED, but only to the extent that
the to-be-installed window and door alterations must be in full compliance with
the directives of the HPO staff and the approved plans and permit.
ISSUE
The initial issue to be decided is whether the
Applicant has met the burden of proof to establish that the proposed alteration
of the entranceway to the residence at 3401 Dent Place, N.W., Washington, D.C.,
is consistent with the purposes of the Act, and that the installation would
enhance the property and the character of the historic district as a whole, as
asserted by the Applicant.
FINDINGS
OF FACT
The Mayor's Agent, having reviewed all of the
documentary evidence presented in this matter, and the sworn testimony of
several credible witnesses, and having reviewed the same and given the proper
weight to the testimony presented, now makes the following Findings of
Fact:
1.
In accordance
with D.C. Code § 6-1106 (the “Act”),
on August 16, 2007, the Applicant submitted an Application for Construction
Permits on Private Property to the D.C. Office of Consumer and Regulatory
Affairs, Building and Land Regulation Administration, to install new planter
boxes, entry patio, and window alterations at his single family residence,
located at 3401 Dent Place, N.W., Washington, D.C.
2.
Government
staff noted that the property address is located in the Georgetown Historic
District, and that the single family residential building is a contributing
building in the district.
3.
In a
pre-printed Transmittal Letter, also dated August 16, 2007, the Application was
forwarded to the Historic Preservation Review Board (the “HPRB”) as H.P.A. No.
07-383 (O.G. 07-248). The letter also recited that the Application was being
forwarded to the Commission of Fine Arts.
4.
On September
21, 2007, the CFA responded to the Mayor’s Agent, returning the Application
with a formal Recommendation against the granting of the Application.
5.
In a letter
signed by Frederick J. Lindstrom, Assistant Secretary. the CFA recommended
denial stated as follows:
The Commission regrets that work was initiated
prior to review and without a permit. Recommend AGAINST issuance of permit for as-built conditions of
alternation to entrance walkway and planting beds in public space, which are
not appropriate to this historic structure with a corner entrance. Existing
door and door surround must be retained. Double hung window on second floor, as
well as brick mold and half-screens on all windows, must be installed as
approved under case O.G.05-091. Planters must be returned to a condition
perpendicular to the exterior walls of the house and set back from the corner.
All corrective work must be completed by 31 December 2007.
6.
By letter
dated October 17, 2007, the Applicant was notified of the CFA’s recommendation,
and of his right to note an appeal with the Mayor’s Agent. The letter also
advised the Applicant that the burden of proving his case rested with him, and
outlined what the parameters were for providing sufficient evidence, including
in order to successfully argue that a proposed alteration was consistent with
the purposes of the Act, as noted in D.C.
Official Code § 6-1101 et seq. (2001).
7.
The Applicant
filed a timely appeal in a letter dated October 30, 2007. In the appeal letter,
the Applicant asserted that the proposed work was, “ . . . consistent with the
purposes of the historic preservation law. It is compatible with and enhances
the property and the character of the historic district as a whole.”
8.
The
administrative hearing in this matter was convened on January 16, 2008, at
10:35 a.m. The Mayor’s Agent waited 35 minutes, in order to give the Applicant
some extra time to appear. Although duly notified of the date, time, and place
of the hearing, the Applicant failed to attend. [1]
9.
Based upon the
testimony of Timothy Dennee, Architectural Historian and HPO staff, the Mayor’s
Agent makes the following findings:
a.
The official
written notice for the administrative hearing was mailed to the Applicant in a timely
manner via regular first class mail. Said notice was not returned to the HPO,
marked “addressee unknown,” “undeliverable,” or in any manner that would
suggest that the notice was not delivered by the U.S. Postal Service in a
timely manner;
b.
Applicant’s
address of record is
c.
Prior to the
hearing, the witness did speak to the Applicant on at least one occasion, and
also left a voice mail message on a telephone number of record, the effect of
which should have kept the Applicant’s attention with regard to the then
forthcoming hearing before the Mayor’s Agent;
d.
Although the
Applicant has couched this request for a hearing in the context of what is
“proposed,” he has essentially undertaken and completed most all of the work,
despite there being no authorizing permit for such;
e.
