Gondelman v. DEPT. OF CON. & REG. AFAIRS

• Decision Date: 17 January 2002
• Docket Number: No. 00-AA-1531.,00-AA-1531.
• Citation: 789 A.2d 1238
• Parties: Larry S. GONDELMAN, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER & REGULATORY AFFAIRS, Respondent.
• Court: D.C. Court of Appeals

789 A.2d 1238

Larry S. GONDELMAN, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER & REGULATORY AFFAIRS, Respondent.

No. 00-AA-1531.

District of Columbia Court of Appeals.

Argued January 3, 2002.

Decided January 17, 2002.

Larry S. Gondelman, pro se.

Mary T. Connelly, Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for respondent.

Before SCHWELB, FARRELL and REID, Associate Judges.

REID, Associate Judge:

In this case, the Mayor's Agent for Historic Preservation for the District of Columbia ("the Mayor's Agent") denied "the [a]pplication for a curb cut and the related adjustments that would be made to the front of the real property located at 1924 Belmont Street, N.W., [in the Kalorama Historic District in] Washington, D.C." The application sought a preliminary permit, mainly to construct a garage on residential property and to excavate the berm and pave a portion of the front yard. Petitioners Larry S. Gondelman and Pauline Sobel ("the petitioners") challenge the Mayor's Agent's conclusion that their application does not meet the requirements of the District of Columbia Historic Landmark and Historic District Protection Act ("the Act"), D.C.Code §§ 5-1001 et seq. (1994), recodified as §§ 6-1101 et seq. (2001).¹ We affirm.

FACTUAL SUMMARY

The record on review shows that the area of the District known as Kalorama Triangle, and which encompasses the petitioners' residential property, was designated as part of the National Register of Historic Places in 1986. Subsequently, around March 2000, the petitioners sought a permit to make alterations to their residential property, including a curb cut and disturbance of the berm, to allow construction of a garage under the front of their attached row house.

A staff reviewer for the Historic Preservation Review Board ("the HPRB") recommended that the petitioners' application be denied "because the alterations are not consistent with the purposes of the preservation law." Specifically, the staff reviewer stated:

The owner, Larry Gondelman, seeks conceptual approval for a curb cut, front yard driveway, and new garage located beneath the existing front porch of this landlocked contributing rowhouse.

Typical of many houses in the Kalorama Triangle neighborhood, this early-20th-century Mission Style rowhouse is enhanced by the berm in its front yard, some of which is in public space. Historically, the front yards in Kalorama Triangle did not incorporate fences, nor paved areas, as fencing and paving were contrary to uninterrupted lawn aesthetic as defined by the surburban ideal.

The proposals to excavate the berm, pave most of the front yard, and introduce a garage below the front porch are not compatible alterations with the character of this rowhouse nor the historic district in general. Moreover, the paving of public space in historic districts, which was intended for planting is not consistent with the city's comprehensive plan.

Following the staff reviewer's report and recommendation, the HPRB held a public hearing on May 9, 2000, to consider the petitioners' application. In addition to Mr. Gondelman, testimony was given in behalf of the petitioners by Dixon Carroll, an architect, Emily Eig, an architectural historian who directed the survey that resulted in the addition of the Kalorama Triangle on the National Register of Historic Places, and Richard Nettler, then the petitioners' attorney. Mr. Gondelman explained how he intended to alter and enhance his property to meet the needs of the 21st Century in which the private vehicles play a major role; and why his proposed alteration would not lead others in the area to make the same request. He also mentioned other houses located near his property which have "front parking pads." Ms. Eig asserted that the "design [for petitioners' proposed alterations] works with the neighborhood. It is subtle, it is low-key, it is not trying to be something different than what it is, and it is not very dissimilar from houses that were designed with garages in similar neighborhoods." She limited her assessment, in terms of additional parking garages under houses in the area, to the petitioners' residence, indicating that the grade of the ground on which the house sits and the facade of the house are different from others in the block.²

Mr. Charles Dynes, representing the Kalorama Citizens Association at the HPRB's May 2000 public hearing, testified against the petitioners' application. He maintained that, "the berm is terribly important." He pointed out that the historic districts in Cleveland Park and Mt. Pleasant have houses with porches, and that: "In the Kalorama Triangle ... [the] berm is probably more important than the curb cut, although they're tied together." He added:

