jonetta rose barras: Removing vestiges of discrimination in DC

Near the end of the 19th century, Robert Terrell and his wife Mary Church went to purchase a home in LeDroit Park, then a predominantly white residential haven in racially segregated DC. Many of the houses carried covenants that prohibited the sale to certain people based on their religious affiliation or race.

A power couple before that phrase became part of the American vernacular, the Terrells had been teachers at the M Street School, one of the most prestigious Black educational institutions in the country. Later, he would be appointed the first African American judge on DC’s Municipal Court; she would become the first Black woman in the country appointed to a board of education in a major city, one of the most prominent African American suffragists, and, much later still, a force behind the desegregation of restaurants and certain other public establishments in the nation’s capital.

It’s not exactly clear how the Terrells managed the racial covenants of their time, considering they were only the second Black family to move into LeDroit Park, a neighborhood surrounded by fencing to keep it separate from nearby Howard University. The Terrells may well have relied on white friends to serve as surrogates, covertly purchasing the property. They remained in that house from 1899 to 1913; today it is a historic site owned by Howard University. 

In 1948, the Supreme Court ruled that racially restrictive covenants like those common in LeDroit Park and many other DC neighborhoods were unenforceable in the courts. The 1968 federal Fair Housing Act also made those types of restrictions illegal. 

Still, the covenants that do remain continue to wreak their own havoc. They serve as discriminatory vehicles to block development of what one expert notably and wisely called “accessible” — not necessarily affordable — housing and various kinds of commercial enterprises. 

Consider, for example, an effort currently underway to bring a new nightclub to a building at 14th and I streets NW in the city’s central business core. That property has a covenant created in 2008 by S. Jon Gerstenfeld to prohibit any establishment that serves alcohol after midnight, operates as a nightclub or offers comedic entertainment. 

As ridiculous as it sounds, it is an unfortunate truth.

Interestingly, Gerstenfeld hasn’t owned the property for years. Nevertheless, his daughter Ashley G. Wiltshire, a principal in the family business — SJG Properties — seems to have organized a group to oppose the new building owner’s application for an alcoholic beverage license, citing among other things, the covenant, according to knowledgeable sources, who requested anonymity. 

I called Wiltshire’s office, hoping to speak with her about her motivation; she didn’t return my telephone call. However, a day later, she sent an email asking me to forward questions. I asked again to speak with her in person. I have yet to receive her response to my request.

It’s all illogical to me. Discrimination frequently is. Isn’t it?

There are, after all, various other nightclubs downtown. And, even if, as some people have told me, there might be nude dancing at the proposed nightclub, there are such establishments around the city, including downtown near 16th and K streets NW.

“They are using it as a mechanism to control the demographics in the area,” said one source about the simmering battle around the use of the covenant as a commercial cudgel just as DC is attempting to bring back its downtown and reimagine uses of dozens of empty office buildings.

Sarah Shoenfeld and her colleague Mara Cherkasky may be DC’s foremost covenant experts. When I spoke with Shoenfeld earlier this week, she hadn’t heard anything about the Gerstenfeld restriction. She noted, however, the many ways covenants can still be used to exclude people on the basis of class or economic status.

“Some covenants require property to sit back a certain distance from the street. Some require buildings to be detached, to cost a certain amount to build; these are all ways to create economic exclusivity,” explained Shoenfeld, co-founder with Cherkasky of Prologue DC LLC, which created the highly praised “Mapping Segregation in Washington DC” project.

“There are so many other means of discriminating,” added Shoenfeld, during our interview.

Ward 3 Councilmember Matt Frumin discovered a covenant on his house in American University Park when he was about to purchase it. He told me that a legislative package he introduced in September, the Addressing Legacies of Housing Segregation in Chevy Chase Amendment Act, was designed to make clear that covenants there are null and void, including those found on several commercial sites and on the Chevy Chase civic core near Connecticut Avenue and McKinley Street NW.

Residents and businesses in that area have been engaged in an intense debate over renovation of the public library and adjacent community center. Mayor Muriel Bowser’s administration has proposed selling the air rights over the library to allow for construction of rental apartments.

Frumin said that he and his staff were considering how to advise his constituents about handling covenants on their homes when they learned of those affecting sites in Chevy Chase, including parcels where Wells Fargo Bank and Safeway are located.

