Construction within the District of Columbia presents a unique challenge to developers. Where other jurisdictions may require a developer to exclusively deal with the local zoning authority to acquire a permit, the District often requires developers to seek additional review for projects located in designated historic districts (e.g., Georgetown, Shaw, Capitol Hill). Developers face challenges posed by local non-profits, historic review commissions, and neighborhood governing bodies to assist in getting their design concepts approved. Smart developers will engage these entities early in their design process to obtain buy-in and streamline the approval process.
How do Project Designs Get Approved in the District of Columbia?
The presentation of designs for new construction, alterations, demolitions, or subdivisions in historic districts flows through the Historic Preservation Review Board (HPRB), a unit of the Historic Preservation Office (HPO). The office of the Mayor’s Agent within the Office of Planning may further review an application for a building permit. Developers often attend multiple public hearings prior to having their designs approved, in addition to complying with the District’s zoning laws.
The District’s municipal code requires developers to submit their project designs for review to the HPRB. Understanding this process is critical to successfully completing it in a timely fashion. When the Board reviews a proposal, it considers whether or not the design is compatible with the character of the historic district. Starting twenty-one (21) days before the scheduled hearing, the HPO disseminates a developer’s application materials to the public, including concept drawings. This proves a valuable resource for the developer to meaningfully engage the public at the onset of the process.
Enter the Advisory Neighborhood Commissions (ANC’s): the liaison bodies from each ward in the District that advise the Mayor on the effects of policy. Proceeding without the ANC’s approval may substantially stall or derail the project’s approval. Their mandate includes maintaining the historic character of their neighborhoods. ANC’s and other organizations can submit letters or written resolutions to the Chair of the HPRB, and recommend they vote one way or the other. Smart developers ensure they receive email updates from the HPO on the schedule and agenda of public hearings, and make sure local organizations will attend in support of their project.
Returning to the subject of the Mayor’s Agent, developers can request a public hearing for their design should the Board reject it. The Mayor’s Agent only holds about five to ten meetings a year, so it’s important for developers to preserve their right to appeal as soon as the Board rejects their design. The Agent accepts permit applications if designs comply with existing preservation law, meaning the project has social or artistic merit serving the public interest, or rejecting the design would cause economic hardship. Community organizations and ANC’s can again view the applicant’s materials twenty days before the hearing, and request recognition as a party affected by the proposed project at least fifteen days before the hearing. The District municipal regulations permit any recognized party to present evidence and conduct examination and cross-examination of witnesses. Smart developers will have these organizations on board for the hearing, and have witnesses and experts prepped to testify in support of the project.
These procedures make development in a historic district complicated in the District. Developers save themselves headaches by planning ahead, for improvements as simple as dumpsters and recycling bins have been shot down by the Major’s Agent in the past. Even promises of implementing green energy in designs may not pass muster before the Board. Smart developers will leverage local organizations to sway the HPRB and the Mayor’s Agent by engaging them early in the process. And, until the District streamlines this process, it will be necessary to retain counsel early on, coordinate with architects, and get buy-in from neighborhood organizations prior to applying to the HPRB. Otherwise, developers will face months of bureaucratic obstacles just to break ground on their projects.
Jeffrey D. Katz is the founder and managing partner of JDKatz, PC. He practices in the areas of tax, real estate, and corporate law.
Joseph M. Fiocco is a legal extern with JDKatz, PC, completing his third year of law school at the University of Maryland Carey School of Law.