Forced Betting the Farm: How Historic Preservation Law Fails Poor and Nonwhite Communities

NOTE

Forced Betting the Farm: How Historic

Preservation Law Fails Poor and Nonwhite

Communities

ALDEN A. FLETCHER*

This Note discusses historic preservation law in the context of the rede-

velopment f‌ight over the Washington, D.C. neighborhood, Barry Farm.

The Note argues that historic preservation law is inadequately structured

to protect and preserve properties associated with poor and nonwhite

communities. The Note closely examines the efforts of Barry Farm ten-

ants to have their homes historically designated, and it shows how cur-

rent law placed unnecessary barriers in their path. As a remedy, the Note

recommends removing physicality requirements from historic preserva-

tion laws.

Unlike prior legal works—which have considered redevelopment and

historic preservation as separate phenomena—this Note explicitly dis-

cusses historic preservation as a tool to prevent redevelopment-based

dispossession and displacement. Thus, it refocuses the historic preserva-

tion debate by looking at who has access to the benef‌its provided by his-

toric preservation laws. It provides an original literature review of the

limited number of works that have addressed this question. It concludes

that a gap remains in identifying the systemic barriers to the preservation

of properties outside of wealthy, white communities. It then takes a criti-

cal look at the D.C. and federal historic preservation statutes. The heart

of the Note discusses the case for Barry Farm’s historical merit and the

tenant-led effort to have the neighborhood designated. The experience of

the Barry Farm tenants offers a unique and valuable case study showing

the failures of current historic preservation law. All parties conceded

Barry Farm is historic, yet the property faced signif‌icant hurdles on the

path to designation. The Note concludes with a novel argument about

how and why historic preservation law should be changed to allow com-

munities to use it to prevent dispossession.

The Note comes at a time of heightened awareness of the structural

racism undergirding American society as well as a renewed realization

* Georgetown Law, J.D. 2020; Georgetown University, B.S.F.S. 2017. © 2021, Alden Fletcher. I

owe immense thanks to Professor K-Sue Park for her insights and guidance in the process of writing this

Note. Thanks as well to Professor J. Peter Byrne for his insightful commentary. Thanks to Detrice Belt

for generously giving her time to talk about the Barry Farm community and the historic preservation

case. Finally, thanks to the editors of The Georgetown Law Journal for their fantastic work under the

challenging circumstances of the COVID-19 pandemic.

1543

of the inequalities in access to historic preservation protections. It is also

one of the f‌irst pieces of legal scholarship to consider the Barry Farm

case. In addition, the Note offers a way forward to better protect the his-

tory of traditionally underserved and marginalized communities. It serves

as a useful resource for future efforts to use historic preservation law to

avert tenant displacement by chronicling the legal developments of the

Barry Farm case.

