How important is the setting of a historical building that is protected by law from "inappropriate" exterior change?

The issue of the garden setting of a protected house is being raised for the first time in Washington in a Superior Court lawsuit asking the court to enjoin Mayor Walter Washington and others from issuing a building permit.

Back of the lawsuit is a determination to prevent, if at all possible, the building of townhouses in the garden behind Martin F. Malarkey Jr.'s house at 1534 25th St. NW. This has long been known as the Robert A. Dodge house, since it was built for Dodge, a son of the wealthy shippers, about 1850 by the famous architecture and landscape firm of Downing and Vaux.

Those who are fighting the rise of two townhouses in the garden (40 feet would be required of Q Street frontage) argue as follows:

The Italian Villa Style of the house requires as much lawn and open space as possible. Andrew Jackson Downing (who had been named to develop the Capitol, White House and Mall grounds, though he drowned in a steamboat accident before he could do this) always insisted on as much open green space as possible. The reduction of the 120-foot, garden by 40 feet would seriously damage the green-space setting for the historic and protected house. (All except the actual dwelling house is open garden, one of the largest remaining in Georgetown.)

Mayor Washington has had the advice of the Fine Arts Commision - advice to deny permits to build on this property - for more than a year, without asking the commission for further information on their reasons for recommending no building, and without calling for any hearings on the matter.

The mayor has not notified the area Advisory Neighborhood Council of the proposed granting of permits to build on this land, so that local residents could respond.

Malarkey, president of a management consulting firm for cable television, points out the taxes are very heavy, and furthermore if the townhouses are built, he would have more privacy and use of his own garden.

As for the claim that Downing insisted on green space, he notes that the house sits right on 28th Street with no open space in front of it, and the garden, he says, was a total mess until he began restoring it when he bought the house 10 years ago. Also, the townhouse will sit on land that was occupied by carriage houses, he said, until about 1890 when they were torn down.

Also, the back part of the garden is land acquired by purchase many years after the house was built, he said.

An unincorporates group called the Q St. Preservation Committee, represented by Harvey Daniels, attorney, and joined by Katharine A. Sullivan (whose property adjoins the disputed area) have marshalled many opinions agreeing the land should be left open.

The mayor has a pile of letters from prominent people - W. Averell Harriman, Charles Percy, Alice Acheson, Kay Hale and Susan Mary Alsop among them. all protwsting the building of townhouses in the garden.

The Fine Arts Commission's chairman, J. Carter Brown, asked the Justice Department if his commission in fact had the authority to consider the setting of a building, in making its recommendation for or against building permits. The Justice Department said yes, the commission does have that authority.

The Fine Arts Commission's role is advisory, and while the mayor is supposed to consider and weight it, he need not follow it. Architectural historians, landscape architects and associations concerned with historic preservation have joined the Fine Arts Commission in urging that no building permits be granted.

Malarkey pointed out that his lot, even after the townhouses are built, will be 120 by 50 feet.

His historic house, in other words, will still sit on an open lot a great deal larger thn 90 per cent of the other historic houses of Georgetown. Also the proposed townhouses will sell for $400,000 each, and are bound to appreciate land values in the neighborhood and add to city tax rolls. The space back of the house will still be large enough for Malarkey to have a swimming pool, he said.

Opponents say an important principle is at stake. They are not arguing that Malarkey's garden will be ruined, but that the present open space is a vital part of the house and should not be reduced.

The lawsuit asked for a temporary injunction against issuance of building permits, which the court denied. The court also denied a preliminary injunction. This has not been decided - if it comes to court it may take 18 months to resolve .

Meanwhile, the building permits should be issued within a few days, since there is no court order to stop.

The work can go ahead normally, in that case, and the houses could probably be finished before the court decided on a permanent injunction.

If a permanent injunction were to be issued after the houses were built, precedent suggests (there have been other examples in the city) the houses would stand, as legal nonconforming structures.

The plaintiffs (the Q Street Society) might ask for an emergency appeal to reserve the refusal of the Superior Court to grant a temporary or preliminary injunction.

Both sides agree that considering the setting of protected building is novel in Washington. The property owner maintains enough setting will remain, and that the area in dispute was never part of the "setting" anyway, while the preservationists maintain every foot is critical.