IN THE MATTER OF: In the Matter of th St, NW - HPA # & # Page 1 of 5 Pages

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1 IN THE MATTER OF: GOVERNMENT OF THE DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS Office of Adjudication 613 G Street, N.W. - Seventh Floor P.O. Box Washington, D.C (202) th St, NW Nos & DECISION & ORDER Background On or about March 1, 1989, Cassandra Sneed Ogden, Esq., the previous Mayor's Agent for D.C. Law issued an Order in the above captioned matter in which she ordered that the Applicant only be issued "certificates of occupancy on the condition of the continued provision of the designated 3,500 square feet of arts space, as shown on the plans entered into the record in this case as Exhibit #35." Said Exhibit provided for a division of the 3,500 square feet in the House and Herrmann building as follows: approximately 1,000 square feet will be at the street level and approximately 2,500 will be provided at the B-l level with an interconnecting staircase. The space is to be exclusively devoted to arts use for the life of the project and will be provided rentfree for the first 10 years on the condition that the users pay for all operating expenses associated with the space. On or about August 24, 1992, C. Neal Fleming, Jr., President of Development Resources, Inc. wrote to Mr. Albert Dobbins, III, Director of the D.C. Office of Planning and represented that while the project was substantially completed in the Fall of 1991, "...[m]ost potential "art users" have found the 2,500 square feet below grade space to be undesirable. They would prefer to have the 1,000 square feet street level space and the 2,500 square feet below grade space as one contiguous 3,500 square feet above grade..." Accordingly, Mr. Flemming recommended that 3,500 square feet Page 1 of 5 Pages

2 of mezzanine level contiguous space be substituted for the 2,588 square feet below grade area and the 1,000 square feet street level. The previously designated 1,000 square feet of street level arts space would be reserved for retail. All other provisions regarding the dedication of the arts space for the life of the project and that the space be provided 'rent free' for the first 10 years on the condition that the users of the space pay for all operating expenses would remain. On or about September 9, 1992, Mr. Dobbins, III, Director of D.C. Office of Planning endorsed the recommendation of Mr. Flemming and requested that the Mayor's Agent modify the previous Order to permit the desired change. Status Hearing After reviewing Ms. Ogden's Order, the transcript of the hearing and the record as established, the undersigned determined that while the proposed changed appeared to be within the spirit of Ms. Ogden's Order, all original parties should be provided with a copy of Mr. Dobbins' memorandum and given an opportunity to voice their endorsement or opposition. A Status Hearing was set for October 28, 1992 with notice of the status hearing and copies of Mr. Dobbins' memorandum sent to all parties of record, including the Advisory Neighborhood Council (ANC). At the Status Hearing held on October 28, 1992, Mr. Gregory W. Fazakerley, CEO of Development Resources, Inc. and C. Neal Fleming, Jr., President of Development Resources, Inc. appeared and testified for the Applicant. Jacqueline Prior, Executive Director of the D.C. Preservation League, Bosco Lee, Chairman of the Chinatown Steering Committee, John Fondersmith, Chief of the Downtown Section of the D.C. Office of Planning, Alan Cheung, Member of the Chinatown Steering Committee, Duane Wang of the Chinese Consolidated Benevolent Association and the Chinatown Steering Committee, and Manny O'Valle of the Center for Asian Americans in Chinatown also appeared and testified. Mr. Steve Page 2 of 5 Pages

3 Raiche, Chief of the Historic Preservation Branch of the DCRA Building and Land Regulation Administration represented that no reply had been received from the ANC. Finding of Fact Based upon the Record as a whole, The Chief Administrative Law Judge makes the following Findings of Fact - 1. The Order of the previous Mayor's Agent, Cassandra Sneed Ogden issued March 1, 1989 provided among other things that - "...the Applicant only be issued certificates of occupancy on the condition of the continued provision of the designated 3,500 square feet of arts space, as shown on the plans entered into the record in this case as Exhibit #35. Said Exhibit provided for a division of the 3,500 square feet in the House and Herrmann building as follows, to wit, approximately 1,000 square feet will be at the street level and approximately 2,500 will be provided at the B-l level with an interconnecting staircase. The space was to be exclusively devoted to arts use for the life of the project and will be provided rent-free for the first 10 years on the condition that the users pay for all operating expenses associated with the space..." 2. The Applicant proposes a change to the original plan, to wit, that - "3,500 square feet of mezzanine level contiguous space be substituted for the 2,500 square feet below grade area and the 1,000 square feet street level. The previously designated 1,000 square feet of street level arts space would be reserved for retail. All other provisions regarding the dedication of the arts space for the life of the project and that the space be provided 'rent free' for the first 10 years on the condition that the users of the space pay for all operating expenses would remain." 3. The proposed change to the original plan remains within Page 3 of 5 Pages

4 the spirit of "special merit" of the original plan as approved by the previous Mayor's Agent. 4. Those present and testifying either endorsed the proposed modification or did not oppose it. (Tr of Status Hearing of Oct. 28, 1992) Conclusions of Law Based upon the Record as established and following Conclusions of Law are made - taken as a whole, the Jurisdiction 5. Applicant requested a modification of a previous Mayor's Agent's Order in the above captioned matter. Administrative Issuance 2-54A, dated July 18, 1991, delegated the authority of Mayor's Agent for Historic Preservation under sections 5 through 9, 12 and 13 of D.C. Law 2-144, the Historic Landmark and Historic District Protection Act of 1978 to the undersigned. Special Merit 6. D.C. Code defines "special merit" as a plan of building having significant benefits to the District of Columbia or the community services. 7. The proposed modification is consistent with the purposes of D.C. Law and will greatly enhance the project's contribution to the furtherance of the arts in the community. 8. The proposed modification will also be a benefit, both directly and indirectly, to the interests of Chinatown and the Chinese Community. 9. The proposed modification will further contribute to the "special merit" of the overall project. 10. The Applicant has sustained its burden of proof that the proposed modification is within the spirit of the Order of March 1, 1989 and is a furtherance of a project of special merit. ACCORDINGLY, it is this 7th day of December, 1992 ORDERED that for the reasons stated above, Cassandra Sneed Ogden's Order of March 1, 1989 is, and the same is hereby, modified with respect to the designation of the 3,500 square feet of Page 4 of 5 Pages

5 designated art space only; and it is FURTHER ORDERED that the 3,500 square feet be contiguous space on the mezzanine level of the House and Herrmann building; and it is FURTHER ORDERED that the previously designated 1,000 square feet of street level arts space would be reserved for retail; and it is FURTHER ORDERED that all other provisions regarding the dedication of the arts space for the life of the project and that the space be provided 'rent free' for the first 10 years on the condition that the users of the space pay for all operating expenses remain; and it is FURTHER ORDERED that all other provisions of Cassandra Sneed Ogden's Order of March 1, 1989 Law Judge, D.C. C. Law Page 5 of 5 Pages