Over the last year and a half, a narrow, two-story building at 227 Pennsylvania Ave. SE—built as a grocery store in 1887 and boarded up since a fire in 2007—has undergone a dramatic transformation. Original brickwork has been restored. The doors are painted French blue, with the name of the occupant in bronze above them. A nine-foot-tall third floor addition sits on top, with a slate mansard roof and recessed glass doors under a graceful awning.

It’s the last piece that’s given the building’s new owner—the Heritage Foundation—a migraine since it bought the building in January 2008 and poured $3.9 million into renovations. The conservative redoubt might have to tear the third floor off altogether, if the D.C. Court of Appeals doesn’t rule their way.

Heritage’s persecutor? Another bastion of traditional values: The Capitol Hill Restoration Society, founded 50 years ago to preserve the neighborhood’s glorious architecture. The all-volunteer group, with total revenues of about $120,000 in 2009, has thrown $20,000 into litigation to prevent Heritage from adding a third story. Retroactively.

“This isn’t the first time that there’s been an addition on a historic building,” says Heritage’s director of administration Eric Korsvall, somewhat bitterly. “But it was the Capitol Hill Restoration Society’s backyard, and they wanted to oppose this one.”

CHRS’ involvement started as a desperate attempt to prevent renovations that could spawn imitators across the city. But after three levels of appeal, it’s turned into a battle for something even more serious to local preservationists: The authority of the Historic Preservation Review Board itself.

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You might argue that Heritage should have known what it was getting into when it bought a building on CHRS’ turf. But it didn’t have much of a choice: Heritage’s Massachusetts Avenue NE headquarters is a long walk from the House side of Capitol Hill—a disadvantage for lobbying. When a rare listing blocks from House offices became available in December 2007, Heritage jumped on it, forking over $2.275 million the next month.

Heritage wanted more space on top for a meeting room and executive offices, and had their architect work with the city’s Historic Preservation Office to draw up plans that would pass muster with the review board. Along the way, the Advisory Neighborhood Commission, Capitol Hill business groups—even the federal Commission on Fine Arts—all signed off the plans.

Still, the Historic Preservation Office staff wanted the addition to be set back 25 feet to minimize its visibility. In September 2008, with CHRS pushing for no addition at all, the review board approved the staff’s recommendation as a “compromise.” From Heritage’s perspective, that would have made the renovations—which they had already started, after obtaining separate approval for the bottom floors—not even worth the cost.

Heritage immediately appealed to the next level: the mayor, who has the authority to approve building permits in historic districts. For years, an administrative law judge had served as the Mayor’s Agent, before Adrian Fenty installed his Office of Planning director, Harriet Tregoning, in the role.

In a December 2008 hearing, arguments came down to a fundamental question: Does the Historic Preservation Act allow alterations that contribute to the overall architectural quality of the building? Or must the original intent of the builder, and the historic character of the block, be privileged above all else?

Then-HPRB chairman Tersh Boasberg set the stakes high: “Because of precedent, if we were to add a third story or a fourth story to all of the buildings who came before us in this similar circumstances, then the character of Capitol Hill would be terribly changed.”

Why “terribly?” Because the varying heights of buildings, which create a “sawtooth roofline,” are one of the reasons Capitol Hill became a historic district in the first place. A third floor would mar the historic integrity of the existing building, upsetting the harmony of the two floors, and distract from the decorative brickwork on the top cornice.

Though buildings have been altered over time, CHRS’ point person for the lawsuit, Nancy Metzger, argued for a higher bar. “[Earlier] residents only had to consider whether an alteration suited their needs and if it was pleasing or fashionable,” she said. “Today…we also need to consider how not to impact on the integrity and visual reading of the building.”

Heritage sides with originalists when it comes to the Constitution, but not on remodeling. “One of the reasons preservation has enjoyed a reasonable level of support… in this city is that the act has generally been interpreted to mean that designated buildings and districts are not frozen in time,” pleaded Heritage’s architectural historian, Anne Adams. “Cities are living, breathing things and they must adapt.”

In her decision nine months later, Tregoning agreed, finding that Heritage shouldn’t be punished because of the potential impact on later applications. The overall design was of high quality, and a roofline may not deserve protection.

But the most dangerous element of her analysis, from CHRS and Boasberg’s perspective, was the argument that the Mayor’s Agent owes no special deference to the HPRB. Tregoning, who has no formal legal training, was one of the biggest reasons preservationists campaigned against Fenty; the idea that her word would trump the authority of a slate of experts in the subject seemed like a body blow to the city’s preservation regime. (And now, Metzger’s name is in play for a board nomination—so the decision could affect her own future authority.)

A month after the decision came down in September 2009, CHRS appealed in court. Oral arguments, heard last month, revolved largely around whether the Mayor’s Agent owed any deference to the review board. The city’s two other preservation heavies, the D.C. Preservation League and Committee of 100, filed a joint brief siding with CHRS on that issue specifically (while remaining neutral on the rest of the case).*

Now the three-judge panel could uphold Tregoning’s decision, affirming her assertion that the Mayor’s Agent can review cases de novo. It could allow Heritage to keep its top floor on its merits, but reject the notion that the Mayor’s Agent owes no deference to the HPRB. Or it could make Heritage tear off the addition and say that board decisions must be respected.

The renovations to Heritage’s building are now long finished. The granite-and-mahogany-trimmed meeting rooms hosted its first lunches last July, while the third-floor executive office—which CHRS wants torn off—hung with framed reproductions of the Constitution.

As we stand outside on the sidewalk, Korsvall regards the buildings to Heritage’s left and the right—historic, to be sure, but not nearly as immaculately maintained. One has an air conditioning unit on the outside, another a tattered awning.

“Couldn’t they care about that part of historic preservation?” he asks.       CP

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* This sentence was clarified to reflect the fact that the Committee of 100 and D.C. Preservation League weighed in only on the question of the Mayor’s Agent’s deference to the HPRB, not the appropriateness of Heritage’s addition.