Lower Pontalba Buildings-New Orleans, Louisiana, 1850-51
Vieux Carre historic district
First buildings to incorporate cast iron galleries
Chapter IV
HISTORIC DISTRICTS AND ORDINANCES
The first historic district in the United States was established in Charleston, South Carolina in 1931. The district was encouraged by Frederick Law Olmsted, the well-known park and landscape planner. To establish the initial district, much work was put into documenting a large number of older structures in Charleston. Although the group of buildings initially surveyed was much larger, the final proposal, which took many years and was finally completed in 1944, included 572 historic buildings.
The second historic district in the U.S. was established
in 1936 in the Vieux Carré (Old
French quarter) section of New Orleans.
In both instances, early preservation efforts helped keep those
areas intact.
Nevertheless, the regulatory powers available to an agency administering a historic district were quite limited in that early period. Controls could not be put on properties on the basis only of aesthetics; to keep the historic appearance of the district was desirable, but not legally enforceable. Any controls had to rely on the concept of "aesthetics plus"-the concept that there must an additional reason, beyond historic character (aesthetics), to justify regulatory control (e.g., building codes).
In 1954 the Supreme CourtSupreme Court changed this in its Berman v. ParkerBerman v. Parker decision, which established the right of local government to "tear down an old building to improve a neighborhood." The original purpose of this ruling, ironically, was to allow for the demolition of older housing for urban renewal. The initial application of this ruling led to the excesses of 1960s urban renewal, with city planners arguing that the demolition of older, run-down neighborhoods improved the appearance of the city. However, this ruling established the concept that aesthetics was enough of a reason by itself. Later, preservationists reinterpreted this ruling to their own cause, stating that historic district ordinances could be established to protect older neighborhoods based solely on the area's visual importance to the historic fabric of the city. This became the more persuasive and pervasive argument, and the aesthetic importance of historic structures was established by the courts.
The concept of historic districthistoric districts
has come into prominence only as recently as the 1970s, when older
buildings not significant enough to be certified individually
as historic structures were listed as contributing to designated
historic districts, and thus became eligible for profitable tax
breaks.
Communities establish historic districts for a variety
of reasons. Some create them simply as a way to protect significant
historic properties. Some establish districts as a way to protect
against a specific threat of development, while others use them
to encourage development in an older area. Some communities use
historic districts as a tool for maintaining property values,
and some see historic districts as contributing to an improved
image of their community at large. The following case studies
describe each of these motives in presenting why different communities
established historic districts.
As described previously, Charleston
designated the first historic district in the United States.
Its purpose was to protect a substantial section of the historic
area from further demolition. It was a very successful effort,
and as a result Charleston has one of the most beautiful historic
districts in any American city.
The Pioneer Square area of Seattle
was the original "Skid Row," given its
name for the inclined street where logs were skidded down to the
waterside for transport to other parts of the U.S. By the 1950s
and 60s the area had become a transient neighborhood, full of
pawn shops and single room occupancy hotels. As a result of concern
over the problems of this depressed area, in 1963 the city supported
a plan to revitalize the area through the construction of new
office buildings and parking structures, and demolishing most
of the older buildings in the Square.
However, some citizens saw beyond the deterioration of the existing buildings and recognized the historic integrity inherent in this district. They began an effort to save the structures by establishing a recognized historic district. They were not only successful, both in preventing demolition and in establishing a historic district, they also expressed concern about preserving an area of the city that would continue to service the needs of the city's transient population. In a most unusual coalition, the city responded by developing provisions in the city codes to encourage the single room occupancy usage to be retained, and also in establishing social service agency offices in the area.
Meanwhile, spurred on by the example set by a few entrepreneurs
who purchased and began improving the deteriorating buildings,
the incentive for development through preservation increased in
the area, and the older buildings became desireable properties.
As a result, the building valuations in the Pioneer Square area
increased 600% in less than a decade, and the district has become
a very successful example of mixed used development.
In the 1960s the Manchester neighborhood
in the city of Pittsburgh exhibited
many of the signs of a dying residential area. Most of the housing
had deteriorated, many homes were abandoned, and the area was
slated for demolition under the guise of urban renewal. Beneath
the deterioration and neglect, however, was a neighborhood with
a good stock of well-built structures, many with distinctive design
features, in an area of the city that could be a prime residential
area due to its proximity to the downtown.
Arthur Ziegler, an English teacher, and James Van Trump, a local architectural historian, recognized Manchester's potential and decided to take action to save it. In 1964 they established the Pittsburgh History and Landmarks Foundation to encourage others to participate in their efforts. Through the Foundation an innovative program was established for the Manchester neighborhood to encourage its preservation and rehabilitation. Through discussions with the city the Foundation convinced the city's Urban Renewal agency to become a partner in the effort, rather than an opponent.
Thus able to tap the city's resources, a program was established to sell abandoned houses to qualified buyers for $100 to $9,000. The program established the following conditions for their purchase.
