Alexandria's Board of Architectural Review (BAR) is about to take on the role of an historical preservation Supreme Court with no right of appeal - at least at the city government level.
At its March 6 meeting it addressed the question of a class one civil violation of the City's Zoning Ordinance with a potential cost to the plaintiff in excess of $20,000. It is the first time such a case has arisen and the Board found itself in unchartered territory.
The precedent-setting deliberations revolved around an application of Patrick Hardy, 522 Queen St., to gain after-the-fact approval for the partial demolition of his historic flounder-style home in alleged violation of the Board's limitations as approved July 18,2001.
In both the staff report and testimony before the BAR Old and Historic District meeting, City Planning and Zoning staff urged the Board to impose a penalty of $20,285 against Hardy "for the purpose of promoting historic preservation in the city."
Speaking for the city's position, Barbara Ross, Deputy Director, Planning and Zoning, said, "The applicant's plan to reconstruct does not meet the staff's recommendation. It would be more value to the city to pay the money rather than go through the detailed reconstruction."
This brought forth a series of questions by virtually every member of the BAR attempting to assess whether the unauthorized demolition resulted from an honest misinterpretation of Departmental/BAR instructions or from a flagrant disregard of those instructions. The answer to that question will determine the amount of the ultimate penalty to be paid.
APPROVED WITH STIPULATIONS
Hardy originally sought permission to demolish part of the rear portion of the 1840's property to construct an addition and make other alterations. The BAR, after a series of public hearings, gave its blessing to Hardy's planned renovations with the following stipulations:
1. Approval to demolish only the first floor of the flounder wing,
2. Approval to demolish the westernmost window on the first floor of the front facade, and
3. Denied the request to demolish the second floor of the flounder wing.
According to the staff report, "The contractor subsequently demolished the entire flounder except for the roof and its truss system, in direct violation of the Board's action. Staff discovered the extent of the demolition as a result of a wall check survey."
Following that discovery, "staff issued a stop work order on Feb. 6, and also issued a class one civil violation ticket in the amount of $1,500. The contractor, the project architect and the property owner were each issued class one violation tickets."
As further clarified by staff, "a class action violation shall ... exist until... the director certifies to the Board ...that the unlawfully demolished building or structure has been reconstructed ... using original material and techniques of construction possible."
AN EXPERT OPINION
Based on this definition, the staff contacted departmental historic preservation architect Richard Bierce to determine what would be required to reconstruct the second floor of the flounder to comply with the requirements of the ordinance." Bierce's conclusion resulted in the $20,285 estimate.
Staff explained, "the Zoning Ordinance does not provide a mechanism whereby the Board's decision on a class one civil violation may be appealed to City Council." In other words, the BAR, in this instance, is the court of last resort. Except for a real court.
Staff further noted, "the Board has two options." First, it can approve the reconstruction as provided by the Zoning Ordinance or it can "determine that the class one civil violation" ceases to exist by "determining a sum to be paid to the city equivalent to the cost of the reconstruction work."
In this case, the $20,285 was preferred by staff primarily for two reasons.
*The Board cannot approve Hardy's plan for reconstruction "because it does not comply" with the requirement of the ordinance.
*Carrying out a historically accurate reconstruction will result in relatively little public benefit.
Throughout the presentation, both sides seemed to vacillate on the questions of who required what and when as well as how were the requirements conveyed to Hardy, his architect, and contractor. It became obvious there was a clear miscommunication between staff, Hardy, and the Board, as to the original intent.
Hardy's contractor for the project stated he had provided staff with plans showing "everything was going to be new." He further explained, "We tried to retain the second floor wall" but the house had settle one foot when work began and footers had to go down more than 10 feet to get to solid ground.
WHAT'S GONE IS GONE
He indicated that he had explained this, plus the fact that all the original fabric would have to be removed, to both Planning and Zoning staff. He claimed they gave their approval.
In the final analysis the Board agreed with staff that the penalty would be more beneficial to the city than attempting to reconstruct the demolished portion with modern materials. Board member Arthur Keleher, summarized the decision by saying, "To rebuild with modern materials, even though exact copies, is not the same. What's gone is gone."
Bierce was asked if the amount of the penalty would be reduced if modern materials were used as opposed to original or exact reproductions. He answered 'yes.'
Hardy argued he had no idea that staff, based on his conversations with them, wanted anything preserved other than the exterior. He stated, he wanted "to do the right thing," but requested the penalty be reduced due to the misunderstanding between his representatives, staff and the Board.
In seeking an equitable resolution, BAR member Oscar Fitzgerald, said, "It is clearly our responsibility to take action. However, the applicant (Hardy) has raised issues that are valid and need to be considered."
As a way of allowing all parties to come to a mutually agreed upon solution, Board member Peter Smealie moved that "a fine be paid based on an agreement to be reached" between Hardy and staff. That recommended amount will be presented to the Board for final disposition. His motion was approved unanimously.