The issues of
the planter boxes place in a combination of public and private space, and the
failure to properly install the previously approved window(s) remains
unresolved. Although the flower beds existed on the property prior to the
Applicant’s ownership, he is seeking to extend the flower beds, including the
installation of a two-course and three-course brick perimeter, some of which
encroaches upon public space;
f.
The Applicant
installed a fixed window on the second floor, contrary to preciously filed and
approved plans, and said window must be replaced with a compatible, approved
one over one double hung window and sash;
g.
The chamfered
entrance that is characteristic of so many corner properties in this historic
district, has been or will be compromised if the Applicant is allowed to modify
the entranceway, as such requires explicit CFA approval prior to any such
change;
h.
With regard to
that portion of the house that faces onto 34th Street, all planted
areas from the line location of the bay, back towards the exterior wall of the
house, is private property, and can be compatibly landscaped by the Applicant/property
owner; and
i.
Conversely,
all visible areas from the exterior wall of that portion of the house that
fronts onto Dent Place is public space, and the Applicant may not subject that
space to his private and personal use without express written permission,
which, within the prerogative of the government, still might well not be
granted.
10.
Based upon the
testimony of Ronald B. Lewis, Advisory Neighborhood Commissioner for ANC 2E,
the Mayor’s Agent makes the following findings:
a.
Subsequent to
obtaining a construction permit(s), in 2005, or shortly thereafter, the
Applicant initiated the installation of a two- to three-course high brick
fence, some portion of which was apparently installed on the public space;
b.
During this
same general time frame, he also installed at least one non confirming window,
which was at variance with the previously approved window plans;
c.
The effect of
the Applicant’s method of operation has compromised the inviting architectural
character of the entrance to his corner property, as his impermissible efforts
have eliminated or reduced the invited and welcoming appearance that chamfered
entrances are specifically designed to convey;
d.
In response to
complaints from the ANC, the OGB, and other community organizations, Tony
Cherry, an HPO building inspector, visited the site. She observed the
Applicant’s non compliance with both the approved building plans and permit,
and the general regulations that govern construction in an historic district.
She then issued a Stop Work Order;
e.
The Applicant’s
attitude continues to be one of defiance, electing to initiate unapproved or
non conforming installations or construction, which only exacerbates all
efforts to achieve the Applicant’s voluntary cooperation;
f.
The witness
presented a statement reflecting that ANC 2E has registered its unanimous
objection to the Applicant’s actions and method of operation on at least three
official occasions, i.e., duly constituted ANC meetings conducted on June 5,
2007, September 4, 2007, and January 2, 2008. Each time the ANC voted or
sustained its opposition to the installation of a private patio on the public
space, and requested that the patio be removed; opposition to the two- and
three-course fence; and urging OGB to require the Applicant to install a
suitable window, as indicated in previous plans and issued permit. The
Applicant has in essence ignored everyone, and is still not in compliance; and
g.
Pursuant to
D.C. Official Code § 1-309.10(d) , the position of the ANC is entitled to be
given “great weight” consideration, and such consideration is now being
requested.
11.
Eve Barsoum, a
member of the CFA staff, and Barbara Zartman, Committee of 100 and Citizens
Association of Georgetown, each testified in opposition to the application and
on behalf of their respective organizations.
12.
The term
“necessary in the public interest” is defined in D.C. Code § 6-1102(10) as “consistent with the purposes of this
subchapter, as set forth in D.C. Code
§ 6-1106(b), or necessary to allow for the construction of a project of special
merit.” The Applicant has not asserted
that the subdivision is either necessary to construct a project of special
merit or that the denial will result in unreasonable economic hardship. Rather,
the Applicant only claims that the subdivision is consistent with the purposes
of the Act.
DISCUSSION
The Applicant, who bears the burden of proof to
establish that the proposed subdivision of the landmark is necessary in the
public interest, failed to attend the hearing when scheduled, and to put forth
a case to sustain his burden. Pursuant to § 1-309.10(d) of the D.C. Code, the three recommendations of
the ANC, that were adopted on three separate occasions, each time in opposition
to the granting of the application, are entitled to "great weight"
consideration by District agencies. The Mayor’s Agent credits the ANC’s
objections to the subject Application and accordingly assigns the required
“Great Weight.”