1. The city would restore the facade if the owner agreed to maintain the restored facade for twenty years. The owner could also claim an easement easement valued at 10% of the appraised value of the restored house.2. The city offered free plans and specifications for the rehabilitation work, as well as assistance with bidding and construction supervision.
3. The city made available 3% loans to owners. If the owner's income was low enough, the city offered an outright grant for the rehabilitation work.
The Foundation had convinced the city of the need for strong financial
support, but its unusual commitment to the neighborhood through
this program was surprising. Also surprising was the immediate
success of the program. Fifty houses were sold in three days.
In the next few years, the city invested just under $500,000
in the program, out of which more than $3 million was generated
in private rehabilitation funds. But perhaps most impressive
of all was the amazing change in the appearance and vitality of
the neighborhood. While keeping its share of rehabilitated housing
available for low income families, the neighborhood also attracted
substantial numbers of more affluent residents who appreciated
the historic character of the buildings and the in-town location
which made it possible for them to walk to work.
Under Arthur Ziegler's continued leadership, in the
mid-1970s the Pittsburgh History and Landmarks Foundation
next tackled a much bigger project. The
1901 Pittsburgh and Lake Erie Railroad had an unused station building
with an intact, lavishly ornamented Edwardian interior surrounded
by forty acres of underutilized commercial buildings. The complex
was across the river from the downtown, and although it was a
short walk, most investors saw the area as having little potential.
But Ziegler envisioned the adaptive reuse of the structures into
an up-scale shopping area, with shops and restaurants which traded
on the historic theme and the marvelous interior spaces. He noted
that "Pittsburgh's nearest fashionable shopping district
was in Manhattan, and Pittsburgh's last tourist came in 1946."
Although scoffed at by leery potential investors, the development, known as Station Square, moved ahead with a $5 million grant from the Allegheny Foundation and $2 million from Chuck MuerMuer, Chuck, a restauranteur who established a 500-seat restaurant in the station's grand concourse. The project's success was immediate. Although the "experts" had projected a maximum gross of $300,000 per year, the project instead earned $3 million in the first year, and became a very successful draw for both tourists and Pittsburgh residents.
How has this preservation/development project benefited the community?
Station Square has turned into a genuinely reinvigorating
project for Pittsburgh and an important catalyst for similar rejuvenation
schemes. As sole developer, PHLF will convert the profits into
an endowment for its revolving fund to underwrite local housing
restoration for low- and moderate-income families, educational
programs and other preservation projects. Station Square, furthermore,
although developed by a not-for-profit- organization, is paying
full taxes.
Does the establishment of a historic district inflate property values and taxes, based on the added prestige of such designation? Or do property values drop, under the treat of increased regulations and a loss of property rights? A number of research studies have looked at the impact of a historic district on property values. Most of these studies have found that the primary impact has been neither a rapid increase in property values nor a decline. Rather, such districts have tended to stabilize property values.
Dennis Gale, a professor
of urban and regional planning, found "little support for
the argument that official recognition of the historic and architectural
merits of residential neighborhoods leads to accelerating Washington, D.C., comparing tax assessments before and after designation.
He found the growth rates in tax assessments were less after
designation. He surmised this may have occurred because "...fear
of limits on property use, property changes and demolition permissions
may have shifted investment activity to other neighborhoods..."
A leader of the neighborhood association feels there are benefits,
however, with historic designation, such as the right to oppose
demolitions and protect an area against unwarranted and unnecessary
clearance activities.
The city of Marshall capitalized on its historic character to promote its community. Although a village with a population of less than 10,000, Marshall attracts one hundred bus tours every year and more than 10,000 visitors for its annual weekend house tour. The visitors are a real boost to the town's economy, and its downtown is one of the healthiest in the state.
Marshall's orientation to preservation began as early as 1920, when the mayor at that time began buying old homes in disrepair and selling them to people who promised to fix them up. As one owner restored an old, dilapidated structure, it would encourage another to do the same, and by the 1950s there was a general community attitude of keeping the old, at a time when most of the country was interested only in the new and modern. By the 1970s, when preservation became a national involvement, Marshall was well situated to take advantage of the situation, and was especially attractive as a community which cared about its heritage and traditional small town values. "This is like Camelot," says Michael Kinter, a resident. "I walk to work. The kids walk to school. It's the American small-town dream." Kinter opened a gift shop in the downtown, and now estimates that fully 70 percent of his shop's business comes from out of town visitors.
Another family, the Kinney's, moved from Detroit,
95 miles away, to Marshall because the preservation effort was
already underway, and they would not have to be trailblazers.
"What we wanted was what the community wanted," says
Kathryn Kinney. People in town are satisfied to show off the
town. But we don't want to make any money at it. Everyone is
concerned about Marshall not becoming a tourist trap."
In the 19th century Lowell,
Massachusetts was one of a number of cities that formed the focus
of New England's textile industry. When the textile industry
moved to the lower-costing, nonunion South in the 1920s, these
cities became largely abandoned. Large, well-built mill buildings
remained, but most were vacant, and they lined the rivers as ghosts
of former times. Lowell was one of the largest of the textile
towns, and as such was hard hit by the changed economy.