The covenants placed by the Chevy Chase Land Co. — some of them dating back to 1906, according to Frumin — sought to prohibit the construction of apartment buildings along a large swath of Connecticut Avenue. It’s a classic example of what Shoenfeld described, given that the covenants appear to have been aimed at creating an exclusive economic enclave featuring certain types of storefronts and surrounded by single-family dwellings — with larger residential buildings limited to a few areas.

Whether they’re enforceable today is subject to debate — local zoning laws supersede them in many circumstances.

“Nevertheless, we thought for the sake of clarity, it would be useful to do legislation to say that they are null,” added Frumin. 

In actuality, he may be trying to get ahead of residents who oppose construction of so-called affordable housing at the Chevy Chase civic core. He noted that some of them have “invoked a Frankenstein idea of what might be coming.” 

“If what we get out of this process is Frankenstein, I will oppose it,” Frumin told me, explaining that for him a monstrous design would be a “90-foot-high building that’s just luxury apartments.”

Lisa Gore, chair of the advisory neighborhood commission in the Chevy Chase area, said many residents have come to oppose the development because they felt their voices weren’t being heard. Under her leadership the ANC spent more than $1,000 to develop and distribute a survey; it’s still active online until Nov. 5.

“We’re trying to get to the nitty-gritty of how people really feel,” she added. Gore, who lives in the eastern portion of Chevy Chase, is running for the Ward 4 DC Council seat against incumbent Janeese Lewis George.

Gore acknowledged that residents by and large want to ensure the character of the community is not dramatically altered. They don’t want buildings that overshadow their homes and area businesses. And they want to retain green space at the site, especially since there is so little of it.

Frumin doesn’t seem to disagree. He said the development shouldn’t “loom over the residential neighborhood … . It needs to have underground parking so that you’re not using up the surface area for parking, and you’re able to use it for other kinds of purposes. 

“It needs to have a generous amount of affordable housing. I don’t want to get out there saying, ‘It has to all be affordable housing,’ because you need to make the economics of this work. 

“But I think as much as possible, we should have affordable housing,” he added.

I understand residents’ arguments about preserving the architectural character of the neighborhood, the height, the look, the feel of the place. Those types of demands are not unique; I have heard them voiced across the District, including in middle-class communities in Ward 8 such as Anacostia and Congress Heights.

Is it possible for Mayor Bowser to achieve her stated affordable housing goal of 12,000 by 2025 spread across the city? Maybe — if she doesn’t continue to squeeze small neighborhoods while passing up significant opportunities as she did with the Marriott Wardman Hotel site. Yet she appears ready to do just that at the Intelsat campus — despite Frumin’s pitch about the huge benefits to DC’s future related to purchasing that property at Connecticut Avenue and Van Ness Street NW. And no one should forget the housing potential in Friendship Heights, where building moderate- and low-income housing would be less disruptive to the existing community. 

It’s unclear whether Frumin’s covenant legislation would end up doing much to boost the city’s ability to meet the mayor’s goal for affordable housing west of Rock Creek Park. Gore said, however, that many residents in Chevy Chase believe that even if those antiquated restrictions are already unenforceable, “developers might not bid because of [them].”

Shoenfeld doesn’t see the correlation, though. “I’m not opposed to getting rid of covenants. I don’t see it as a solution to creating accessible housing,” she told me.

“You’re not making housing any cheaper,” continued Shoenfeld. “Some of this is performative.”

Her assessment may be accurate — except that the folks in Chevy Chase who support Frumin’s bill may be on to something: If the perspective is that these covenants could impede housing construction or commercial development, then the city should make clear that they are all illegal and that they do not supersede existing zoning laws.

The problem is that Frumin’s proposal addresses development and commercial property only in the Rock Creek West planning area, which includes Chevy Chase.

Does he intend to amend the bill in advance of the public hearing that is slated for Dec. 8?

“I would be making more assumptions in other places,” Frumin said. “I don’t know what issues would arise in other places.” 

What?! 

He could start by asking the folks at 14th and I streets NW about their experiences. He might knock on Shoenfeld’s door and ask her what she knows. He has more than enough contacts and resources if he wants to learn about the full extent of the problem. 

Maybe Frumin’s sole purpose is to put the kibosh on the Chevy Chase civic core opposition. In which case, his myopia threatens to shortchange all District residents.

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jonetta rose barras is an author and DC-based freelance journalist, covering national and local issues. She can be reached at thebarrasreport@gmail.com.