|Critical Case For Historic Preservation
Washington Post, Sunday, September 12, 1999; Page B8
Do developers have a right to build on every inch of their property at the expense of the local government's right to protect the community's charm, grace and quality of life? On Tuesday the federal appeals court in the District will hear arguments on that issue in a critical historic preservation case.
The case involves Cathedral Mansions South, an apartment building across the street from the National Zoo. Harry Wardman, one of the District's most prolific residential architects, designed the building and its landscaped lawns in the 1920s. His influence along Connecticut Avenue is reflected in the Marriott Wardman Park Hotel in Woodley Park.
Wardman designed Cathedral Mansions South to provide the greatest possible integration of living space and open space. He connected the living areas with expansive lawns through the use of sun rooms, large windows and French doors that open onto sheltered patios and balconies. The Georgian Revival structure and lawns complement similar residences along Connecticut Avenue that preserve continuity with the natural landscape.
In 1989 in response to a request by the Woodley Park Community Association and the Woodley Park Historical Society, the District's Historic Preservation Review Board designated this period piece as a historic landmark. Similar properties in the Connecticut Avenue corridor also have been so designated, to the benefit of property values throughout the neighborhood.
The current owner of Cathedral Mansions South purchased the property in 1961 and has operated the complex profitably ever since. In 1988 the owner sought permission to build eight three-story town houses on the landscaped lawns. The District denied the permit, acting on the recommendation of the federal Commission of Fine Arts, the director of the National Zoo, the D.C. Historic Preservation Review Board and local community associations. Because the lawns are integral to the original design of the property, the District concluded that the proposed development would destroy the essential character of the landmark.
The owner then sued the District under a federal constitutional provision known as the takings clause, which prohibits the government from taking private property without just compensation. The takings clause originally was understood to apply only to the physical appropriation of property for roads, public buildings and the like. In recent years, however, developers and others have urged an aggressive application of this provision to attack historic preservation efforts, curbs on urban sprawl, environmental safeguards and other community protections.
In 1887 the Supreme Court held that "all property in this country is held under an implied obligation that the owner's use of it shall not be injurious to the community." Compliance with the District's historic preservation laws falls squarely within every property owner's obligation to the community. Indeed, 20 years ago the Supreme Court rejected a takings challenge to New York City's historic preservation laws that prevented construction of a 55-story office building atop Grand Central Terminal.
In a comprehensive ruling, the lower court rejected the owner's claim. If the appeals court adheres to constitutional tradition and common sense, it should affirm that ruling.
But area residents should keep an eye on this one. In recent years, the federal appeals court in the District has not been reluctant to invalidate clean air standards, wetland protections and similar safeguards. Some developers argue that taxpayers should compensate them if community protections require that a portion of a larger parcel be left undeveloped. But by this reasoning, building setback requirements, density restrictions and the District's mandate that buildings be no taller than the U.S. Capitol are all in constitutional jeopardy.
The Constitution strikes an appropriate balance between an individual's property rights and community rights. The courts should not jeopardize community protections in the name of private profits.
Timothy J. Dowling is chief counsel for the Community Rights Counsel, a public interest law firm, which is providing technical assistance to the District in the Cathedral Mansions South appeal
Copyright 1999 The Washington Post Company