August 20, 2007
WHY A CHEVY CHASE HISTORIC DISTRICT WOULD BE A BAD IDEA
... AND WHAT YOU CAN DO TO PREVENT IT
U.S. Supreme Court Justice Louis D. Brandeis memorably warned in 1928 that “Experience should teach us to be most on our guard when the Government’s purposes are beneficent.” The last 50 years or so have seen the beneficent preservation of historically and architecturally significant structures that will enable future generations to enjoy and appreciate our national historical and cultural patrimony. The communal value of the preservation of these landmarks, which has been achieved through public and private action, is clear. Many such landmarks are accessible to the public or are focal points in the cityscape, and many are located here in our city – Washington, DC.
To most civic-minded people, therefore, historic preservation is a Good Thing. But preserving truly distinctive and significant landmarks is one thing; requiring each homeowner to comply with official aesthetic standards in the name of historic preservation is quite another. A group of nine self-appointed people constituting the Board of Historic Chevy Chase DC (HCCDC) has decided to impose on homeowners in Chevy Chase DC an onerous, pervasive, and often arbitrary regime of regulation under DC law to establish “peace of mind” to protect the history and architectural charm of our neighborhood.
The HCCDC Board’s decision to seek imposition of an historic preservation regulatory scheme on our neighborhood is now evident in a “draft” Historic District Nomination Application released for community review on July 27. The Application is expected to be filed as early as the end of October 2008 with the DC government Office of Historic Preservation. Your property in the proposed historic district is identified in the Application as either a “contributing” or “noncontributing” to the historic character of Chevy Chase.
NOTE: Your home will be affected whether or not classified as a “contributing” property.
You can find how your property is classified in the Application at the following Web link: http://Chevychasecommunity.com/docs/Chevy_Chase_DC_National_Register_Nomination_Draft_070727.pdf
The Application, in great detail, describes the development of Chevy Chase as an early developer-planned suburb. That the charm of our neighborhood has existed and grown for around 100 years in the absence of any “preservation regulation” is of no significance to such proponents. We believe that this effort will be profoundly disturbing to our sense of community and homeowner initiative by imposing an official aesthetic on even the most trivial alterations and encouraging zealous neighbors to become watchdogs of such official aesthetic standards. Because of the nature of DC regulations and their implementation, there will be little community benefit to offset the clear costs in time and money required by homeowners to comply. Moreover, to the extent that there may be real threats to the maintenance of our neighborhood’s character, there are far less intrusive means under zoning to counter them, as explained below.
Chevy Chase DC Over the Years
Our neighborhood is characterized primarily by detached (and semi-detached) single-family residences with a central corridor of mid-rise apartment buildings, some containing medical offices, and low-rise commercial buildings with convenience retail and professional offices. It is a highly desirable place to live in part because of its proximity to mass transit and shopping. Our neighborhood contains a variety of architectural styles typifying a “home suburb” of the early 20th century. This largely resulted from the vision of Francis G. Newlands of the Chevy Chase Land Company. Newland’s intent was to establish a community where every residence would “bear a touch of the individuality of the owner.” Accordingly, this part of the city lacks the density and unity of style found in other neighborhoods.
While there may be a discernible public interest in maintaining the unity of style and cornice line and building material common to older neighborhoods that are located in regulated historic districts, Chevy Chase DC is quite different. Its charm has resided in the individuality of its homes, many of which have been modernized and updated in ways that would violate DC Historic Preservation Regulations, but have not detracted from the pleasing variety of our neighborhood streetscape. The continuing stability and beauty of our homes reflect the generally good taste and sensitivity of those who have been attracted to live here in the first place. Of course, almost all of us have walked around to enjoy the neighborhood and noted that some homes have been altered in ways that we might not think come up to our sophisticated taste, and perhaps our own homes have been subject to passing criticism. This is a normal reflection of individuality. Proponents of regulation, however, would substitute officially coerced standards for private opinions, inviting neighbors to police these standards, often on trivial matters, a result that often has characterized historic district enforcement.