The evidence demonstrates that the Applicant has consistently
engaged in a pattern of non compliance. He has ignored OGB, CFA, and the ANC.
Now he has also ignored the HPO and the Mayor’s Agent, by electing not to
appear at the latter’s convening of the administrative hearing, which was
specifically scheduled at the Applicant’s request. At the behest of both HPO
and the ANC, the Mayor’s Agent, weighing all the evidence presented during the
hearing, and finding the sworn testimony of four witnesses to be both credible
and consistent with the law, granted the request, and issued a bench decision
ruling at the conclusion of the proceedings.
The Mayor’s Agent cannot condone the pattern of
action that the Applicant has undertaken, whereby he has engaged in a course of
conduct that has either been completed without a permit, or not in conformance
with the permit that has been issued. Likewise, the Mayor’s Agent rejects the
Applicant’s intrusion into public space, as has been the characterization of
the construction of the patio and the two- and three-course brick barrier
fence.
CONCLUSIONS
OF LAW
Based on the foregoing Findings of Fact and
Discussion, the Mayor's Agent concludes that the Applicant has failed to meet
his burden of proving that the requested alteration to the entranceway of his
residence at 3401 Dent Place, N.W., Washington, D.C., is necessary in the
public interest, in that the requested adjustment to the site is consistent
with the purposes of the Act, as stated in D.C.
Code § 6-1105(f). The Mayor's Agent concludes that the Applicant has not
claimed, nor has he demonstrated, that the project is one of special merit. Nor
is there economic hardship indicated.
Further, the Applicant has likewise asserted that,
pursuant to D.C. Code § 6-1106(b)(2),
the granting of his request is compatible with, and will both enhance his
residential propriety and the character of the historic district as a whole.
Other than the bare assertion, he cites no legal authority for this position,
and likewise failed to put his legal position on the record.
Consistent with the provisions of D.C. Code § 1-309.10(d), the Mayor’s Agent will accord “Great Weight”
consideration to the position of the ANC, which is a Party of record opposed to
the granting of this Application.
ORDER
Accordingly, it is this 2nd day of May, 2008,
ORDERED that the application filed by the Applicant on
August 16, 2007, for the installation of new planter boxes and entry patio, is
hereby DENIED; and, it is
FURTHER
ORDERED that the application for
window alterations, which was submitted and listed on the same permit
application, is GRANTED, with the
Applicant directed to work closely and directly with the HPO staff, to assure
that the selected windows are compatible with the windows that are currently in
place, and likewise compatible with the window installation requirement that
are operable in the Georgetown Historic District; and it is
FURTHER
ORDERED that the Applicant may not
make any changes to the front entrance of the property, including the
installation or modification of the front entrance door, unless and until said
changes are considered and specifically approved by the staff of the CFA and/or
the HPO; and it is
FURTHER
ORDERED that, pursuant to the D.C. Code § 6-1112(a) (2001) and 10A DCMR
§ 2523.4, this Order shall take effect fifteen (15) days from the date of
service as evidenced by the attached Certificate of Service pursuant to 10A
DCMR § 2523.5(c).
_/s/
Rohulamin Quander__
ROHULAMIN
QUANDER,
Senior
Administrative Judge, and
Mayor's Agent for Historic
Preservation
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Decision and Order was served this 2nd day of May 2008 by mailing a copy of the same via either electronic D.C. Government inter-office mail or via U.S. Mail, postage prepaid, or both, to the following:
|
Brian E. Rich, pro se Applicant David Maloney, HPO Historic Preservation Office e mail - david.maloney@dc.gov
Tersh Boasberg, Esquire, Chair Historic Preservation Review Board e-mail – Tershboasberg@aol.com Ronald B. Lewis Advisory Neighborhood 2E e mail – 2e@anc.dc.gov |
|
|
Janette Anderson Associate Director for Technical Services e mail - anderjan@law.georgetown.edu |
|
______________________________
Certifying Officer
[1] Several days later, the Applicant telephoned the
HPO and advised staff that he overlooked the hearing date, and forgot to
attend. Staff notified the Applicant that a bench decision had been issued by the
Mayor’s Agent, based upon the official record created during the hearing, and
that a written decision in support of the Mayor’s Agent’s determination would
follow.