The Board of Architectural Review, charged with maintaining the historical ambiance of the city’s structures, adheres to a complex set of rules and decides whether building alterations are legitimate based on a multifaceted and sometimes complicated process of applications and hearings.
For Old Town property owners whose proposed changes to their historic structures have been denied by the BAR and the City Council, some hope still remains.
A piece of historic preservation code exists in the city’s zoning ordinance that outlines steps or sidesteps that an owner can take to potentially make their previously denied proposal a reality.
That is, if the proposal is to at least partially demolish a structure and if the owner is serious enough about the changes that he or she is willing to sell their property rather than accept the proposal’s rejection, there could be a way to beat it, according to Code 10-108 of the city’s zoning ordinance.
“This gives them an option to sell the building, get out of it and if it doesn’t sell, then in some ways the market is saying that the restrictions on this building are such that we don’t want to buy it at the market value because we won’t be able to do anything with it either,” BAR member Peter Smeallie said.
Under the code, if the BAR has denied a proposal to “demolish or encapsulate” at least a portion of a building and the City Council has upheld the decision, within a year of the Council’s decision the owner can notify the city’s planning and zoning director of his or her intent to sell.
According to the regulation in place but attempted only twice in living memory the owner must make a “bona fide offer to sell” the property at “fair market value” in order to sidestep the BAR.
One of just two such recent instances when a rejected property owner invoked section 10-108 was resolved last month.
In June 2007, Michael Zarlenga had proposed to demolish some of the rear section of his 210 King St. property now the home of the adult boutique Le Tache so that he could raise the roof of the back portion of the building in order to make it “usable retail space,” he said.
Denied by the BAR and City Council, Zarlenga chose to pursue an appeal under section 10-108 in July 2008 and notified planning and zoning of his intent to sell the property at $2.4 million, roughly what he paid for the property two years earlier, according to city records.
While some consider the loophole to have a potentially negative effect, making it possible to undo BAR decisions intended to preserve Old Town’s historic fabric, it can also be viewed as a rights victory for owners whose means of utilizing their own property have been hamstrung by the BAR.
“The whole purpose behind 10-108 is that the city is, by denying my demolition permit under the historic preservation standards, basically decreasing the value of my property,” Zarlenga said. “There’s a bundle of rights that come with owning a property and they’re taking some of those rights.”
Smeallie said, “It wouldn’t undermine [the BAR]. I think it’s more of a property-rights issue.”
“It’s being fair to the owner, saying, ‘You sell the building, you’re getting your money because someone values what the BAR did,'” he said. “But if over a year at a fair market price nobody buys it you’ve got to give the owner an out.”
Successfully invoking ordinance 10-108 could lead to “disastrous consequences” in the sense that you could have one of the original historic buildings in the city demolished, Smeallie said. “That’s the side that is frightening.”
Combined with the right set of circumstances, an uncertain economic environment like that of the past year could lead to a city landmark being altered irrevocably.
As many as 25 fellow property owners in the district need to petition the listed value within 15 days, prompting the city manager to commission three outside appraisers to re-assess the property and provide a report “forthwith.”
In the event that at least two of the three appraisers find the listed value over the fair market price, the owner’s attempt to sell under section 10-108 is voided.
But if no petition is filed or the appraisers find the price to be around fair market value, an inability to sell any property worth more than $90,000 within a year would allow the owner to perform the demolition work that had originally been rejected, according to the code.
Other property owners filed the necessary petition and City Manager James Hartmann commissioned Robert Paul Jones, Roy R. Relph and Richard Parli to determine the listing’s relation to fair market value.
The appraisers’ report was due within a year after Zarlenga’s July 24, 2008 note to the city announcing his plans to sell 210 King St., said Lee Webb, part of the city’s planning and zoning department.
According to the ordinance, the city’s commissioned reappraisal report was supposed to have been reported to Zarlenga “forthwith,” but nearly a year’s worth of lag time passed, hardly forthwith, as the code requires.
The report was not filed and sent to Zarlenga until July 20, 2009, according to the certified letter from planning and zoning, just five days before his 10-108 appeal would have overturned the B.A.R.’s original decision. According to the opinions of two of the three appraisers, 210 King St.’s market value was somewhere between $1.75 and $1.9 million, still below its 2008 assessed tax value of $2.1 million.
“The statute doesn’t say ‘sometime in the one year period’ the statute says ‘forthwith’ three times,” Zarlenga said. “In my opinion, the city screwed up.”
A month after his final attempt to make changes to 210 King St. through the section 10-108 loophole had failed, Zarlenga said he’s still trying to sell the property and others in Alexandria because of the painful, drawn out process that has tra
nspired over the last three years.
“If it’s up to us, we’re moving out of the city,” Zarlenga said. “I want to divest of everything here and move out.”