(Due to the webmaster’s error, the piece that published at 9 a.m. was not the version approved by the authors. We take full responsibility and apologize.)
by Andrew K. Stevenson and Julia Kampelman Stevenson
When the current National Historic Preservation Act was enacted in the mid-1960’s, its clear and noble intent was to protect and preserve significant parts of the American cultural and historic heritage. However, since then at the local level there has been a disturbing trend to use the regulations generated by this law as a means to impose restrictions on unwanted development.
Too often, in our view, implementation of the law has become a tool for restricting changes to the built environment of a neighborhood. In the process the legitimate rights of individual homeowners and other property owners have been compromised, and it could be argued the healthy evolution and potential growth of the city stymied. This was not in the intent of the law and we believe it is an abuse of its purpose.
As with many regulations involving land and buildings there is an inherent and immediate conflict with private property rights. To what extent is it permissible to limit what a private property owner can do with their property? In the public and commercial realms it is easier to see a role for establishing reasonable limits when these types of decisions create the public space and affect so many people. However, at the level of the private home and the neighborhood this is decidedly less clear – particularly when it involves designating someone’s private home as a historic landmark or designating a neighborhood as a historic district.
We are all part of history and the general tendency for neighborhoods to resist change needs to be tempered with strong protections for the rights of property owners, including those of institutions and developers and spec builders, the latter two of whom to this day have built the vast majority of housing in the U.S. and also in Forest Hills.
While this has become an issue in communities elsewhere in the country and in the District, we believe there also have been instances within Forest Hills where a successful landmark designation application has been used as a tactic employed by individuals and community groups to prevent either unwanted or feared changes.
An example of this was designation of the Owl’s Nest (located on Gates Road) as a DC landmark in April of 2001. The Jewish Primary Day School owned the property at the time and was planning to locate their campus there in the face of some fierce neighborhood opposition spearheaded by the Forest Hills Forest Hills Neighborhood Alliance (FHNA) and the Forest Hills Citizens Association, which were opposed to a “commuter school.” There were the usual concerns about traffic, and the school would likely have faced a battle to obtain the needed special exception from the BZA in order to locate a private school in this residential zone; however, it seems unlikely that a landmark designation application filed by the FHNA right at that time was just a coincidence and solely motivated by the merits of the property as a historic landmark. Since the school’s plans for the property involved razing the existing structure to build what they wished (indeed they had already obtained a DC raze permit), having the property designated a landmark would scotch the school’s project.
More recently the FHNA applied for and succeeded in having the house at 3020 Albemarle Street designated a landmark over the strong objections of the owners. We suspect that the FHNA’s aim had as much to do with eliminating the possibility that the building could be torn down as it did in arguing the merits of the architecture. As one of the Historic Preservation Review Board (HPRB) members in opposing the designation stated: “Based on the testimony that I’ve heard, either this is the most important building of Horace Peaslee (the architect of 3020) or it’s the least important building of Horace Peaslee.”
Now there is a lawsuit in DC Superior Court involving the FHNA, private individuals and several DC employees. Presumably as DC residents we are all paying for the defense of the DC employees named in this litigation. 3020’s qualifications as an architectural landmark are highly debatable. While it is a nice enough older building that, all things being equal, we might not like to see torn down, it does not rise to the level of a historic landmark and therefore is not so important that we as a community should compromise a fellow neighbor’s private property rights in order to see it preserved.
Indeed, these restrictions could be considered a “regulatory taking” and could have serious financial implications for the owners when they go to sell it (it will likely lower the price) or have to do any construction work on it, including basic maintenance items such as windows and doors. It is quite possible that a large portion of the community, had they been asked, would have thought twice about this and objected to a fellow neighbor being so appallingly treated in this fashion. A fairer approach would have been for those in the neighborhood who felt strongly about preserving this house to band together and purchase it (it was after all on the market at the time), much like neighborhood groups in Cleveland Park, DC and Bradley Woods, Bethesda did when they feared a particular type of development.
In addition to neighborhoods and neighborhood groups there are a number of constituencies that have an interest in historic preservation designations and the increased building regulation that comes with them. For obvious reasons there is primarily the property owner. As mentioned there is the neighborhood, some of whose members may abut the property and others who may have concerns that their own property could be the next target of a landmark application.
There also is the city as a whole. All of these actors have an interest in what development takes place up close in our neighborhoods. For example, a neighborhood near a Metro line may desire to keep things the way they are, but from the city’s point of view, how are larger urban growth, traffic congestion and pollution issues going to be effectively addressed if individual neighborhoods alone are given the final say on whether or not increased residential density is located near major mass transportation routes? Presumably as a community we would want to encourage such “smart growth” efforts and not obstruct them, but a property owner next to the project will likely have a different view.
There is a case to be made that the current law is far too broadly written and does not contain specific enough language or mechanisms to prevent its misuse. Under the law it is just not difficult enough to file these applications and push them through. For cases involving historical sites there is no clear definition to help in the evaluation of a given application, and the same is largely true for architectural landmarks. In the latter case there has been a lot of work created for architectural historians acting as hired guns to argue the merits of either side of a particular question; and as shown in the case of 3020 Albemarle Street, in our opinion, the HPRB is not above a mistake in judgment. HPRB is a nine-member appointed board requiring a quorum of only five members. Hence in the 3020 decision it took only three members to seal that homeowner’s fate.
Would it perhaps be fairer to at least insist that the full board be asked to vote on what is, for the homeowners, so significant a decision? Should the owners themselves be consulted and ultimately have veto power over whether or not their family estate is declared a landmark? For many Americans the family home is the most significant financial asset passed down to their children.
Another unfair aspect of regulations is that in the case of a landmark designation there is apparently no effective appeal process short of litigation. A historic district designation can be appealed to the Mayor’s Agent; however, should not a much more robust appeal process be allowed whenever the private property rights that are at stake are so high? Furthermore, in the cases involving historic districts and landmark designations, should not all in the neighborhood be allowed to express their opinion on these issues in something like a plebiscite perhaps conducted by the ANC through some sort of house-to-house list serve? These are after all regulations that are implemented by the Historic Preservation Office, an unelected administrative body, which can become either too distant from or too closely aligned with particular local political sentiment and which could benefit from hearing alternative points of view during the whole process rather than just at a final public hearing.
Recall what happened in Chevy Chase, DC 10 or 12 years ago when a small neighborhood group sought to have the whole neighborhood designated a Historic District only to be roundly rebuffed in a nasty, neighborhood-wide squabble when the rest of their neighbors finally learned about it. It is vital that these broader constituencies be given ample opportunity to weigh-in on these types of issues, since neighborhoods are not improved by such fractiousness.
Forest Hills Connection is a project of the Forest Hills Neighborhood Alliance. The views expressed in this article are those of the authors.
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