Recently, preservation has been used as a tool for renewal, and Lowell now represents an important success story. In 1978 the city's town center was designated a 137 acre preservation district under a National Historical Parks programNational Historical Parks program. Since then, many of the textile buildings have been restored as apartments for the elderly. A museum and tourist center were added in an old mill building, and Lowell has traded on the history of the textile industry as its primary historical and tourist attraction. Its historic district is not so much an attempt to preserve a grouping of buildings as it is an attempt to preserve the elements of an earlier local industry of tremendous national significance.
As a spin-off from this base, Lowell's downtown has been revitalized,
with many new shops and continuing renovation. The unemployment
rate, which had been 13% in 1975, is now down to a low 4%. As
a result of these changes, a new industrial base has been attracted
to the city, boosting the local economy.
Historic district commissions, and their power of regulation, can only be established at the local level after being given this right by state government through enabling legislation. The state of Michigan is used as an example of a typical state enabling act that allows for the establishment of local historic districts and historic district commissions. The state legislation is Public Act 96 of 1992, the "Local Historic Districts Act."
The purposes of the Act are defined as follows:
The Act provides for the following:
Before establishing a historic district, the legislative body of the local unit shall appoint a historic district study committee. The committee shall contain a majority of persons who have a clearly demonstrated interest in or knowledge of historic preservation, and shall contain representation from one or more duly organized local historic preservation organizations. The committee shall do all of the following:
(a) Conduct a photographic inventory of resources within each proposed historic district following procedures established or approved by the Bureau.(b) Conduct basic research of each proposed historic district and the historic resources located within that district.
(c) Determine the total number of historic and nonhistoric resources within a proposed historic district and the percentage of historic resources of that total.
(d) Prepare a preliminary historic district study committee report.
The legislative body of a local unit may establish by ordinance a commission to be called the historic district commission... Each member of the commission shall reside within the local unit... The members shall be appointed by the... mayor... The commission ...shall include as a member, if available, a graduate of an accredited school of architecture.
When considering designation of individual properties versus a district, a number of factors should be considered. A historic district should be established when a grouping of historic structures has more importance and significance considered together than they have individually. A district should have at least one unifying element, or theme, which ties together all or most of the structures within its boundaries and which justifies its creation. Establishing a historic district may be justified when there is a concentrated assemblage of historic structures representing an architectural period or style. For instance, many downtown districts have been formed around groupings of 19th-century Italianate commercial buildings. The ground levels of these buildings often have undergone many changes, but the structures retain historic integrity on their upper levels, as well as in the consistent height, scale and exterior materials used. By creating such a downtown district, property owners have instituted controls and incentives that encourage retaining or restoring the district's historic integrity.
A district can also be based on an important era in the community's history. For instance, if mining played an important role in a town's development, a district may try to incorporate an assemblage of the remaining buildings that represent this industry.
Rather than being constituted of an assemblage of structures that
all have proximity to each other, a district may be made up of
noncontiguous sites or structures if they have a common theme.
Perhaps structures representing early settlement, for example,
are scattered across a city. In this case, trying to collect
the significant buildings within one physical district would mean
substantial contorting of the boundary lines. A thematic district,
made up of noncontiguous elements, would be the most appropriate
approach.
When attempting to establish a historic district the first question to be considered is whether taking that step is the best vehicle for protection. If the purpose of the district is generally to bring a varied group of buildings under one umbrella ordinance, perhaps the distinctions between each building and its needs would be great enough that the designation of each building individually would be preferable.
The formation of a district implies that there is a historic character
that permeates all parts of the area within its boundaries, including
its buildings, its streetscape, possibly its natural features
and open space, and that these elements somehow relate to each
other historically. If such is the case then a district is appropriate.
But if the area is made up of disparate elements, from different
historical periods, and with little common thread, then the historically
significant elements should be considered for individual designation.
By definition, boundaries inherently differentiate one area from another, and to some degree separate one area from another. Thus it is with historic districts. As soon as boundaries have been established for a historic district the city begins a pattern of differentiating areas on both sides of those boundaries. Historic districts can predetermine what should be allowed to change; the creation of boundaries from the perspective of historical protection alone can be too simplistic.
Establishing the boundaries of a district creates, by definition, one kind of area within, and another without. In addition, the edges often acquire a distinctive pattern of change on their own. While the main core of a district can grow and change within its own defined environment, this "fringe area" always feels the restrictions of the boundaries themselves. Thus the edge, or fringe, areas can essentially become districts of their own, albeit with invisible and only apparent boundaries, but with their own patterns of change mandated largely by the existence of the mandated boundaries.
The boundaries of a historic district are often defined on the basis of natural features and edges. Such edges may form logical boundaries that echo the images residents have of their community. A district may also be based on the early settlement patterns in a community. Although it may not be apparent presently where the logical edges of a historic area may lie, by referring back to earlier maps and descriptions important differentiations may become more apparent and then are logical to reinforce.
