Preservation
The preservation process failed Third Church
On May 25, the Historic Preservation Review Board (HPRB) turned down the Third Church of Christ Scientist's plans to redevelop their church and office building, at 16th and I NW, into a new church and office building.
Image scanned from submission by ICG Properties.
The church and developer ICG Properties already have permission to tear down the Brutalist church structure. They were seeking concept approval for a new 9-story structure, which was scaled back from their original 11-story proposal. The hearing, and controversy, almost entirely revolved around whether or not a 9th story is acceptable at this site, part of the 16th Street historic district.
This case illustrates a number of the problems with the current historic preservation process. The Historic Preservation Office (HPO)'s staff report is filled with problems. It oversteps the bounds of proper preservation considerations, ignores precedent in reaching its conclusions, doesn't respond to the ANC, and just came out too late.
To give some background, HPO is a department of the DC Office of Planning with a full-time staff. Among other functions, they meet with people who apply for permits in historic districts, conduct research into the history of buildings, and issue written reports about redevelopment proposals.
HPRB, a group of 9 private citizens appointed by the mayor, makes decisions on cases. Department of Interior rules require certain members to have degrees or experience in architecture, archaeology, history, and so on, while other members can have any background. HPRB hears the case, listens to the applicant, HPO, and the public, and then determines whether a proposal is "compatible" with the historic district or landmark.
The decision in this case had many problems which the church can probably use to challenge the decision, if they choose. Some of the problems reflect flaws in the process itself, which will come up in other cases as well.
The staff position is inconsistent. The staff report primarily argues that there is a sacrosanct 90-foot cornice line on lower 16th Street, and that no occupiable space should go above there even if it's set back, as the owners suggested in their compromise plan. However, in 2007 the staff endorsed an occupiable rooftop event space for the Hay-Adams Hotel, one block away and closer to the White House.
HPO doesn't necessarily need to always come out exactly the same on each and every issue, but they should have cited that case and explained why they think this one is different.
Too many of HPO's and HPRB's decisions seem arbitrary and subjective. In most regulatory areas, there are set statutes and rules, and an agency's job is to interpret how the rules apply to the specific case. There are only a few historic guidelines HPO has developed over the years, and they're remarkably sketchy. Therefore, very few of HPO's decisions actually follow from written policies. This makes it difficult for anyone to plan an addition or new construction in a historic district.
The report strays too far into zoning. Former HPRB chair Tersh Boasberg used to cut off public witnesses who attempted to cite zoning rules at hearings. He would insist that preservation is not zoning, and point out that the board's only job is to decide whether a project is historically "compatible" or not.
This staff report smashed that wall. Rather than just discussing whether the proposal was "compatible," the report brought up the limits of the site's SP-2 zoning, and the fact that the Zoning Commission would have to rezone the property and grant a Planned Unit Development (PUD) to make the proposal work.
At least some members based their decision on this zoning language. Gretchen Pfaehler, for instance, said that "I would ask that you work to comply with the 90-foot height level as the law requires." She clearly viewed the issue as whether she should give an exception to the zoning rule.
But, in fact, her job is to pay that particular rule no mind. The Zoning Commission decides on zoning; HPRB decides on historic compatibility. Which steps a property owner does or does not need to change the zoning on their property is historically irrelevant, as Boasberg would often point out.
And while the law might set a 90-foot height maximum, it also allows the Zoning Commission to set a different height, still within the law. So the law doesn't "require" 90 feet, per se.
The staff report came too late. HPO staff provide a formal written report the Friday before a case comes up before the HPRB. In this case, however, they did not get it out on time. Since the report was late, the property owner didn't have an opportunity to review it ahead of the scheduled meeting. Unable to prepare a response to a report they hadn't received, they decided to postpone their case by one month.
Government agencies have considerable power to impede property owners from doing things on their own property. The very least we should ask is that they make these decisions in a timely way and not unnecessarily string anyone along. If a project is on the agenda for a specific meeting, the government is obliged to be prepared for that meeting.
