In its quest to build a 250-foot arch near the National Mall, the Trump administration is arguing that a longstanding law restricting building heights in D.C. does not apply — to the project or to any federal structures at all.
The topic resurfaced at Thursday's meeting of the National Capital Planning Commission, the second federal body tasked with reviewing the arch. The first, the Commission of Fine Arts — an aesthetic-focused panel packed entirely with Trump appointees — quickly approved the administration's incomplete design in May.
The National Capital Planning Commission, in contrast, focuses on urban planning issues such as materials, placement and pedestrian safety. One of its three presidential appointees is Will Scharf, chair of the commission, who also serves as White House staff secretary and accompanied Trump on his trip to a NATO summit in Turkey this week.
The planning commission voted 8-1 on Thursday to approve the preliminary site and building plans for the arch, with three members voting "present." After more than two hours of public comment in opposition, followed by minimal discussion, the panel left the project team with more questions to answer before its next meeting in early September, and a promise to revisit the height question then.
"I'm guessing that we're going to have a vigorous debate on this subject when this project next comes before the commission," said Scharf.
At last month's meeting — when the commission cautiously advanced the project — Scharf planted seeds of doubt about whether the 1910 Height of Buildings Act applies to the arch, which would be built along the Arlington Memorial Bridge in Virginia.
"I believe, speaking personally, that the Height of Buildings Act is not applicable to federal construction," Scharf said, contradicting what he acknowledged was the "long-held" view of the commission he has led for the past year.
The Department of the Interior seems to side with Scharf. Ahead of Thursday's meeting, its Office of the Solicitor submitted a four-page memo arguing in part that the 1910 act — despite being federal law — is "just a local zoning ordinance and does not apply to the United States."
The planning commission responded with a four-page memo of its own earlier this month, outlining the law's legislative history and application over time.
"Since 1938, NCPC has operated with the understanding that the HBA was intended to bind federal projects and has applied the HBA accordingly," wrote Meghan Hottel-Cox, the commission's general counsel and secretariat.
Changing that, she said, would mean big changes not only to the commission's process but for D.C. itself.
"If the HBA no longer applies to federal property in the District, it could fundamentally reshape the city's architectural fabric, the balance of local vs. federal authority, and the visual character of the nation's capital," she added.
A White House official told NPR over email that the administration does not believe the Height of Buildings Act restricts the project, adding: "We expect the Arch proposal to proceed as-is."
That was the backdrop of Thursday's meeting, at which protesters rallied outside and over 40 people spoke out against the arch. They echoed a wide range of concerns reflected in the nearly 2,000 written comments the commission has received so far about the arch, as well as the lawsuit that Vietnam War veterans have brought against it.
Critics say the arch would block the historic view line between the Lincoln Memorial and Arlington National Cemetery and "desecrate" one of the nation's most hallowed resting places.
Many also take issue with the process, from the lack of congressional authorization and public buy-in in the first place to the speed with which it seems to be moving through the required environmental and historical preservation reviews.
"Our greatest memorials emerged through time, public consensus, and history's judgment, not the preferences of those holding office," D.C. resident Kristopher Reichert, who co-chairs the local chapter of the right-leaning, anti-Trump group Principles First, said during the meeting. "No administration, regardless of party, should claim the privilege of reshaping America's monumental core without first demonstrating the restraint that has defined our republic for nearly 250 years."
Why D.C. has height limits (it's not what you might think)
The lack of skyscrapers may be one of D.C.'s most distinctive physical features. Its tallest structure is the 555-foot Washington Monument, which can be seen from all over the city.
There is a lingering myth that height limits were created to protect views of the Washington Monument. In fact, they were borne out of more practical considerations, said Elizabeth Morton, a planning and urban design consultant who lectures at George Washington University.
In the 1890s, the city completed its first residential skyscraper, a 164-foot behemoth called the Cairo.
"That aroused a lot of concern from neighbors, both about fears of blocking light and air and also there were concerns — which were legitimate at the time in American cities at the time — about safety and the ability of firefighting equipment to actually reach the full height of those buildings," Morton said.
In response, Congress, which directly governed D.C. at the time, passed the first Height of Buildings Act in 1899, which exempted federal buildings from the limits. It passed a revised version in 1910, changing some of the height limits and quietly removing that exemption.
That law has shaped the skyline of the city ever since.
