Image scanned from submission by ICG Properties.

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.

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.

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David Alpert is the founder of Greater Greater Washington and its board president. 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 lives with his wife and two children in Dupont Circle.