The staff negotiate in secret. In zoning cases, the review process is quite transparent. A property owner applies for a certain change, the application becomes public, agencies and community members weigh in, and then a board reviews the application. With preservation, however, the process is less clear. The owner first spends weeks or months talking with staff and often negotiating over what changes to make to a project, before it goes before any board and often before it's even public.
HPO staff often ask applicants to make changes which don't have a clear basis in regulations, but are merely personal preferences. Sometimes the board ends up disagreeing, but often in those cases the owner has already taken elements away from their plan and the board has no chance to restore them. This process limits the effectiveness and authority of the law, in favor of subjectivity.
In this case, staff negotiated to reduce the height of the building. The owners proposed a compromise where they would take one floor off the building and set the new top floor back farther, making it almost invisible. At one of the presentations ICG made to the community, they said they felt this was a compromise staff were willing to make based on their conversations with staff. But at the very end, staff backed away.
Any applicant has to run a long gauntlet of multiple offices and boards, each of which can ask for changes. Sometimes these changes are inconsistent, or one group asks for a compromise in one area and then the next uses that agreement as a starting point to negotiate for even more changes.
Rather than discussing projects in secret, preservation staff should just publicly state what they think is or isn't historic about a project, let neighbors and others put in their two cents, and put the questions to the board.
The ANC received no "great weight." By law, Advisory Neighborhood Commission (ANC) recommendations deserve "great weight" from District agencies. There's no clear definition of how much weight is great, but there is a general consensus: As ANC 3B explains it, "'Great weight' means that a District agency must consider and respond to concerns voiced by an ANC, but does not necessarily have to agree with it or abide by the ANC's decisions." ANC 2E's webpage says, "The DC agency must: make its decision in writing, explicitly answer ANC arguments, and send a copy of the response to the ANC."
The staff report made no reference to the views of ANC 2B, which includes the site, and which voted to support the compromise plan. The staff report does not explicitly respond to the ANC's arguments, and therefore there is a strong case that they did not afford "great weight."
The meeting stayed nowhere near on time. This doesn't relate to the outcome of this particular case, but it's an important issue with the process in general. The agenda called for this case to come up at 1:30 pm. It actually started around 2:30, and members of the public got to speak closer to 4.
Acting chair Pfaehler also asked everyone to keep their remarks to 3 minutes, but several testified for over 10 minutes without a word from the chair. Meanwhile, 40-50 people had shown up to testify on McMillan, the next item on the agenda. But given the late hour, Pfaehler concluded there wasn't time to cover it, and sent all of them home.
They had taken considerable time out of their day to provide comment and didn't get a chance to do so at all. They may not all be available for the next meeting, so some of those comments will simply not be heard. The board needs to better manage its time, to show more respect to the people who dedicate part of their day to present views.
Overall, any process which leads such subjective decisions, where much of the negotiation happens in secret, with inconsistent rules about what is and isn't appropriate to consider, and unpredictable timing, needs fixing. In an upcoming article, I'll suggest a few ways to address these problems.
 | David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington and Greater Greater Education. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater.   |
Comments
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In cities that are already built-up there are legal obstacles to downzoning when the property owners object. In such circumstances, historic preservation functions as a legal fiction to get around these obstacles.
But legal fictions only work as long as those employing them keep up the pretense. It sounds like the current board isn't playing the game as well as its predecessors.
by Ben Ross on Jun 7, 2012 12:31 pm • link • report
by Ben Ross on Jun 7, 2012 12:34 pm • link • report
Not sure the ANC report should be taken that seriously. How many people live there?
by charlie on Jun 7, 2012 12:50 pm • link • report
The Hay Adams thing is telling. I would be interested in the difference between that case and this one in the eyes of the historic preservation office.
by William on Jun 7, 2012 12:58 pm • link • report
by Paulus on Jun 7, 2012 1:07 pm • link • report
Good reporting, David.
by andrew on Jun 7, 2012 1:09 pm • link • report
by Paulus on Jun 7, 2012 1:10 pm • link • report
That is sort of where I was going with it.