TABLE OF CONTENTS

INTRODUCTION . .. ... ... ... ... ... ... .... ... ... ... ... ... ... ... ... ... . 1545

I. BACKGROUND .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. 1546

A. LITERATURE REVIEW: PRESERVATION, DISPOSSESSION, AND MEMORY 1547

B. STATUTORY AND REGULATORY FRAMEWORK FOR HISTORIC

PRESERVATION IN THE DISTRICT ... ... ... ... .. ... ... ... ... ... 1552

1. Historic Designation Actors. . . . . . .. . .. . .. . .. . .. . .. 1553

2. Designation Criteria.. . .. . .. . .. . .. . .. . .. . .. . . .. . 1554

3. Protections Accompanying Historic Designation. . . . . . . 1556

II. BARRY FARM. ... ... ... ... ... .... ... ... ... ... ... ... ... ... ... . 1558

A. A BRIEF HISTORY OF BARRY FARM: 1867–2006.. ... ... ... ... ... .. 1559

B. DEVELOPMENT AND DISPOSSESSION: 2006–2019.. ... ... ... ... ... . 1560

C. FIGHT FOR PRESERVATION: 2019–2021 . .. ... ... ... .. ... ... ... ... 1562

III. LESSONS: HISTORIC PRESERVATION AS A SHIELD FROM ERASURE? . . . .. 1568

A. A PARTIAL VICTORY.. ... ... ... ... ... ... .. ... ... ... ... ... .. 1568

B. LOOKING BEYOND PHYSICALITY.. .. ... ... ... ... ... ... ... .. .. 1570

CONCLUSION.. ... ... ... ... ... ... ... ... ... ... .... ... ... ... ... ... ... 1573

APPENDIX A.. . .. . .. . .. . .. . .. . . .. . .. . .. . .. . .. . .. . .. . .. . .. . . 1575

1544 THE GEORGETOWN LAW JOURNAL [Vol. 109:1543

INTRODUCTION

[The land] was taken from them, just like it was taken, over and over again,

not just in Barry Farms, but in other developments. This has seemed to be a

history of how things are done, whether to displace people or whatever the rea-

son for them to be doing this.

–Paulette Matthews, Barry Farm Resident

1

A quick glance at a map of historic districts in the District of Columbia reveals

a stark, if unsurprising, pattern. These districts tend to cluster in predominantly

white, wealthy neighborhoods. By way of example, Georgetown, which com-

mands a mean household income of $250,437, possesses roughly 4,000 contribut-

ing historic buildings.

2

Anacostia, by contrast, has a mean household income of

$51,024, but only around 460 buildings are designated as historic.

3

This Note

asks why this is the case by examining the redevelopment of Barry Farm. Barry

Farm is a neighborhood and public housing development on the east side of the

Anacostia River.

4

Despite the neighborhood’s rich history dating back to

Reconstruction, the D.C. Housing Authority (DCHA or the Housing Authority)

slated it for redevelopment in 2013.

5

In an effort to save the community, the

remaining residents sought to have the neighborhood historically designated.

6

In

January 2020, the D.C. Historic Preservation Review Board (HPRB or the Board)

reached a surprising decision. After numerous rounds of hearings and negotia-

tions, the Board voted to preserve a small portion of Barry Farm.

7

Though a partial victory for the tenants, the Board’s decision shows the deck

was stacked against them. This Note argues that historic preservation laws, as

1. D.C. Off‌ice of Planning, Historic Pres. Review Bd., Historic Preservation Review Board Public

Hearing of October 31, 2019, CHAMP (Oct. 31, 2019) [hereinafter Hearing of October 31], https://play.

champds.com/dczoning/event/53, at 56:14–56:33.

2. See D.C. HISTORIC PRES. OFFICE, 2020 DISTRICT OF COLUMBIA HISTORIC PRESERVATION PLAN:

PRESERVING FOR PROGRESS 47 (2018) [hereinafter D.C. HPO]; WASH. D.C. ECON. P’SHIP,

WASHINGTON, DC NEIGHBORHOOD PROFILES 24 (2020) [hereinafter WDCEP] (using a half-mile radius

for mean household income for the Georgetown neighborhood). Aside from Georgetown, the

neighborhoods with the most contributing historic buildings are Capitol Hill (8,000) and Dupont Circle

(3,100), which command mean incomes of $162,010 and $153,588, respectively. See D.C. HPO, supra;

WDCEP, supra, at 9, 20 (using a one-mile radius for mean household income for the Capitol Hill

neighborhood and a half-mile radius for mean household income for the Dupont Circle neighborhood);

see also NAT’L TR. FOR HISTORIC PRES.: AFRICAN AM. CULTURAL HERITAGE ACTION FUND, PRESERVING

AFRICAN AMERICAN PLACES 40 (2020) (“Current estimates place the combined representation of

African American, American Latino, Asian American, Native American, and Native Hawaiian sites on

the National Register of Historic Places and among National Historic Landmarks at less than 8 percent

of total listings . . . .”).

3. See WDCEP, supra note 2, at 3 (using a one-mile radius for mean household income for the

Anacostia neighborhood); D.C. HPO, supra note 2.

4. See WDCEP, supra note 2, at 5. This Note uses the off‌icial name “Barry Farm” to refer to the

development. However, the neighborhood is colloquially known as “Barry Farms” to residents and

neighbors.

5. See infra note 123 and accompanying text.

6. See infra Section II.C.

7. See infra notes 211–12 and accompanying text.

2021] FORCED BETTING THE FARM 1545