Fear of “McMansions”
Proponents of historic district regulation articulate a fear that our neighborhood will be invaded by large scale new construction, often termed McMansions, or other changes that will be out of scale and character with the surrounding homes. This has been a problem in other parts of the city and suburbs, and there have been a few additions here that arguably resemble this unwelcome kind change. There is little evidence, however, that in Chevy Chase DC this is likely to be a major concern. In any event, there are established means through a zoning overlay (see below) to meet this potential threat that do not entail the pervasive regulations that come with an historic district. The notion that we can rely on historic district regulations to protect our neighborhood from incompatible new construction is belied by a new home being constructed in the 3500 block of Newark Street in the heart of the Cleveland Park Historic District, which was approved by the Historic Preservation Review Board (HPRB) as compatible with that neighborhood. This all-copper clad contemporary structure might be described by various adjectives: innovative, bizarre, path-breaking, exotic or stunning – but the word “compatible” surely would not come to mind. Go to see it yourself, as it begins to oxidize to blue-green. Whatever its merits as a statement of architectural design, it is simply out of place. (It also violates the HPRB Guidelines for new construction that state: “The colors of a new building should complement those of surrounding buildings.”) (!)
Hope for Appreciation in Values
Alongside the proponents’ exaggerated fear of McMansions is their exaggerated claim that imposing historic district regulations will by itself stimulate greater appreciation of housing values in our neighborhood. Just as growers and marketers of food sponsor nutrition studies, proponents of creating historic district regulation engage consultants who more often than not claim that such action will have a beneficial effect on market values of the regulated area. Experts in housing market analysis will confirm that it is exceedingly difficult to isolate a sole determinant affecting values in a neighborhood of our scale. Some real estate agents contend that location in an historic district enhances values when selling homes. (There are such agents on the Board of HCCDC, one of whom does not even live in DC.) However, location in an historic district is seldom a featured selling point in residential real estate advertising. It is doubtful that more buyers would seek out Chevy Chase DC for this reason. With so many historic districts in DC, owning a home in an historic district is hardly a distinction. Indeed, in the absence of an historic district, the fact that values in this area are among the highest in the city and remain strong in the current general market downturn speaks volumes about what really matters to buyers. (It would be interesting to test the reaction of potential buyers if real estate agents disclosed to them, as required, the DC Regulations applicable to an historic district.) The Regulations are described below.
Historic District Regulations and Guidelines
DC law established the HPRB, whose members are appointed by the Mayor, to implement the law, to review proposed major renovations, alterations and new construction, and to deal with appeals from the decisions of lower level reviewers concerning minor repairs and alterations. The professional staff of the HPRB is the District Government Historic Preservation Office (HPO). The HPRB Regulations exceed 100 pages in the District legal register and are not available to the public in hard copy, although several “Guidelines” are available in hard copy from the HPO. These Guidelines are somewhat misleading because their language for the most part is not written in mandatory style; but the Regulations, which have the force of law, incorporate the Guidelines by reference, and a departure from a “guideline” can lead to coercive action.
The Regulations, which must be read to understand their severe impact on homeowners, are only accessible on-line at: http://planning.dc.gov/planning/cwp/view,A,1284,Q,637255.asp
For example:
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• Buildings are subject to review of permit applications that involve additions to the building envelope; installation or replacement of a window, door, siding, roofing, or other exterior finish; a change in the exterior finish of a building; installation of an awning, etc; construction or replacement of a retaining wall, fence, deck, patio, garden storage shed, etc; installation of air conditioning, mechanical equipment, etc; installation of a satellite dish, antenna, etc; sandblasting, abrasive cleaning, paint stripping; brick pointing; and installation of storm windows.