by William on Jun 7, 2012 1:16 pm • link • report
However, your comments on Gretchen's role as the temporary Board chair for this case are a bit too strong. She's a great addition to the Board, thrust into a challenging role on this case. Give her the benefit of the doubt, she'll grown into this role as she spends times on the Board and better understands the nuances of DC's unique set of preservation and zoning rules. From what we could see following the case online, with Chair Buell needing to step off for this case, Gretchen did a great job of trying to manage what at times seems like a circus to those of us watching. She could have been more heavy handed in cutting off speakers after 3 minutes, but that takes a delicate touch that may have to come with experience. It was unfortunate to have to postpone the McMillian case, yet it was the right decision. We've appreciated the strength of her comments on other cases, especially when she doesn't just accept the staff report as preservation gospel.You may want to reconsider the assessment. The city, its built environment, and neighborhoods will be better because of her willingness to serve on this board.
by Preservation Police Rule! on Jun 7, 2012 2:12 pm • link • report
David, the question of the "great weight" that the ANC is supposed to be given was addressed by the DC Court of Appeals (i.e., the District of Columbia's highest court which is not to be confused with the federal court that sits in DC; also, the same court to which the Capitol Hill Restoration Society appealed the Mayor's Agent's decision about the Heritage Foundation building) a some thirty years ago. I don't have the citation but have looked it up.
In effect, as long as the HPRB addresses the points raised by the ANC that is considered to be enough to meet the "great weight" requirement. In other words, "great weight" is meaningless and kind of a pitiful joke.
DC Preservation Watch
by DC Preservation Watch on Jun 7, 2012 2:38 pm • link • report
Okay...have found the citation and the quote:
It's Kopff v. District of Columbia Alcoholic Beverage Control Board. The standard for "great weight" is described as:
"...an agency must elaborate, with precision, its response to the ANC issues and concerns..."
If you want to find the whole thing, go to the Libary of Congress legal section and they can print it right out for you.
--
It is worth emphasizing that, for all intents and purposes, ANC input is currently almost meaningless. This issue of deference that enraged citizens keep raising (probably) would have been clarified had the Capitol Hill Restoration Society v. Heritage Foundation not been thrown out because the Restoration Society filed late...but, alas, they did.
So, for now, we're stuck with this farcical concept of "great weight."
DCPW
by DC Preservation Watch on Jun 7, 2012 2:49 pm • link • report
by Eric on Jun 7, 2012 3:03 pm • link • report
by Joel on Jun 7, 2012 3:33 pm • link • report
by WRD on Jun 7, 2012 4:18 pm • link • report
It sounds like this project has some issues, especialy vis-a-vis the Hay Adams Hotel. Maybe there was an exemption do to the method of construction or some functional issue, but whatever it is, since it's nothing to do with aesthetics, but rather zoning, it should be a lot more objective.
I'll be curious what David's muckracking campaign uncovers, but preservation is always going to be a controversial issue. However, e are a long way from being a museum city like some claim. It wasn't too long ago that the mania to flatten all that was old was upon us.
by Thayer-D on Jun 7, 2012 9:52 pm • link • report
by Tom Coumaris on Jun 8, 2012 12:55 am • link • report
by Karl on Jun 8, 2012 8:09 am • link • report
How do you explain the other buildings along 16th Street and its environs which have extra floors, penthouses etc. that exceed this suddenly sacrosanct 90 foot line?
by William on Jun 8, 2012 9:00 am • link • report
Promote height limits all you like, but ease up on the hyperbole - the extra floors with substantial setbacks wouldn't be 'looming' over anything. The White House structure itself is 1200 feet away from this site.
A 10th and 11th floor, a quarter-mile away, won't loom over much of anything.
by Alex B. on Jun 8, 2012 9:19 am • link • report
Citation please.
by Miriam on Jun 8, 2012 9:20 am • link • report
"The regulations are coordinated and intended to be consistent with the following statutes and regulations:...D.C. Zoning Regulations...";
"In making a finding on new construction, the Mayor’s Agent shall apply the standard that the permit shall be issued unless: After due consideration of the zoning laws and regulations of the District of Columbia, the Mayor’s Agent finds that the design of the building and the character of the historic district or historic landmark are incompatible..."