Boundaries may also be established by the local historic commission to protect a historic area from threatening growth and development in an adjacent area that may be spilling over into the historic district. Such boundaries should recognize the economic forces that create the need for such development, and try to accommodate growth and change in some areas while protecting the historic fabric in others. In such cases, consultation should be made with the local planning department and other groups concerned with development issues.
When a new historic district is under consideration, it is important not to consider the question of boundaries before other, more pertinent questions have been addressed. Any group considering the establishment of a new district should first of all consider the reasons and justification for the district. Ideally, this should be accomplished without too much concern given at this time to the many external restraints, such as who will be impacted, who will be the opponents, what will be the political consequences, etc. Once the purpose and goals are agreed upon, then the boundaries should be determined based on the area that will make the strongest statement of those goals.
Many study committees will be overly inclusive in their definition of boundaries, in their concern not to leave out any property and attempting to anticipate every conceivable contingency. This approach generally weakens the significant historic properties within, for the ordinance must be written to apply to the property with the lowest common denominator. It is better to take a "lean and mean" approach, and to shrink the boundaries to the smallest area that retains the strongest elements of the district's goals.
When districts are considered for approval by the various State Historic Preservation Offices, consideration is given to the ratio of significant historic properties to that of secondary historic properties and non-historic properties. The higher the proportion of historic structures, the more likely is the possibility the proposed district will be supported at the state level.
The SHPO's office will also consider the integrity of the boundaries themselves. If, to achieve the highest ratio of historic properties possible, a district's boundaries have been distorted by gerrymandering, this will be looked on negatively. A district (other than a thematic district made up of noncontiguous properties) should have a logic to its physical layout that is obvious to the average citizen.
The establishment of a historic district is recognized as a very
useful tool of the city, but the consideration of each district
and its boundaries must include a broader perspective of the city
and the many other forces and interactions which make up its vitality.
To be effective and legally well-founded, a historic district ordinance should satisfy three conditions-it should be well-written, it should be needed, and it should be appropriate.
It should beWell-written:
As detailed in the following section under "Legal Criteria," an ordinance must be able to withstand any legal challenge, for owners who do not wish to abide by its restrictions may look for weaknesses in its construction. A number of considerations are important.
1. A good ordinance will essentially adhere to the provisions of its state enabling legislation, but will also include sections providing for local concerns. For instance, the state may mandate that a historic district commission include an architect as a member. The local government may also want to include an attorney as a required commission member, which it is free to do. However, each such additional provision will tend to limit the flexibility of the city and the commission, and should be carefully considered before its inclusion.2. An ordinance also should be predictable in its application by the review agency (usually the local historic district commission). The criteria and standards used should be clear and direct, so property owners can be fairly certain of how to gain approval when they apply for proposed changes. If such approvals, or disapprovals, by the commission are unpredictable in their outcome, then the ordinance is either weak in its formulation or in its application, either of which is unsatisfactory.
3. To minimize the problem of misinterpretation or misapplication by local commissions, it is desirable for the ordinance to make reference to the guidelines established in The Secretary of the Interior's Standards for Rehabilitation. This document establishes national criteria for determining the appropriate types of changes to make to historic buildings. (See the Chapter VI on design issues for more on these guidelines.)
4. Before drafting an ordinance, it is also worthwhile to review some typical problems that other ordinances have encountered. Probably the most common problem is that an ordinance is too vague in its provisions, and leaves too much to the discretion of the historic district commission or other review agency. In such a case, decisions can be based as much on the personal dynamics of commission members or political considerations as on objective, rational standards.
5. Historic district commission members often have difficulty agreeing on aesthetic values. What appears to be visually compatible to one reviewer may be seen as visually disruptive to another, and it is difficult to base such opinions on more than personal experience. The best way to overcome this problem is for commissioners to work together over a period of time, reviewing previous cases, and gradually developing a consensus viewpoint on appropriate design.
6. Problems also often develop in ordinances when they attempt to define property maintenance provisions. It is one thing to review and approve changes to historic properties, for that process is undertaken by the owner when he or she obtains a building permit. However, if an owner neglects the maintenance of a property and it falls into serious disrepair, then the commission itself must take the initiative and begin action against the owner. This concern was addressed directly in the 1975 case of Maher v. City of New Orleans, where it was stated, "Once it has been determined that the purpose of the Vieux Carré [historic district] legislation is a proper one, upkeep of buildings appears reasonably necessary to the accomplishment of the goals of the ordinance." Since commissions usually don't have any power of enforcement, it should be established at the outset what city agency would provide enforcement when necessary (e.g., the building department).
7. A further problem can result if the commission is accused of being selective in its enforcement proceedings. An owner may claim that the commission has singled him out unfairly, and similar problems at other properties are not being addressed. This argument may be difficult for the commission or the city to counter.
