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Preservation Police: Lock The Doors!

On a March day in 2003, staffers from the D.C. historic preservation office arrived at Laura Elkins' and John Robbins' house accompanied by D.C. police. The visitors had a warrant to search the house. "The officials went throughout the home (including the bedrooms of sick children home from school), opening drawers, observing, and taking photos," says a new opinion by federal court Judge Rosemary Collyer. Elkins' daughter, then 14 and suffering with a high fever, hid under the covers while the police searched her room. When Elkins' son, then 17, tried to eat breakfast, city inspectors ordered him to leave the kitchen.

Elkins' crime? She lives in the Capitol Hill Historic District, applied for permits to renovate part of her house, and was granted those permits. But after the city approved the renovations, neighbors complained, and Elkins' nightmare began. As the court puts it in a memo dismissing portions of both Elkins' and the District's cases, even though a hearing officer decided that the family had properly obtained its permits, "Historic Preservation Officer David Maloney second-guessed the original approvals and sought to stop the project, asserting that [Elkins'] construction was inconsistent with the historic character of the neighborhood."

Both Elkins and Robbins are architects; Elkins works primarily as an artist, a painter whose works are often shown in local galleries. The renovation was intended largely to create studio space for her.

Even as D.C. officials assured the courts that Elkins' building plan was perfectly fine, Maloney "seems to have organized a campaign against the construction," the court said. The city switched gears, obtained a search warrant in an effort to the family's plans and construction records, and staged their raid. They seized documents, receipts, invoices and Elkins' notebook.

Elkins took the city to court and won suppression of the evidence; a hearing officer ruled that the District had no right to search the family's drawers for records, though he endorsed the city's concern that a sloped roof that Elkins planned to build might be out of place in the historic neighborhood.

Elkins took her case to federal court, alleging that the city violated her due process rights and illegally searched her house. Now Collyer has ruled that the city violated Elkins' Fourth Amendment protection against unreasonable search and seizure. And while the judge acknowledges that the city has a right to enforce its land-use restrictions, she nonetheless slaps the District for failing to inform the family of its rights to appeal the city's decisions against them. In the spring, a separate trial will determine the damages the District must pay to Elkins.

The horror stories about the District's preservation police keep on coming. When a federal judge who notes the importance of maintaining good land use practices goes out of her way to criticize the city's chief preservation officer for improper and overzealous behavior, there is a problem, one that the city's highest officials need to address.

By Marc Fisher |  January 29, 2008; 7:00 AM ET
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Comments

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"The horror stories about the District's preservation police keep on coming."

Except that the Lucas situation wasn't a "horror story" to people possessed of all the facts.

At the moment, we seem to have one horror story, and holding.

Posted by: Nature of the beast? | January 29, 2008 7:53 AM

Thank goodness Maloney was doing his job instead of looking at porn on the internet.

Posted by: Anonymous | January 29, 2008 9:02 AM

The historic preservation people would preserve a trash dump or drug dealer's street corner if it originated from before 1980. And they'd fight anyone to the death who wanted to clean up the place.

Posted by: Ryan | January 29, 2008 9:02 AM

I thank the lordie that I live in a non-protected non-histerical area of NE! Built a nice addition on the house with no problems at all. I would never move into an area that has an Historic Preservation designation or some kind of neighborhood association.

Posted by: johng1 | January 29, 2008 9:23 AM

David Maloney your name is mud. The preservation storm troopers are out of control, yet Hiznewhonah Mayor Fenty would rather yell at some poor, underpaid social workers.

Posted by: Dwayne Elizondo Mountain Dew Herbert Camacho | January 29, 2008 10:02 AM

Please, lord, keep Bloomingdale out of the clutches of the historic preservation society. I do NOT want to have to deal with this grief!

Posted by: Bloomingdale, DC | January 29, 2008 10:10 AM

Who was the judge who granted the original search warrant? It's disturbing that he didn't laugh them out of court.

Posted by: Anonymous | January 29, 2008 10:19 AM

Maloney was not historic preservation officer in 2003...do your homework, Marc!

Posted by: Nixon | January 29, 2008 10:29 AM

Hello, Nixon, It doesn't say that Maloney was an historic preservation officer in 2003; it says that the illegal search took place then...please read before you comment!