The historic preservation office is also supposed to review referrals from the office of zoning on BZA and zoning commission cases.
In the present case, the zoning limits buildings heights to 90 feet in that location, and the developer wants more, which would require a variance, rezoning or planned-unit development. It seems to me that the HPRB rightly addressed the question of whether such an exception should be made in this instance and came out against given the near uniformity of 16th Street, particularly as an approach to Lafayette Square and the White House.
It is understandable that people may have differences of opinion on height; probably everyone would accept the idea of some kind of limit, even if such ideal limits may differ, and all are in some sense "arbitrary." But to take the leap from "I don't agree with the decision" to "there is no rational basis for the decision" is unfair and likely sour grapes.
by Beryl on Jun 8, 2012 10:13 am • link • report
If there are large areas of central Paris that are townhouse neighborhoods, I am not aware of it. Are you suggesting DC tear down its historic townhouse neighborhoods and replace them with 6 story apartment buildings?
" Europeans live in average 500sq' residences "
how odd that someone who seems to value middle class row house living, rather than " human file cabinets" begrudges the desire of other Americans to live in more than 500 sq feet.
by exNYer on Jun 8, 2012 10:17 am • link • report
The problem is, the HPO in its report to the Board, was very selective in its precedents. The most glaring omission was the Hay Adams, which the HPO Staff and Board went on to endorse. So the question become, why would staff say it is ok for the Hay Adams, which is right across from the White House, to exceed the 90 foot mark, while it is not ok for this proposal, which is several blocks north, to strictly adhere to it?
This is the subjectivity which is present in many HPO reports and gives preservation a bad name. As someone else already mentioned, is it because of the sting from the decision to demolish the original "historic" structure?
by William on Jun 8, 2012 10:28 am • link • report
As far as the late submission of the report goes, I have no problem with that delaying a hearing by a month. The office has just a couple people who produce those reports, and they take a lot of time to write and produce and get approved.
I don't know about the great weight issue. Legally, it's strictly what the Brits would call "consultative." I don't know if that means an agency has to respond point by point. I'd have to read the ANC finding to judge how relevant it is to the matter. E.g., lots of ANC reports say stuff that isn't relevant to how a matter is considered, especially when it comes to preservation.
But in any case, I think that the city planning office/HPO could do a better job providing general guidance, like say how various City of Seattle Dept. of Planning and Development provides more descriptive publications that do this, e.g., guidance on height on 16th St. might be good, then again, there are only a couple of properties where it's truly a relevant issue.
http://www.seattle.gov/dpd/static/Seattle%20Zones_LatestReleased_DPDP_020250.pdf
http://www.seattle.gov/dpd/Planning/Design_Review_Program/Design_Guidelines/default.asp
http://www.seattle.gov/dpd/Publications/Client_Assistance_Memos_%28CAMs%29/default.asp
by Richard Layman on Jun 8, 2012 11:25 am • link • report
I feel as if there is an underlying theme pitting historic preservation review against height and density - what seems to be your singular criteria for declaring this project a success in complying with the ideology of smart growth. Since when does density and height have to be the most important criteria for qualifying a project as a success? How about how it relates to what is around it? How about what function it serves? How about what materials it is constructed from? How about its overall design and appearance? How about its access to public transportation? How about the number of people it serves? It should be noted that this project is for offices and a church – not for bringing more residents into the downtown core.
It seems that the only outcome you would have been in favor of is a taller building. Why is that the sole measure of success? HPRB really could not satisfy you if you wanted to. [Deleted for violating the comment policy.]
Lets say the HPRB or the staff report never mentioned 90’. Instead, the HPRB would have to evaluate the project based upon surrounding buildings (such as the one immediately next door to the north) and its compatibility with the architecture of the entire historic district (which is its function). They could still reasonably make the conclusion, based upon the building next door facing 16th street that the height, as proposed, was too tall. Had they made this determination, they would be branded as having some elitist aesthetical bias towards smaller buildings. This would position them as being anti-smart growth, and therefore ripe for criticism.