A well-written ordinance will describe how all the above concerns
will be addressed by the commission. It will be clear, consistent,
and legally defensible.
Legal Criteria
A historic district ordinance is a legal document, and as such must follow requirements of the state and local governments in its tenets. Such an ordinance should be evaluated according to three basic provisions.
First, its purpose must be to promote the public welfare. The purpose of government is to protect and promote the good of its citizens in general. Therefore, an evaluation of the provisions of an ordinance must show that its primary purpose is to benefit the community in general, rather than a group of individual property owners.
Second, the means used in the ordinance must be rational. The ordinance provisions should be similar in character to other city ordinances in how they are applied, and not so convoluted that they lead to easy misinterpretation or misuse. For example, an ordinance requiring that all properties in the historic district have a green front door is irrational, for such a decree would not be based on historical precedent but rather has been created at the "whim" of the writers of the ordinance.
Third, the provisions of an ordinance must be fair. They
must apply equally to everyone within a specified group. The
local historic commission cannot use the ordinance to take action
against one property owner who is not in compliance without taking
similar action against other owners who are similarly noncompliant.
It must also not be unduly onerous or burdensome on those individuals.
Indeed, if the ordinance is too restrictive on certain properties
those owners could argue that their property had been subject
to a legal "taking," and the city could be liable for
compensation to those owners.
It should be Needed:
An ordinance must fill a need to be effective. In some situations historic buildings are protected and maintained through other agencies and there is no need for a local ordinance, which would be either duplicative or ineffective in its application. If a local role is desired in such an area perhaps recognition by the municipality is enough. Historic significance can be recognized locally by way of a special resolution, markers and signage.
In other situations an ordinance may not be necessary simply because
there is no threat to the properties. Historically significant
houses may be found in stable residential areas where there is
no foreseeable pressure for change. Rather than draft an ordinance
which attempts to anticipate future needs, it might be preferable
to hold off on the legislative front. If the area is monitored
on a continuing basis and the situation changes, with increasing
pressures for incompatible changes, then the need for such an
ordinance can be more realistically assessed. This is not to
say that local ordinances should be put off until the last possible
moment, when a threat is real and activity must be reactive.
Preservationists should always let the community know what areas
and structures they consider historically significant and how
they best could be protected. But unnecessary ordinances should
be avoided.
It should be Appropriate:
An effective ordinance appropriately deals with the needs of the properties included in its jurisdiction. A "boiler plate" ordinance (one that simply copies another) should be avoided, for different communities have different needs and desires.
For example, the Historic District Commission of Ann Arbor, Michigan oversees eleven historic districts through its Ann Arbor Register of Historic Places. Ordinances for each of these districts were drafted at separate times. Not surprisingly, the provisions vary considerably among themselves, not only in detail but in basic concept. Therefore, it is a goal of the Commission to gradually revise the ordinances to bring them more in conformance with each other, and to make the administration of the districts more uniform.
In spite of these efforts, the Commission has found that each
residential district differs in its understanding of how their
provisions should apply. In the Old Fourth Ward district, an
area with numerous student apartments, many of the large homes
have been subdivided by absentee landlords, with little concern
for the historic integrity of the original structures. The Study
Committee for that district insisted on strong and specific language
to deal with the threat of wholesale alterations, with the return
of single family occupancy in these houses as an eventual goal.
By contrast, the Old West Side Historic District
is a neighborhood of modest turn-of-the-century homes and good
neighborhood stability. The neighborhood association there was
concerned about placing too many restrictions on homeowners, since
most are already sensitive to their neighborhood's historic context.
The ordinance there is more benign, and deals basically with
three elements-keeping the original rooflines and scale of houses,
retaining the interesting wood trim features, and insisting that
the common open front porches not be closed in.
To summarize, if a community wishes to obtain certification for a historic district the following information must be submitted:
1. A written explanation of why the area should be considered a historic district, including a description of its historic significance.2. Descriptions of the individual buildings or building groupings within the area, including descriptions of the architectural styles represented.
3. Calculation of the percentage of structures that are considered as contributing to the historic character of the proposed district versus the number of noncontributing buildings, and a map locating the buildings in each category.
4. A map describing the proposed boundaries for the district, along with justification for the location of those boundaries.
5. Photographs of the significant historic structures and typical streetscapes.
"Buildings are speechless, but preservationists are not."
The proposed establishment of a historic district can sometimes be met with opposition from a variety of groups with quite different concerns. It is important to understand and address these concerns when putting forward the concept.
Surprisingly, opposition often comes from other agencies of local government. It may partially be based on the general fear of losing power to another city agency, which in this case is the local historic district commission. It also may be due to the fact that a historic district will mean additional work for some city officials; perhaps the building department will need to coordinate its approvals for building permits with the historic commission, or the city planning department will need to wait for comments from the historic commission before making recommendations on projects before it.