Posted by: Just reading... | January 29, 2008 10:42 AM


OMG!! LOL!!! CAN U SAY AGENDA? Can the Post tell when someone deletes a bookmark? *click*

Posted by: reader | January 29, 2008 11:11 AM

He's a columnist. He's supposed to have an agenda. That's part of being a columnist. Idiot.

Posted by: Bob | January 29, 2008 11:30 AM


It seems that there may be, or at least there may have been, some overzealous enforcement of their ordinances by the HP office staff. That would be a procedural violation (assuming Marc Fisher has presented the entire story accurately), and the Post would be right to expose it.

In the recent Christian Science Church and Lucas family cases, there have been no such procedural violations. It's beginning to become more clear that Marc Fisher's issue is not with the "preservation police" alone, but an aversion to Historic Preservation as a policy.

As it does with other op-ed articles, it might be beneficial to the readers if the Post would offer a counterpoint to this type of position piece from now on.

Posted by: Sean | January 29, 2008 11:32 AM

Judge Collyer found that the violations of the Elkins' Fourth Amendment rights were so egregious that not only the city but Mr Maloney and Ms Toni Cherry - who were named specifically in the ruling - may be held liable for both compensatory and punitive damages. That's highly unusual and shows this was more than simply a procedural issue. And the narrative and language of her decision were both striking in their specificity.

In the Lucas case, HPRB refused in its first hearing to even consider ADA regulations, and the U-S Department of Housing and Urban Development's Fair Housing Section is continuing its investigation of the city's treatment of elderly and disabled residents in this case. HPRB *WAS* in violation of the Lucases rights by denying them immediate consideration of their disability needs. And the Assistant Secretary for Fair Housing, Kim Kedrick, determined that for herself. This case is NOT over, as far as Uncle Sam is concerned.

In Third Church, once again, the HPRB refused to give immediate consideration to a federal civil rights law (RLUIPA). The Becket Fund for Religious Liberty and other civil rights groups have warned HPRB that they are in violation of the law.

In all three cases, the Preservation folks acted first, and worried about civil rights issues later. And in at least two of these cases, employees were quoted as saying the city is not bound by federal fair housing or certain civil rights laws. (One fool had the stupidity to tell that to Asst Sec Kendrick.)

We truly need a strong and responsible Historic Preservation Office to safeguard the magnificent history and texture of our city and protect us from unwise or greedy developers and property owners who would maximize density and profit to the detriment of others. But we cannot tolerate unelected bureaucrats who fancy themselves as beyond the reach of federal civil rights and human rights laws.

HPRB disregarded the wishes of the Deputy Mayor for Economic Development in the Third Church matter, and its Chairman openly scoffed at the Deputy Mayor's objections in a radio interview. Mayor Fenty has since named four new members to the Board. Perhaps this is the beginning of change. This is yet another mess that the Fenty Administration has inherited, but there are indications the Mayor's people are trying to make OHP and HPRB more responsive to citizen input and to the law. I wish Mayor Fenty, Mr Albert, Ms Tregoning and the new board members the best of luck.

Posted by: Preservation, but reform | January 29, 2008 1:12 PM

At what point will Hiznewhonah abolish this department? If he spent more time governing and less time on his Blackberry, perhaps he would get something done.

Posted by: Anonymous | January 29, 2008 2:12 PM

Sorry for the late post. It took me more than a day to obtain the relevant documents and there's a bit to read.

Fisher's take on this appears to be another unfair characterization. (I posted about the "Lucas family case" Monday. I don't know much about the "Third Church" case yet, but I'll get back to you.) I'm no lawyer, but from what I see, it looks like the judge in this case dismissed nearly everything, simply giving the plaintiff the opportunity to continue to sue.

Would it surprise readers to find that there just might be--might be--another side to the story presented in a Marc Fisher article?

I admit I'm getting much of what's not in the legal documents second or third hand, but here's another perspective. Obtaining a permit only to raise the roof on a back addition, the owners extended the addition and put in another floor. The government received neighborhood complaints about the project violating the zoning ordinance and preservation laws, substantively and procedurally, because of its size and its exceeding approvals. The permits were not completely revoked mainly because of confusion at the Department of Consumer and Regulatory Affairs (this apparently has gone on for years), but the owners were required to make some changes to the building.

