After a five-year battle, Arent Fox secured victory for long-time firm client The Tabard Inn in its opposition to a plan for a massive structure at 1743-1755 N Street in Washington, DC, that would have had serious adverse physical and economic impacts on the historic inn, a Washington institution. On Tuesday, June 8, 2010 the District of Columbia Board of Zoning Adjustment (BZA) voted unanimously to deny N Street Follies' application to construct a 98-room, five-story hotel that would occupy 100 percent of its lot and loom directly over Tabard's signature space, its famed dining room and garden patio.

The BZA's decision marked the end of the road for N Street Follies' plans to build the proposed hotel, which began in March of 2005 and included 10 hearings before the BZA, four Historic Preservation Review Board (HPRB) meetings, and an appeal, on procedural grounds, before the District of Columbia Court of Appeals. Arent Fox attorneys Kinley Bray and Richard Nettler, along with Arent Fox's Director of Planning and Land Use Ellen McCarthy, handled the matter.

The Fight to Save a District of Columbia Landmark

The Tabard Inn is a contributing building in the Dupont Circle Historic District and has existed as an inn and restaurant since 1922. It is the oldest continuously-operating hotel in the District of Columbia. The Tabard’s location, in the 1700 Block of N Street, N.W., is recognized as one of the most architecturally-significant streets in Dupont Circle. The block was once home to many socially- and culturally-prominent Washington residents, including Presidents Theodore and Franklin Roosevelt, and Robert Todd Lincoln, son of President Abraham Lincoln. Aside from a single apartment building in the middle of the block, the block remains essentially as it did in the earliest part of the twentieth century.

The firm's team began representing The Tabard Inn and other citizens in the Dupont Circle area in the early 1990s when N Street Follies sought approval for an 11-story office building on the site, which the company acquired in 1988. The Zoning Commission refused to set that case down for hearing, finding the proposal too massive and out of character with the low-scale residential block. The team then assisted in the creation of the Dupont Circle Zoning Overlay, which now restricts the type of planned unit development N Street Follies proposed at that time, and also established additional protections within the Zoning Regulations for historic properties.

In 2005, N Street Follies applied for a special exception and variance relief to construct a seven-story hotel immediately adjacent to the Tabard Inn. The application took advantage of a loophole in the underlying zoning that allows hotels approved by special exception to occupy 100 percent of their lot and up to 4.0 floor area ratio (FAR), while commercial uses are restricted to 2.5 FAR, and residential uses are limited to 80 percent lot occupancy. While the case was pending before the BZA in 2006, the HPRB denied the building concept in a parallel but separate proceeding. Upon motion by The Tabard Inn, the BZA dismissed the zoning application as moot, since any construction would have had to be consistent with both the Historic Preservation Law and the Zoning Regulations. The developer appealed the decision to the District of Columbia Court of Appeals, arguing that the historic and zoning approval processes are parallel and not dependent upon one another. The appellant contended that District of Columbia Law did not require one process to be completed before the other, and therefore the risk that one body may disapprove the plans was the applicant’s. Regardless of the HPRB's decision, the developer claimed it was entitled to a decision by the BZA on the merits of the plans before that body. The appellate court agreed, and in 2008 remanded the case to the BZA for proceedings consistent with its opinion.

On remand in 2009, the developer revised its plan and proposed to convert the six existing historic buildings on the subject site to a single hotel building with a massive five-story addition in the rear, separated from the original historic structures by an interior closed court which would not be visible by anyone except from inside the building. The design placed the tallest and bulkiest portion of the development immediately adjacent to The Tabard Inn, specifically where it would have the greatest impact on the light and character of west-facing hotel rooms and the garden. The proposed development would have reduced the daily duration of sunlight — both direct and indirect — adversely impacting its restaurant and wedding business, which accounts for approximately 45 percent of the Inn's revenue. The Arent Fox team vehemently opposed the project as proposed, insisting that it was out of character with the low-scale residential nature of the block and harmful to Tabard. The Tabard Inn, through its attorneys, urged the BZA to enforce the existing regulations, which require a proposed special exception use to be “in harmony with the general purposes and intent of the Zoning Regulations and Zone Maps (including the Dupont Circle Overlay),” and shall not adversely impact existing uses and structures on neighboring properties.

Between the conclusion of the hearings and the BZA's decision meeting, the Historic Preservation Review Board denied the applicant's revised concept application, finding that it was not sensitive to the existing low-scale development on the block and specifically posed a threat to the historic Tabard Inn. Then, the BZA unanimously voted to deny the application for special exception, finding that the project was “too big,” “too massive,” and “too bulky.” Upon deliberating, the BZA stated that The Tabard Inn had demonstrated that it would experience real and substantial harm if the project were constructed—therefore the Applicant had not met its burden of proving that the use would be in harmony with existing uses on adjacent properties. Moreover, the BZA found requiring the applicant to make changes to the plans to protect adjacent property was not sufficient to overcome the threat to the Tabard and other adjacent properties. Too many changes and additional hearings would be required, and that it was indeed the applicant's risk to take, as N Street Follies had argued at the District of Columbia Court of Appeals.

Smart Development Requires Smart Lawyers

Development in the District of Columbia requires a legal team that has the ability to successfully navigate the intricacies of local and federal land use approval processes, managing an often adversarial process in a cooperative, constructive, and fruitful manner. Washington, DC’s diverse and politically-sophisticated population necessitates a legal team that is known for its integrity among the civic associations and community activists whose support is often critical to obtaining the necessary agency approvals—as demonstrated by the instant case. The case exemplifies Arent Fox’s strengths on a wide range of questions in real estate and municipal law, including historic preservation, zoning, building code regulations, property taxes, and appellate litigation.