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Expired F Street permit puts prime site in limbo

(Published January 28, 2002)

By JOHN DeVAULT

Staff Writer

Fed-up downtown neighborhood leaders are demanding that the city step in and kick-start a long-stalled redevelopment project – one whose misfires, they say, have resulted in not just one but two damaging consequences for the neighborhood.

The first was the city-approved November 2000 demolition of the Atlantic Building, a graceful, eight-story "proto-skyscraper" from 1887, along with three adjacent historically protected buildings in the 900 block of F Street NW.

The second was the resultant creation of a lengthy rubble-strewn lot on F Street that has stood vacant ever since – in violation, critics say, of the special agreement the developers struck with the city in return for the right to take down the landmark buildings.

"Here’s a really gorgeous historic building that was torn down, and the developers have not followed through on their promise to build on the site," said Terry Lynch, executive director of the Downtown Cluster of Congregations.

"And the mayor is just sitting on his hands," Lynch charged. "They have tools at their disposal, but they’re not using them."

Those tools, say Lynch and others, may include the fact that the developers of the site have let lapse a crucial building permit.

In any case, most observers agree that the problems on F Street began with a special agreement that the developers, the Bernstein and Clover companies, negotiated with the city to allow redevelopment of the historically-protected site.

In return for permission to take down the four protected buildings, Bernstein and Clover agreed to certain neighborhood-enhancing give-backs – including the promise to replace the buildings with a large commercial and entertainment center suiting F Street’s character as part of the city’s original retail hub.

And the developers agreed not to tear down the buildings completely: they promised to retain in place the buildings’ street-facing facades, to be incorporated later into the new construction.

So when the Atlantic and its neighbors came down, their towering brick and stone facades stayed put – propped up by great cantilevered girders.

But the problem was, say the project’s many critics, the deal lacked enforcement bite.

Soon after the partial demolition, the developers reported they had lost their tenant for the site. And they ran into money problems. The building phase of the project never got started.

Joseph Galli, a spokesman for the Bernstein Co., acknowledged last week that the company has not yet found a tenant. "We’re working really hard on it," he said.

So 14 months after the original four historic buildings were mostly demolished, the block looks the same – with the buttressed building fronts looming eight stories over a prime stretch of F Street NW, fronting only a large empty lot at 920-930 scattered with bricks and fragments of masonry.

Business on the block has plummeted, say neighborhood merchants, as customers stay away from the half-deserted streets and the spooky, towering facades. Neighborhood boosters say that the unsightly lot makes it hard to attract other new business to the block. And many worry about the safety and stability of the propped up facades, never intended to stand freely for 14 months. (City officials say the buttresses are being closely monitored and so far show no signs of instability.)

But Lynch and other neighborhood leaders are most upset at what they see as city inaction in the face of the problem.

City officials should look first, they say, to the possibility that the developers failed to renew a needed building permit, and so may have lost their right to develop the site.

Lynch said last week that David Maloney, who as acting program director of the city’s Office of Historic Preservation signed off on the project’s original demolition and building permits, recently told him that a crucial construction permit had expired last June.

"I’d been asking them, ‘Are the permits expired?’" said Lynch. "And finally David Maloney told me that the sheeting, shoring and excavation permit had expired last June." According to Lynch, Maloney indicated that "that’s the critical one."

Maloney confirmed last week that he recently requested copies of all construction permits from Clover and Bernstein, and that a review of the permits showed that the sheeting, shoring and excavation permit expired on June 6, 2001. Building permits expire one year after issuance, if the authorized work has not begun.

"They did file for extension of the main building permit," Maloney said. "But I guess they neglected inadvertently to renew (that) permit."

Maloney said that the developers would need a valid sheeting, shoring and excavation permit to proceed with the project.

"That’s their next phase of development," Maloney said. "Assuming that they get a tenant or the financing to go ahead, then the next phase is to excavate."

Regulations of the city’s Department of Consumer and Regulatory Affairs allow building permits to be renewed up to three times, for up to six months per extension. But the regulations specify that the extension must be applied for before the original permit expires.

DCRA spokesman Gina Douglas would only confirm that the agency issued a permit for "alteration and renovation" of the site on May 30, 2000. She said she had no information about an expired permit.

Galli denied that any of his company’s building permits had expired. "Our building permit is in full force and effect," he said. Asked about the sheeting, shoring and excavation permit, he said, "As far as I know, no other permits have expired."