Other concerns may be financial in nature. The expenditures to run the administration of a historic district commission (staff, office costs, project fees and contracts) may come out of another agency's budget, either directly or indirectly. Also, the provisions of a historic district ordinance may limit capital improvements projects. For example, while a city's transportation department may see the need to widen a street to increase traffic flow, the historic district commission may not agree that it is in the city's best interests to widen a street in a historic district. All these concerns may arise when a new historic district is proposed.
Institutions also may not be in favor of historic districts, especially if they have a stake in the property. Universities are notoriously uncooperative with local historic district commissions. Generally speaking, the larger the institution, the more it can ignore local pressure for designation of their structures. State institutions (colleges, hospitals, etc.) are typically not subject to local ordinances, and need respond only to state regulations. Yet in most cases these institutions represent important elements of a community's history and heritage, and this lack of involvement in local historic designation efforts can cause serious discrepancies in a community's historic goals.
Finally, historic districts may be opposed by private citizens, who assert their rights with the cry, "Don't tell me what I can and can't do with my own property." This attitude runs deep in the American psyche, and represents a valid concern. However, legal precedents have already established the right of a city and its agencies to tell people what they can and can't do with their property, whether through zoning or building codes. When historic districts are proposed, these concerns come to the forefront because these regulations have only recently been seen as intrinsic to a city's role, and may not generally be recognized as appropriate by many citizens.
Otherwise, opposition is based largely on the amount of control
being proposed. The best way to divert this criticism is to develop
an ordinance that combines regulations with incentives-a carrot-and-stick
approach.
The following concerns often are heard when historic districts are proposed; they represent the most common points of opposition. These concerns are especially heard when the designation of commercial buildings is proposed, since it is feared that designation will deny owners the right to profit from their investment. The replies represent the best response to these concerns.
CONCERN: "Designation will add another level of bureaucracy to the city's approval process."
REPLY: When changes or additions are proposed to designated buildings the review process of the historic commission should be expeditious, predictable, and integrated into the normal review of other city agencies. Approval or disapproval by the historic district commission should be completed expeditiously (e.g., it should take no more than 60 days from the time the petition is submitted). The determination should be given in writing, and if the proposal is not approved the reasons for disapproval should be given. As owners become accustomed to this procedure it should proceed quickly, not take longer thatn other approvals, and as a result cause no undue hardship.
CONCERN: "Designation will cause an unnecessary hardship to property owners."
REPLY: The act of designation should not cause economic hardship. As a court found in a Virginia case, the identification of an area as a historic district did not deprive the owners of any of their property rights.
Designation should be based solely of historical or architectural significance, and not based on economic impact. However, historic preservation has been shown in many communities to help create economic revitalization. In residential areas, property values do not fall after such designation, but stabilize, since designation implies more neighborhood stability and renewal. In commercial areas, designation has lead to many new programs and revitalization proposals that have created a fresh image and new vitality for businesses.
If an economic hardship arises through inequitable property taxes or other regulations, it can be remedied by incentive programs described elsewhere (see the section on Preservation Economics in Chapter VIII). Owners who feel they have been unfairly penalized may typically appeal to the mayor, city council, or an appeals board.
CONCERN: "Designation means I can't change or add on to my building."
REPLY: This is probably the most misunderstood and surprising concern, for most ordinances will permit alterations and additions. Indeed, it would be foolish not to permit changes, for this would doom historic properties to the inevitable role of museum pieces if they were not allowed to be updated.
Changes should be permitted if two conditions are met. First, the changes should not destroy the elements that give a property its historic integrity. For example, if the front facade is important as part of a district's streetscape, then an addition should be allowed at the rear. If the entire exterior is historically significant, then change can be made to the interior, and an addition should be permitted if it complements the original structure. The guidelines for making such changes are described in the Secretary of the Interior's Standards and Guidelines for Historic Rehabilitation (see Chapter VI on Design Issues).
Second, alterations or additions should be subject to the review and approval of a historic district commission or design review board. This insures that the standards are interpreted appropriately and consistently.
CONCERN: "Designation should be voluntary rather than mandatory."
REPLY: At first, this would seem to be a valid point. Shouldn't ordinances allow for voluntary designation, for this would make the ordinance acceptable to property owners. Such an ordinance, however, would be inherently weak from a preservation viewpoint, for it gives owners the right to determine whether or not their buildings are historically significant. Owners may not be the best people to make this judgment. Some owners may want to give high status to their property when its significance may be relatively insignificant, while other owners may fear the restrictions that accompany a designation, and may insist a very important historic property not receive any form of designation.
It is important to recognize that a historic building is historic whether or not its owner recognizes it as such. Such determination should be made by a qualified panel of experts. A consistent designation is important because historic buildings have no protection against demolition or destructive alterations in any other way but through local designation and through the provisions of a local ordinance.
CONCERN: "It is unfair to give my building designation, for there is no firm criteria for selection. The list of proposed buildings can be seen as arbitrary, and based on subjective judgments only."
