Reneau v. District of Columbia

CourtCourt of Appeals of Columbia District
Citation676 A.2d 913
Docket NumberNo. 93-AA-820.,93-AA-820.
PartiesPaul RENEAU, Petitioner, v. DISTRICT OF COLUMBIA, et al., Respondents, and Dupont Circle Conservancy, Inc., Intervenor.
Decision Date30 May 1996

Richard W. Luchs, Washington, D.C., with whom Jacques B. DePuy was on the brief, for petitioner.

Charles F.C. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, filed a statement in lieu of brief for respondents.

Richard A. Friedman, for intervenor.

Before TERRY, STEADMAN and REID, Associate Judges.

REID, Associate Judge.

Petitioner Paul Reneau petitions from a decision of the Mayor's Agent under the Historic Landmark and Historic District Protection Act, denying his request for a permit to put a fourth floor rooftop addition on his property as well as a third floor rear deck. He contends that (1) the Agent's decision was arbitrary and capricious and was not based on substantial evidence; (2) the Agent erred in failing to explain why he rejected Mr. Reneau's expert testimony; and (3) the Agent committed error in interpreting the Historic Landmark statute. We affirm.


In November 1990, petitioner Paul Reneau and his wife purchased a three story townhouse located at 1312 21st Street, N.W. When the cost of remodeling the townhouse for their own personal use became prohibitive, they decided to convert it into condominium units. Mr. Reneau hired an architect and contractor to do the required work. The architect and contractor obtained some but not all of the required permits for the renovation.

In May 1991, construction began on a fourth floor addition to the townhouse. However, around August 14, 1991, the District of Columbia issued a stop work order because there had been no historical preservation or zoning review, and because no permit had been issued for the exterior work on the building, including the fourth floor addition. The stop work order continued until April 21, 1992, when it was lifted.

Eventually, Mr. Reneau obtained the proper zoning review, and initiated the process for review by the Historic Preservation Review Board (HPRB). Two applications were presented to the HPRB: (1) No. 92-104 concerning modification to the attic and roof, decks, first floor conservatory, fire escape, etc.; and (2) No. 92-369 regarding modification of the rooftop loft, as recommended in the HPRB staff report, dated February 1992, and the addition of a third floor rear deck. In February 1992, the HPRB staff made recommendations with respect to application No. 92-104. They recommended a redesign of the fourth floor addition to avoid its visibility and intrusion on the roofline "as perceived from the front facade." The staff also recommended elimination of the skylights, the metal chimney flues and the top deck. However, the staff found other rear decks and additions to be "consistent with the purposes of the law and with other approved additions and decks in the Dupont Circle Historic District." During the HPRB's February 19, 1992, hearing, a representative of Advisory Neighborhood Commission (ANC) 2-B (Dupont Circle) informed the HPRB of an unanimous ANC 2-B vote, asking the Board to:

Rule that any alterations visible from either 21st Street or Newport Place, Northwest, including the fourth floor addition, the flues, all skylight windows, and all decks are inappropriate and incompatible, and any new construction which does not conform to this should be removed....

After hearing other testimony and discussing the matter, the HPRB approved the staff report, and asked Mr. Reneau to submit accurate drawings to it for review.

The HPRB met again on March 18, 1992. The staff reported on its review of Mr. Reneau's new drawings. They concluded, inter alia, that:

Although the applicant has increased the slant of the roof slope which will undoubtedly result in reduced visibility, he has not sufficiently stepped back the rooftop addition, nor has he provided the photos or drawings to support his case.... and he has failed to demonstrate that the revised plan sufficiently mitigates the visibility and intrusiveness of the current addition.

The staff recommended that "more documentation be made available." When one Board member inquired why the hearing had proceeded if the staff had not received all the requested documentation, Mr. Reneau's new architect discussed new drawings and proposals to eliminate part of the rooftop addition, including the metal chimney flues, skylight, and rear deck, and to change the slope of part of the top roof. After hearing from others and discussing the matter, the HPRB approved a motion to reject application No. 92-104, which included the rooftop alterations.