[T]he berms are a distinguishing feature, and on Belmont this particular set of berms is very important. If you stand down on 20th [Street], or if you stand up on 19th [Street], and you look up or down the street, on one side you will see this new development which is really not very good looking.... But one thing you will notice is no curb cuts. . . . And on the other side you'll see some curb cuts. You will see an alley in the middle of the street. Below that alley you'll see these half dozen row houses, all of [which] have a wall and a berm, and those berms are stepped up. And it's really kind of nice to stand up on 19th or down on 20th and look at that side of the street and see what this neighborhood has looked like since the beginning of the neighborhood.

Mr. Dynes quoted from the Comprehensive Plan regarding the preservation of landscaped green space:

The landscaped green space on publicly owned, privately maintained front and side yards in historic districts and on historic landmarks should be preserved. Special care should be taken to protect these historic green areas from being paved over for vehicular access and parking.

In addition to his own testimony as a member of the Kalorama Citizens Association's Historic Committee, Mr. Dynes, who was a member of the HPRB when the Kalorama Triangle Historic District was approved for the National Register of Historic Places, read into the record a letter dated April 19, 2000, from the Historic Committee to the HPRB. The letter voiced opposition to the petitioners' proposed alterations on two grounds:

One, introduction of a driveway would cause the loss of a significant section of the existing berm, which is an important feature in the continuity of [Belmont Road], as well as being an important unifying element in the Kalorama Triangle Historic District. Removal of a 7-foot width from the existing 14-foot-wide berm adjacent to the entry stair represents a 50 percent reduction and only leaves a 3-foot-wide planted area between the stair and the proposed driveway. This 3-foot-wide section is not wide enough to maintain the visual continuity of the berm.

Number two, approval of this proposal would create an unwelcome precedent for other properties that have no alley access to seek the same remedy. We believe that the consequence of such a precedent would be negative for the integrity of the historic district, as there are numerous properties in this district that do not have alley access.

At the conclusion of Mr. Dynes' testimony, Mr. Gondelman took issue, asserting in part:

Take a look at the view. This is the view down from, what Mr. Dynes was just talking about, down from 19th Street. This is the new development there. That's what you see on this side. Now, with all due respect, if you look down on the Belmont side, you can't see those berms. You are not going to be able to tell, from the bottom of 20th Street or the top of 19th Street, that there is a 7-foot cut in my berm. There's just no way you're going to be able to see that.

Mr. Gondelman also urged the HPRB not to say, "because precedent is a concern, nobody can get it. You can't do that."

At the conclusion of its hearing, seven of the eight HPRB Board members present voted to adopt the staff report and to recommend rejection of the petitioners' preliminary permit application. Approximately four months after the HPRB's action, the Mayor's Agent held a public hearing in response to the HPRB's recommendation. Ms. Eig, Mr. Carroll, Mr. Gondelman and others testified for the petitioners.

Ms. Eig described the petitioners' residential premises as "one of a group of seven in a row in a short block within the Kalorama Triangle that is on a fairly — similar grade." She stated that, "each house is similar, but different." One distinguishing feature of the petitioners' property "is a concrete porch that is cantilevered." Ms. Eig was not certain as to whether the porch was "structurally cantilevered" but said that, "it appears to be cantilevered from the facade of the building with a wrought iron well on it. And has essentially the sense that there is a space underneath." When asked by Mr. Gondelman, whether "the 1900 block of Belmont Road present[s] any unique characteristics when compared to other blocks within the historic district," Ms. Eig replied:

The thing that comes to mind, for instance, the stepped quality of it, because it is that grade, and because the group, the architect set them back from each other. And that probably is the single — if you had to have a single factor that makes them different.... That stands out dramatically.

The "stepped quality" is the same characteristic emphasized by Mr. Dynes during his testimony, in behalf of the Kalorama Citizens Association, during the HPRB's May 2000 public hearing.

Mr. Carroll explained the proposed alterations to the petitioners' property. He stated that out of eleven houses on the block, "[t]here are only two that would be eligible" for the type of alterations proposed by the petitioners, and only one would require a curb cut. He responded, "yes," when asked...