Or, they could have reasonably decided that the height as proposed was fine. But then, as you note with the Hay Adams, should an exception be made, every potential rehabilitation or construction project in the vicinity and in that historic district would try to make the same argument (as the Third Church tried to do). The point of the historic district, at that point, would be essentially lost. I should point out that the Hay Adams was far from a happily accepted project. If I recall, it was a very politically charged debate with many in opposition. Maybe others who were around then could chime in here.
The truth is preservation and zoning are intrinsically linked. Why on earth would the HPRB approve a project that exceeded the height currently permitted by the zoning code? Wouldn’t it be a waste of time if for some reason the variance or PUD were not granted – therefore sending the case back to HPRB? And if you were to flip the process over… why would the zoning board grant a variance or approve a PUD if there had been no historic review knowing that outcome would kick it back to them? There has to be some coordination and cross consideration here – otherwise there is a circular argument with no conclusion.
As for the ANC “great weight,” all I can say is thank goodness “great weight” does not mean they are obligated to “agree.” Can you imagine if in every case in the District of Columbia where the ANC is to be given ‘great weight,” meant the decision makers had to agree with them and rule in their favor? How many development projects in this town would have been completely killed? Their views obviously need to be considered, but they do not have to be last word.
Now… there were some issues that I do think are justified. The staff report was late. That is certainly fair. And the meeting was indeed long. But I also do know that it is extremely difficult to predict how many people are going to want to speak on a particular case – particularly for controversial ones – as you know this was.
Thanks for reading, anyway. I just think there should be more working together and less attacking.
by EH on Jun 8, 2012 11:52 am • link • report
So DDOT, and all the other agencies that review development applications, should also comment on height? Each reviewing agency has its areas of expertise and responsibility, and those are the only ones it should review and comment on.
by Arnold on Jun 8, 2012 12:08 pm • link • report
by Beryl on Jun 8, 2012 12:34 pm • link • report
I definitely disagree about whether they should have factored in zoning. As a thought experiment, what if they had already gone to the Zoning Commission and gotten the property rezoned? Then, the zoning rule would say
Approval from HPRB does not mean it can be built. It means that it's not incompatible historically. If, theoretically, a building of a certain size is historically compatible but violates zoning, what is HPRB to do? They need to say that the thing is compatible but note, as they always do, that their permission does not bear on BZA or ZC approval.
DDOT's public space division has to rule on curb cuts. Should they be rejecting curb cuts if they think something isn't historically compatible? What if HPRB hasn't ruled and they don't know? Should the fire department, in its approval, look at whether a project's curb cuts work well for pedestrians?
The only way these disparate approvals work is if each approving authority looks at its own criteria and its own rules and not others, and makes clear that its decision in its own area of expertise does not mean they have to be okay with something that might bother another agency with a different purview.
HPO can say that they think the only historically appropriate kind of building is one with a 90' roof and nothing at all above, but they need to do that with reference to historic regulations and definitions alone, not the zoning, and board members like Pfaehler need to base their decision on history and not the zoning.
This is why rules set out in advance are so important. If there were written definitions of what is and isn't compatible, and then refer to each one when makign the decision. A vague note that "scale" is one of the characteristics of the historic district does not suffice.
And Beryl, the fact that the zoning regs mention zoning does not mean zoning is a responsibility of HPRB. I read that to mean that the regulations don't override the zoning. Which they don't, and that's why a project still needs to either conform to zoning or go through legally-defined processes to change zoning through the BZA or ZC.
by David Alpert on Jun 8, 2012 12:51 pm • link • report
"All people look at issues through the lens of their own preferences"
"If there were written definitions of what is and isn't compatible, and then refer to each one when makign the decision."