However, Maloney said that in December, shortly after he requested copies of the permits from the developers, "a courier appeared in our office. [The developers] were submitting a request to have the sheeting and shoring permit renewed."

Maloney said he guessed that in the process of preparing copies of the permits for his office, "probably then they realized that that permit had expired."

He said the request for an extension of the permit still sits on his desk.

DCRA is the agency with authority to grant permit extensions, but the Office of Historic Preservation must also approve the developers’ request.

Asked if he intended to sign off on the sheeting, shoring and excavation extension, Maloney said he had noticed only during the current conversation with a reporter the regulation that extensions be applied for before the original permit expires.

"I’m going to be very careful about it," he said.

Charles Docter, chairman of the Downtown Housing Now Committee and another critic of the city’s handling of the Atlantic Building redevelopment, sent a letter to city officials on Jan. 18 which also urges officials to look at the status of the project’s building permits.

In his letter, Docter first asks the city to put the whole Atlantic Building redevelopment project up for reconsideration before the city’s Historic Preservation Review Board.

"The City must act promptly here because the owners have created an eyesore on F Street NW…," his letter says. "This eyesore has further complicated the effort to restore F Street as the vibrant retail center it once was."

Then, citing the fact that "the building permit, sheeting and shoring permit, and other permits for the project have expired or are about to expire," the letter requests that the issuance of all building permits for the project "be held in abeyance" by the city until a hearing before the review board can be held.

"The city has to be held accountable," Docter said in an interview last week. "The way the whole situation is being handled makes a mockery of the city’s ability to manage the development of this site."

But city officials who received Docter’s letter said they lack authority to force a resolution to the problem – or believe that the authority lies with a different agency.

Ellen McCarthy, a senior official in the Office of Historic Preservation who met with Lynch and Docter to discuss the points raised in Docter’s letter, said that her office doesn’t have the authority to act.

"I love Terry Lynch, and I’d love to do something about the situation," she said. "We did talk to the developers. We told them that it’s a blight on downtown." But, she said, "I can’t force someone to go forward with a building."

Nor can her office hold up building permits, McCarthy said.

"We never have the power to hold up permits. DCRA is our permitting agency," she said. "They deal with the permitting."

But DCRA spokesman Douglas said that since the Atlantic is a historic building, DCRA does not have authority to review the matter. She said Docter’s letter would be forwarded to the Historic Preservation Review Board – which operates out of the Office of Historic Preservation, but whose decisions are independent of it.

"I don’t know quite what we could do," said HPRB chairman Tersh Boasberg. "We don’t have anything to do with permits – that’s DCRA."

In addition, he said, "We’d have to get something officially before us. We don’t act on correspondence" like Docter’s letter.

Maloney said that the city official who granted Bernstein and Clover special permission to demolish the Atlantic, an official known as the mayor’s agent, might have authority to revisit the issue.

"We raised that with the owners of the property," Maloney said. "And their attorney said they didn’t think the mayor’s agent had that authority – because they have a valid construction permit."

However, he said, "There is the other permit that has lapsed."

"It’s a legal question," he said. "Their lawyers say no – but we need to see what our lawyers say."

Sally Berk, a board member of the private planning organization called the Committee of 100, said the confusion at city agencies over who has authority to address the problem points up the flaws in the city’s regulations for pacts between the city and developers.

"It’s a mistake when the developer is just granted all the permits like this," she said. "They should first be required to post a performance bond." And, she said, "There should be an expiration date on when they have to have the project finished by."

Maloney acknowledged that changes to city regulations are needed. "This has been an embarrassment for us," he said.

He said that the Office of Historic Preservation is now in the midst of a review of its regulations, including those for mayor’s agent’s agreements. He said he expects that performance bonds or other enforcement provisions will be added to the mayor’s agent rulebook.

Maloney also said that Mayor Anthony A. Williams and other senior officials have been made aware of the Atlantic Building controversy. He said the issue was raised in the mayor’s presence at a recent meeting convened by the D.C. Preservation League, a private organization.

"And I let (the developers’ lawyer) know about that, that this is now on the mayor’s radar screen," Maloney said.

But the project’s critics say they have yet to see any evidence of that fact.

"Once again, (the mayor) is leaving it to neighborhoods to do the city’s job – protecting historic buildings and taking care of the economic development of the city’s neighborhoods," said Lynch.

Berk said city officials "should realize it isn’t just preservationists concerned here."

"It’s every property owner in that neighborhood, and everybody who’s concerned about the revitalization of downtown Washington," she said.

Copyright 2002, The Common Denominator