The Palisades Safeway is one step closer to “non-historic designation”

In a staff report released last week, the Historic Preservation Office (HPO) largely agreed with the owners of the Palisades Safeway that their property does not merit historic designation. The Historic Preservation Review Board (HPRB) will review the case and make a final decision this Thursday. If HPRB concurs with the staff, it could give Safeway a one-year window to raze the property without fear of an alternate landmark application delaying or halting the demolition.

As I covered when this application was first filed in January, this case of an applicant arguing against designation is unconventional to say the least. HPO staff could only find a single similar case from 20 years ago—a 1998 application for the Park Lane Apartments at 2025 I Street NW. But given the not-infrequent conflict between owners and preservationists over increased development in DC, the outcome of this case could set a precedent that might make this tactic more common.

HPOs report has an eye on future precedent

First, HPO staff confirm that there’s nothing illegal about Safeway’s strategy, but warn applicants there’s always a risk it could backfire: “It is an unusual circumstance, but one that the regulations allow, and one that is not unprecedented. It is like any other nomination in the sense that the Board may designate the property if it finds in it sufficient merit,” they write in their report.

They further lay out that the burden of proof is substantially higher for these applications. By law, the Board designates according to seven historic criteria. A standard application needs to prove only the applicability of one of the criteria to earn designation. But, HPO suggests, an application arguing against designation, “must convincingly address the failure of a property to meet each” criteria.

That’s a pretty big difference. Proving the absence of a thing is much harder than proving its existence, particularly when it comes to the historic record where so much evidence is difficult or impossible to recover.

Consider, for example, DC Criterion A: having to do with “events that contributed significantly to the heritage, culture or development of the District of Columbia or the nation.” An application arguing for designation of a property needs only to find evidence of a single significant event at a site. But an application arguing against designation theoretically needs to review every event that’s happened at the property and prove that none of them were significant.

Obviously that’s an impossible task, and in the case of this application, the staff report doesn’t seem to actually hold it to that strict of a standard. Instead there seems to be a more reasonable assumption that the absence of evidence is a kind of evidence itself. Commenting on Criterion A, staff note they reviewed archival newspaper records about the site and failed to find any mention of significant events having occurred there.

The same tone is consistent across the report’s consideration of other criteria as well. Staff comments are generally in favor of the owner’s case against designation, but it’s also true they leave open some degree of uncertainty.

Ultimately, HPRB will make the final decision. If they concur with the staff, they can vote to deny the nomination and trigger the one-year application moratorium Safeway is ultimately seeking. But if they decide the uncertainty is too great, they could actually choose neither to designate or deny at all, but to defer the designation decision instead, leaving the application in a state of limbo.

Arguably, given the different standards applied, a similar future applicant would be better off making a very poor case for designation to secure a definitive denial rather than risk a deferral on a case against.

A need for certainty

Needless to say, this inversion of the preservation law creates some perverse incentives. Any historic research presented by applicants invested in “losing” the case is unlikely to be trusted as objective or comprehensive. On the other hand, if a skeptical HPRB’s only available response is to indefinitely hold an application, that’s inefficient as well.

Ultimately, the one-year moratorium was clearly never intended as a valuable outcome applicants might pursue in their own right, and the law needs to adjust. But to properly solve the problem, we need to fix the process’s major weakness around uncertainty that’s creating this demand in the first place.

For owners, uncertainty takes the form of not knowing if the property they purchased under one set of assumptions about cost and development potential could suddenly change overnight with an unexpected designation, or at least a costly delay. As the historic review process is largely only reactive to applications, those sometimes multi-million dollar decisions generally happen at the very end of the development planning process when construction is about to begin. (All of that is compounded by bad faith applications motivated by unrelated anti-development opposition). It’s a financial risk that drives up the cost of developments and dissuades smaller developers and projects from going forward.

At the same time, I’ve heard from preservationists who feel similarly frustrated by the uncertainty of all the buildings with histories we don’t know. There are over 130,000 properties in the District, and only a portion of them have had any kind of historic review. They worry that the speed of development is outpacing their ability to research and nominate important properties and that we’re losing critical structures and history just for lack of knowing they’re there.

A path forward?

In a world with unlimited time and resources, the solution would be easy: comprehensively review every building, stamp it historic or non-historic, and save the ongoing review process for the handful of cases where previously unknown information has come to light.

While the scope of that fix is obviously unrealistic, maybe a smaller version is achievable. Safeway’s attempt to force a pre-emptive decision about their property gets halfway there, but clearly it’s not ideal.

A better process might give owners an option to request a formal historic review well in advance of development. Rather than tasking the interested party with the research, HPO or an independent company could undertake it and fund it with an application fee. The result could cement the site’s status (either historic or not) and, if not historic, prevent subsequent review for some reasonable fixed period of time, like 10 years.

Property owners would get predictable costs, preservationists would get advance warning, and maybe everyone could avoid trying to navigate these decisions in the context of impending raze permits.