I think that was EH's point, that there's a myriad of issues to contend with if one is to view preservation intelligently. I know that dosen't always sit well with the more right brain types, but that's the way great buildings are designed. The perfectly segregated "approvals authorities" dosen't always get the whole picture, so it seems one has to accept some gray areas to ensure we don't miss the forest for the trees.
by Thayer-D on Jun 8, 2012 1:30 pm • link • report
That might be true, but great cities are built on the aggregation of many individual actions, all happening within a common framework of rules and laws - whether that's the most basic (a public street goes here, private buildings there) to far more complex issues of preservation, compatibility, and legally required review processes. For that rule of law to work, the law has to be predictable.
The broader point is that deviating away from those rules and process has costs, and those costs are too often just swept under the rug.
by Alex B. on Jun 8, 2012 1:44 pm • link • report
"A vague note that "scale" is one of the characteristics of the historic district does not suffice."
One might not be comfortable with the idea of "scale" as it pertains to historic districts, but that's the way the regulations are written now. Seguey this discussion to a fine grained district like Georgetown, and scale becomes a much more sensitive issue. Law's need to be as predictable as possible, but any law regarding aesthetics in all it's dimensions will invariably be open to missinterpretation. Much like architects who stick to any one style for whatever ideological clarity they seem to be comfortable with, this is one of those issues you'll never be able to legislate perfectly, although I don't fault David for trying.
by Thayer-D on Jun 8, 2012 1:56 pm • link • report
It's not just clarity of the law, but also clarity of process. Admittedly, these are complex issues. However, the procedural mechanisms are often inadequate. Combine that with the rigidity of the rules' contents, and you have an inherent contradiction between the very nature of a city (an economic agglomeration of capital - human, physical, etc) that is constantly growing, changing, evolving, a static-yet-incomplete set of rules, and unclear processes for adjusting and changing those rules.
by Alex B. on Jun 8, 2012 2:00 pm • link • report
- http://www.envisioncentraltexas.org/toolbox/policy_action.php?ID=63
And related to Arnold's point which I think was supposed to be something like "HPRB has no authority to make decisions based on height" again, height and massing is a key element of the architectural styles and building practices that typify the era of architectural significance that makes up the historical context for particular historic districts. So yes, height is relevant to HPRB decisions as a matter of course.
by Richard Layman on Jun 8, 2012 3:42 pm • link • report
by Beryl on Jun 8, 2012 5:36 pm • link • report
They are only instructed to be mindful of compatibility. It might be a good idea to have them be mindful of more, but then they should be mindful of sustainability, and economic growth, and other factors which they constantly insist they aren't supposed to be mindful of.
The point is that over and over, when people brought up zoning, Boasberg or others would say, "we can't consider that. We are not the zoning board. We can't look at zoning." And then suddenly not just the board is doing it but HPO staff are. It's a slap in the face to everyone who got shouted down for bringing up zoning in the past.
by David Alpert on Jun 8, 2012 5:44 pm • link • report
by Beryl on Jun 8, 2012 6:39 pm • link • report
by Gray on Jun 8, 2012 9:14 pm • link • report
If 'static-yet-incomplete set of rules" is a euphamism for preservationists, it would be useful to point out that the preservationists where the only ones standing between our cities and the architects and beurocrats hell bent on demolishing the buildings that make our cities unique. There's no contradiction if one understands that to move forward, one needs to know where they've come from. Preservationists aren't the enemy of smart growthers. In fact, once upon a time, the idea of adaptive re-use/preservation was seen as a key component of sustainability. Clarify the rules and strive for consistency, but to say that preservationists screwed the church because they enforced the 90 foot limit is the real hyperbole here. It's starting to seem like some are trying to pit the preservationists as enemy's of density, when they are the ones who pioneered the urban revival while all the cool kids where hanging out in suburban malls.
One could point out that preservationists might not be necessary if architects designed new buildings that people actually liked rather than the souless glass boxes some people insist reflect our "modern" culture, but sufice it to say that two wrongs don't make a right.
by Thayer-D on Jun 9, 2012 10:06 pm • link • report
The problem is, this 90 foot rule is new and only applies to the former church property as construed by the historic preservation office. Other buildings along 16th street have pierced this height without much issue or complaint.
by William on Jun 9, 2012 11:51 pm • link • report
by Reed on Jun 14, 2012 10:22 am • link • report
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