REPLY: The selection of properties to be designated and subject to the regulations of a local ordinance should be made by an impartial panel of individuals who are knowledgeable about local history and architectural history and styles. Serving on such a selection committee is no easy task, for the merits of individual structures can be argued from many perspectives, and sometimes only through much debate and reconsideration. A consensus will eventually form, however, and the reasons for inclusion or exclusion of structures should be presented as part of a final list.
Although selection is to some degree a subjective process, as it must be, legal precedents have established that such a process has legal standing as long as (1) the selection decisions were made by qualified people and (2) they had established selection criteria beforehand. The selection criteria need not rely on cold, statistical logic, but can be "soft," for there is no consistent way to apply complete objectivity when it comes to questions of historical importance. Courts have generally upheld the legality of such selections, and have been unwilling to substitute their judgment for that of the selection committee.
As discussed previously, criteria for selection is ultimately based on two factors, historical significance and architectural significance. Other criteria that is more specific may be added. They may include such factors as age, number of buildings of a certain type extant in the community, listing on local, state or federal registers, association with important local events, examples of fine craftsmanship, etc.
CONCERN: "This ordinance has no sound legal basis and will be subject to lawsuits."
REPLY: Any ordinance designating and regulating historic buildings should be well-founded legally. There are many legal precedents that justify the right of local governments to establish preservation ordinances. Such ordinances should also be compatible with state legislation, for state enabling legislation is also necessary to establish local commissions and ordinances. An ordinance should also be subjected to the scrutiny of legal counsel, whether it be the City Attorney or private counsel, for it is a document with many legal, as well as economic, ramifications, and may be subjected to challenge by a disgruntled owner.
With such a basis in law there is little reason to be concerned about the right to designate historic structures through local ordinance. Over the past two decades, the right of local jurisdictions to designate historic districts has become as acceptable a practice as the creation of zoning ordinances, which were earlier subjected to similar scrutiny and challenge.
Nevertheless, owners cannot be denied use of their property without
due process of law. Therefore, if a structure is to be designated
two steps should be included in the process-the owner should first
be given adequate notice of the contemplated action (30 to 60
day notice by registered mail is typical) and second, be notified
and given a chance to speak at a public hearing.
A local historic commission can be involved in many activities relating to local history and preservation. The powers given to commissions are powers granted by local government and state law, although commissions often become involved in activities other than those specifically given through ordinance. The following list, taken from A Handbook on Historic Preservation Law describes the powers that may be granted:
to survey and identify historically and architecturally significant structures and areas;to designate and protect landmarks and their surroundings and landmark districts;
to review applications for alteration, construction, or demolition of landmark buildings and all structures within a historic district;
to require affirmative maintenance of historic structures;
to make recommendations regarding zoning amendments and comments on the local comprehensive plan;
to undertake educational programs and activities;
to establish standards and procedures for designation and development review;
to accept funds from federal, state, and private sources;
to buy, sell, or accept donations of property;
to exercise the power of eminent domain;
to accept easements and other less-than-fee interests in property.
To be effective when reviewing proposals for additions or alterations to designated buildings, a commission must have the authority to deny-that is, to say "no." If it can only advise and make recommendation, then its powers and ability to protect are severely limited, and depend more on the personal and moral suasion of its members than on sound review criteria. Chicago's commission is an example of one with solely advisory power; as a result the city has lost many important landmarks and its preservation program has often been in disarray. Washington, D.C. and New Orleans have stronger ordinances giving commissions the right to deny, but with an appeal procedure to the local elected council. New York City has the strongest ordinance provisions, which gives their commission the final right of denial with no appeal except, of course, court appeal. This is preferable in the respect that it removes the review procedure from political considerations as much as possible.
In some cases, the courts invalidated designations because the criteria used were either too vague or absent entirely. To determine whether designation is legally defensible, the following questions should be asked:
-Did the review body follow designation procedures as set forth by state and local laws?-Did the owner receive legal notice of the proposed designation?
-Was the owner given an opportunity to present a case and challenge designation?
-Did the local review body base its decision on the evidence before it?"
Many court cases have upheld the right of local governments to
designate and regulate historic properties. Initially, historic
structures could be subject to local regulations only if such
regulations involved more than aesthetics. This "aesthetics
plus" principle meant there must be a reason to regulate
beyond just historic significance-for instance, public welfare.
But in the important Berman vs. Parker case,
decided by the Supreme Court in 1954, the principle was established
that aesthetics alone was sufficiently justified government regulation.
Although this case had to do with the removal of "blighted"
older buildings, and did not impinge directly on historic preservation,
preservationists soon saw that this precedent could be used to
justify protective historic ordinances, and this case has provided
the backbone to such regulations ever since.
The other important legal precedent for historic preservation was the landmark Supreme Court decision, Penn Central Transportation Co. v. City of New York., which established the legal basis for historic ordinance regulations. This case was significant because it dealt with the rights of owners to develop a property versus the rights of cities to review and regulate the development of a historic property. As such, this 1978 case became essentially the first Supreme Court decision dealing directly with historic preservation, and has become the most important legal precedent in the field of preservation.