Long story short, the building inspectors asked the owners for an interior inspection to see if another floor had indeed been added, contrary to zoning. They were refused admission and had to resort to getting a warrant. Of course, in order to inspect the new floor, the inspectors had to go upstairs. It may have been an inconvenient time for a visit, but because the owner had refused entry, the inspectors had no appointment this time.

As far as I can tell, the civil rights issue revolves around a notebook of the owner's that contained the actual construction plans the builders were using. These plans differed from the plans submitted to the city. I'm told that building plans are supposed to be kept on site during a project, both for the use of the builders and for inspection purposes. So the historic preservation inspector asked for the plans. The property owner was the one that looked through the drawers for them and handed them over, in the presence of her lawyer. I assume that the inspectors took photos for proof of what they witnessed. It looks like Maloney (aka "Mud") wasn't even at the house, so I can't tell yet why he's included, but the owner seems to claim that he orchestrated everything.

Readers may decide for themselves whom they believe (I wasn't there, were you?). If I were the property owner, I'd probably try to paint this in the worst possible colors--and if I were the government, in the best. Maybe there was nothing to the complaints to begin with, and there was some pre-existing dispute between some of the parties? Both the court and the previous administrative judges suggest that there was something to the city's complaint against the owners. It is not implausible to think that where there was smoke there was fire if the city spent so much time on the case. Question: Should the city be allowed to enforce building regulations, or can they be ignored if the owner simply refuses to answer the door? (Of course, one might say the same thing about Marc's articles, but they seem to be all smoke.)

One thing I have noticed about Marc Fisher's articles and posts is that not only are the stories unbalanced, but so is the sourcing. You can generally tell who fed him the story because they are quoted extensively, even exclusively. He seems disinclined to hear alternative opinions. In other words, if anyone out there has a beef and it fits in with Fisher's usual gripes, you have a ready ear and perhaps a champion, flawed as he is. I had previously recommended an alternative motto for the "Raw Fisher" column: "Not even half baked." I have another one: "Axes ground here." (Hey Metro editor, these first ideas are free, but I'd like to have my own column, please! I feel I should be compensated for doing the research that Marc fails to.)

Posted by: Anonymous | January 31, 2008 11:21 AM

1- Why bother searching for the plans in a bedroom (or anywhere in the house) when copies of the plans are kept at both HPO and DCRA offices, which could then be compared with what was actually constructed?
2- You weren't there, but were your sources?

Posted by: just two questions | January 31, 2008 7:55 PM

In case it wasn't obvious, the questions were directed at whoever posted at 11:21 AM on Jan 31st

Posted by: just two questions | January 31, 2008 7:56 PM

to the idiot who posted on 1-31 @ 11;21 (you must work for Historic Preservation), are you saying the judge erred on her decision? That she was not given the facts? How stupid can you be?

Posted by: Anonymous | February 1, 2008 2:32 PM

Always nice to see the Historic Preservation people rewriting history. Nice try, Tersh, but it won't wash.

Posted by: seen it all before | February 1, 2008 3:10 PM

1. This particular topic doesn't seem to be all that topical. It's not even the biggest ongoing "preservation police" controversy. It's nice that Marc Fisher continues to look out for the little guy, but this time it seems like he's purposefully baiting an argument.

2. It's OK to oppose governmental regulations if you're willing to have a rational discussion, but you undermine your position when you call people names.

Posted by: Essay | February 5, 2008 11:49 AM

Another thing to consider is that historic preservation (in Georgetown at least) is incredibly hostile to lowering our energy use, through the installation of modern windows and other modern energy-saving devices. I sat through a meeting of the Old Georgetown Board (federal board that reviews all work in Georgetown) last week and saw an applicant raked over the coals for having the temerity to suggest the old single-pane windows in a non-descript 19th-century building were unworthy of being repaired and reinstalled.

Crappy old single-pane windows are perhaps some of the biggest "energy hogs" around. One of these days we're going to have to decide what's more important: lowering energy use, or encasing places like Georgetown in amber. Right now "historic preservation" seems to have the upper hand, to an extreme degree. Sooner or later these competing interests will have to be sorted out.

I dare not give my name, since I frequently appear before the OGB.

Posted by: No name | February 11, 2008 4:57 PM

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