• Regarding window replacement, a permit is required for the removal or replacement of sash in existing frames, and for the removal and replacement of both sash and frames. Replacement of sash and frames must match the historic sash and frames in all respects. Replacement windows may be double-glazed, but they must have either “true-divided” lights or “simulated-divided” lights, with configuration and profiles matching the historic window. False muntins or grids located between two panes of glass, and “snap-ins” applied either externally or internally are not acceptable. If existing windows are not historic (i.e., original), replacement windows must be consistent with the historic window design if known, or should be consistent with the period of the building and compatible with it general historic character.
• The color of replacement windows must be historically appropriate or compatible with the character of the building. Alteration of window openings generally requires the approval of the HPRB. For basement openings not visible from the street or public open space, or only marginally visible, lower level staff may approve alterations that do not, in their judgment, compromise architectural or historic characteristics. Permit applications for window work must include close-up photographs of existing windows and, for applications to replace windows, supplemental materials must include documentation such as drawings, comparative dimensions, and details of construction, configuration, color and finish. The staff may request material samples or an on-site mock-up.
Permits in the above examples are in addition to any permits required to comply with Building and Zoning Codes and are required even if such other permits are not otherwise required. As can be seen, these are essentially aesthetic and thus subjective standards likely to vary in interpretation from case to case, particularly in comparison to other more objective and measurable regulations, such as the Building Code, Housing Code, and Energy Conservation Code.
The current 104 page version of the DC Historic Preservation Regulations was published in 2004...and is still incomplete. At no time since has there been any publication of regulations for any of the following eighteen “[RESERVED]” chapters of the Regulations:
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• Chapter 6: Zoning and Other Administrative Referrals;
• Chapter 8: Certification of Rehabilitation;
• Chapter 9: Inspections and Enforcement;
• Chapter 10: Maintenance of Historic Property;
• Chapter 11: Unsafe and Unsanitary Buildings;
• Chapter 12: Due Process Demolition;
• Chapter 13: State Historic Preservation Office Functions;
• Chapter 14: State Review Board Functions;
• Chapters 15-19: (reserved for unspecified content)
• Chapter 21: Standards for Renovation;
• Chapter 22: Standards for Addition and New Construction;
• Chapter 24: Standards for Commercial Store Fronts;
• Chapter 25: Standards for Signs and Awnings; and
• Chapter 26: Standards for Landscape Features.
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The absence of regulations and standards in these aspects of historic district regulation and enforcement has not deterred the HPO and HPRB from imposing and enforcing their aesthetic judgment on homeowners caught in historic districts. The combination of vague regulations where they do exist and so many others yet to come (that can be expected in the future) leaves even the best motivated and compliant owners seeking to enhance their homes in a state of bewilderment about what is required to be compliant. The Regulations provide no basis for judging the fairness, consistency or even historic relevance of the requirements being imposed by the historic preservation officials. This is a regulatory regime that has created an environment of unfettered discretion in the hands of a few unaccountable DC Government staffers and appointees.
Regulating the Invisible
Contrary to assertions by HCCDC that the HPO design review process is “primarily focused on those elevations visible from the street” the regulations explicitly state that all alterations are subject to regulation “whether or not the work is visible from public space” (emphasis supplied). Although representatives of HPO have mentioned that lower level reviewers give greater latitude to a homeowner’s preferences regarding alterations that are not visible from the street, the reviewer is given the authority by the regulations to substitute his judgment for the homeowner’s even if the alteration (such as a change in a door or window) is not visible to anyone other than the owner. The fact that the regulations require that a change in a window opening must be considered by the HPRB suggests that such flexibility may be rare. Moreover, since each home or window situation is likely to be unique, particularly because of the diversity of housing styles in our neighborhood, one reviewer’s aesthetic judgment may be unlike another’s; neither sets any precedent. This is the essence of arbitrary and capricious regulation. If the central purpose of the Regulations is to preserve the appearance of our neighborhood why is it a reasonable exercise of this power to control alterations that cannot be seen? The Regulations assert in a self-serving manner, for example, that “The Historic Preservation Act promotes an equitable balance between the rights of property owners and the benefits of preservation conveyed to the public.” What “benefits” are “conveyed to the public” by regulating something that the public will not be able to see?