In April 1992, Mr. Reneau filed his new application, No. 92-369, which in part concerned a modification of the rooftop loft instead of its complete removal. The HPRB staff commented as follows:

The Staff does not object to the installation of another deck. However, the record of the Review Board is clear as regards the rooftop. The Board has stated the application should be denied and that the addition should be removed.

At the beginning of its July 15, 1992, meeting, a staff member announced that Mr. Reneau's application had changed since the staff issued its report. The staff member stated:

The applicant has asked to withdraw his application to leave a partial roof addition on the top. He is totally withdrawing that part of the application, and is only applying for a rear deck. The staff report, the last part of the staff report, recommends that the Review Board find that the additional deck at the rear of the home is consistent with other decks approved in this historic district.

Mr. Reneau spoke in behalf of the third floor deck. ANC 2-B sent a letter opposing the third floor deck on the ground that it "would be visible from public space, especially Newport Place, Northwest." The HPRB voted to deny the application for a third floor deck. On July 28, 1992, the HPRB sent official notification to Mr. Reneau that applications 92-104 (rooftop addition as built) and 92-369 (proposed rear deck) were not approved because the "projects are not consistent with the purposes of D.C. Law 2-144."

Mr. Reneau took the issues of the rooftop addition and the third floor deck to the Mayor's Agent, and requested a public hearing. The public hearing occurred on September 28, 1992; the Dupont Circle Conservancy1 was granted party status. Two persons testified in Mr. Reneau's behalf: Gerald Kreidler of Kreidler Architects and Anne Adams, an architectural historian. The Mayor's Agent did not qualify Mr. Kreidler as an expert, but concluded that he was "experienced in historic preservation." Mr. Kreidler said that the structure, as then proposed by Mr. Reneau, was not inconsistent with the architecture and character of the street on which the townhouse was located. Ms. Adams showed a number of photographs of historically preserved edifices in the surrounding and other geographical areas of the District. She concluded:

We believe that what is proposed in its altered form to be consistent with what the Staff has recommended is consistent with the purposes of the Act.... It is compatible with the building and historic district.

Testifying for the HPRB was Hollie Saiz,2 a staff coordinator of the Dupont Circle ANC who read a statement from ANC Commissioner Pam Taylor; the statement supported the decision of the HPRB. One other witness, Raymond Compton, a former D.C. school teacher and operator of an historic bed and breakfast in Frederick, Maryland, testified in support of Mr. Reneau's application and the HPRB recommendations for modification. Richard Friedman, a board member of the Dupont Circle Conservancy, spoke in opposition to Mr. Reneau's application. He insisted that the Mayor's Agent could only consider the plans that were before the HPRB, not new plans which Mr. Reneau had presented to the Mayor's Agent. Although Mr. Friedman is not an architect, he expressed the view that the plans considered by the HPRB were inconsistent with the character of the historic district. Jacqueline Prior, Executive Director of the D.C. Preservation League, made a statement in behalf of the League. She expressed concern about the integrity of the Historic Landmark statute and "concern... that illegal work does not remain and go on for so long that it becomes acceptable."


On June 1, 1993, the Mayor's Agent filed findings of fact and conclusions of law; denied the requested permit; and dismissed Mr. Reneau's application with prejudice. The findings reflect the facts set forth above. Moreover, with respect to his conclusions of law, the Mayor's Agent determined that no permit could be issued unless he found that such issuance is "necessary in the public interest," and that "necessary in the public interest" means, in part, "consistent with the purposes of the Act, as set forth in D.C.Code § 5-1001(b)(1) (1994 Repl.)." D.C.Code § 5-1001(b) provides in pertinent part:

(b) It is further declared that the purposes of this subchapter are:
(1) With respect to properties in historic districts:
(A) To retain and enhance those properties which contribute to the character of the historic district and to encourage their adaptation for current use;
(B) To assure that alterations of existing structures are compatible with the character of the historic district....

The Mayor's Agent's major conclusions are contained in the following paragraphs:

46. There is no question that the street vista standing in front of an historic building is important. However, there is nothing in the Act to limit the compatibility test to that sole spot. Rather the Act clearly states that the test is "compatible with the character of the historic district." D.C.Code § 5-1001(b).
47. Therefore the test of compatibility must be measured not just from the view immediately in front of a structure but

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