"It's really about the relationship of a building to the street and to the public realm around it," Morton said. "And it's also a way to preserve distance and view corridors … the sense of a procession through the city that tells a story."
The law grandfathered in certain existing structures, like the Old Post Office Tower (315 feet), and was amended several times to allow for individual exemptions, like the Basilica of the National Shrine of the Immaculate Conception (329 feet) and the National Press Club building (14 stories).
But exceptions have been rare.
"There hasn't been one in decades, as far as I know," said Sara Bronin, a George Washington University Law School professor who specializes in property, land use, zoning, and historic preservation.
The Interior Department now argues that federal buildings are exempt from the Height of Buildings Act in part because of the exemption that appeared in the 1899 version of the law. Bronin is skeptical of that argument.
She says the nature of the back-and-forth between the two federal agencies "suggests that this may be a matter that will show up at some point in court."
What this could mean for the arch
The commission has a recommendation for how the arch could comply with height restrictions without losing any inches.
In its report prepared for Thursday, the commission says architects would simply need to redistribute the height of the statue, citing a 2014 tweak to the law that allows a "20-foot habitable penthouse" to exceed the height limit under certain conditions.
It proposes lowering the arch's height from 166 feet to the maximum of 130 feet, and increasing the height of the gold statues on top — a winged woman flanked by two eagles — to 100 feet tall. That, plus a 20-foot penthouse, would keep the statue at 250 feet overall — but with very different proportions.
Morton says she appreciates the commission's attempt at a compromise, but thinks "the suggestion to make it even more top-heavy seems unwise."
"From an architectural point of view, if you've got a really big statue, there's a solid base at the bottom that psychologically holds it up," she says. "The function of [an arch] is as a gateway … and having a very large vertical element on top is really distracting and unsettling."
That recommendation went largely unaddressed on Thursday, as commissioners ultimately voted to postpone discussion of the height limits to the next meeting, "prior to taking final action on the project."
They also asked the project team to return with a justification for the proposed height. According to the report, architects did consider smaller designs but ruled them out because a lower opening obstructed more of the view between the Lincoln Memorial and Arlington National Cemetery.
"In addition, because the arch is intended to celebrate 250 years of American independence, the smaller heights were not considered representative of this milestone," the report says.
Priya Jain, who spoke at the meeting on behalf of the Society of Architectural Historians, said she would have liked to see proof that the Department of the Interior considered other sizes and sites for the arch.
"The applicant is required to develop and present alternatives that will mitigate the project's adverse effects," she said. "We believe this effort has been seriously lacking."
Jessica Bowron of the National Park Service — representing Secretary of the Interior Doug Burgum on the panel — said before the vote that the Interior Department would continue to move the project forward.
"On behalf of the department, I can certainly commit that we will continue to work to be responsive to the comments of the commission," she said.
The department has been asked to address a wide array of questions beyond the height limit, including implications for planes flying to and from the nearby Ronald Reagan Washington National Airport, safety and accessibility considerations for pedestrians and cars navigating the traffic circle where the arch would stand and whether construction noise could be mitigated so as not to disturb funerals at the nearby cemetery.
What this could mean for D.C.
Morton says the commission's decision on the arch could amount to a "hugely consequential ruling" for how the Height of Buildings Act is applied going forward.
"I would just really try to encourage the commission not to abandon decades of planning and decades of city building that guides the federal government with the Height of Buildings Act," she said. "I do feel like there are very well articulated principles that have made our city a world-class capital that are violated by this project."
Commission member Evan Cash was the sole vote against advancing the arch at both meetings. On Thursday, he reiterated his concerns about the arch's purpose and process before making the case that the Height of Buildings Act applies.
"We need to dispel the notion that the height act is simply local zoning," he said. "It is an act of Congress legislating for the nation's capital at a time when Congress directly controlled the district's government in 1910."
He said it was "staggering" that the Department of the Interior is arguing otherwise, and he worried it could set a precedent in which the commission decides the heights of future projects on a case-by-case basis.
"I'm not willing to lend my vote to plans that could have the effect of upending decades of [commission] practice and the century-old height framework, all without congressional authorization or a commemorative works process, for a project that — as far as I can tell — has only one real advocate, and that advocate is not Congress," he said.
Cash was presumably referencing Trump, who once told a reporter that the arch was for "me." The Department of the Interior says the purpose of the arch is to celebrate America's 250th birthday.
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