Penn Central Transportation Company, the owner of Grand Central
Station in New York City,
had applied for permission to construct a 55 story addition over
the Grand Central Station building, which had previously been
listed as a historic landmark structure. When the city denied
approval, based on the structure's historic designation, Penn
Central claimed a "taking" (see next section)
and asked the City of New York for compensation for not being
able to develop its property. The case became a cause célèbre,
with many notables, including Jackie Kennedy Onassis
and architect Philip Johnson, marching in
the streets to "save Grand Central."
The Court ruled that "there was no 'taking' since the Preservation
Law had not transferred control of the property to the City, but
only restricted appellants' exploitation of it; and that there
was no denial of due process because (1) the same use of the Terminal
was permitted as before; (2) the appellants had not shown that
they could not earn a reasonable return on their investment in
the Terminal itself; (3) even if the Terminal proper could never
operate at a reasonable profit, some of the income from Penn Central's
extensive real estate holdings in the area must realistically
be imputed to the Terminal; and (4) the development rights above
the Terminal, which were made transferable to numerous sites in
the vicinity provided significant compensation for loss of rights
above the Terminal itself." This landmark decision upheld
the legitimacy of historic ordinances, and formed the legal basis
for the right to establish controls to which the owners of historic
properties would be subject.
With the Penn Central decision the Supreme Court upheld the legitimacy of historic preservation ordinances, but many questions were left unanswered. Primary among these was just how far a public agency could go in limiting the rights of private owners to develop their property. Penn Central's proposal was denied because, in the Court's opinion, the company was already able to get a "reasonable return" from its property. What the Court didn't indicate was how much regulation would be considered too much.
If the owner was kept from making a "reasonable" return (in New York City a reasonable return has generally been assumed at six percent per year, although the calculation of this figure is open to argument), a "taking" could be claimed, in which case the public agency would need to compensate the owner for the loss of use of his property. A number of later court cases established the general limits of regulation before a taking could be claimed.
To avoid controversy about whether there has been a taking of all or part of a designated property, a historic commission should carefully describe the parts of the property included in the designation: Is it just the principle structure? Does it include ancillary buildings? Is the entire site included, or will the owner be permitted to divide off sections for sale and/or development outside of designation requirements?
Sometimes a variance for new construction will be given if the owner can make the case of economic hardship. However, economic hardship must be more drastic than the owner's having difficulty paying taxes or operating costs. The inability of an owner to increase the property's economic return is also not sufficient justification. The owner must illustrate that the property's existing use is economically unfeasible and that sale, rental or rehabilitation of the property is not possible.
When historic buildings are owned by nonprofit organizations the situation is considered differently. Religious organizations have long argued they should not be subject to the same requirements as other property owners. Obviously they are not dealing with the question of reasonable return, and churches will sometimes argue they serve a community purpose and want to retain the right to change their property and buildings to best service that need.
In spite of the separation of church and state defined in the
First Amendment, courts have generally upheld the right to designate
religious buildings and have them subject to such civic regulations.
Just as they are subject to land use and zoning regulations,
and fire and safety codes, they are subject to community interests
with regard to historic designation. If a proposed alteration
or demolition is the only action that allows the property to continue
in its religious role, then special treatment generally would
be supported.
The constitutional separation of church and state brings up another important legal question-whether churches and religious buildings should be exempt from historic ordinances. This issue was dealt with most directly and publicly in the case of St. Bartholomew's versus the New York City Landmarks Preservation Commission.
St. Bartholomew is a prominent church located in the center of New York City's prime commercial district. Built in 1919, the church was designed by Bertram Goodhue, one of the most important architects of the period, and is an excellent example of its kind.
St. Bartholomew's Church in New York City is many things to many
people. To the passerby, it is a rare breathing space, an interval
of gardens and terraces on Park Avenue between Fiftieth and Fifty-first
Streets. To the aesthete, it is a beautiful edifice of soft brick
and stone. To the religious, it is an oasis of faith in a spiritual
wasteland, a monument to God in the land of mammon. And to the
homeless, it is a haven where can be found a meal, clean clothes,
a night's shelter.
In 1967, the New York City Landmarks Preservation Commission, recognizing the building's architectural significance as well as the potential threat posed by skyrocketing property values and high-rise development on adjacent sites, designated the church a historic landmark. The church contested this action, but the Appeals Court said such designation did not violate the right of the church and its congregation to use the building for religious purposes, and the historic designation was approved.
In the early 1980s the church developed plans to replace its adjacent community house with a speculative high-rise office tower. The congregation felt the substantial income from such an investment would both support maintenance costs for the aging structure and finance the church's community outreach and missionary programs. It was estimated that the developed property could earn as much as $100 million.
Following a series of public hearings the Preservation Commission turned down the plans on the grounds that the scale of the 59-story reflective glass tower was incompatible with the church. According to one commissioner, the project looked like "nothing so much as a noble work of man about to be crushed beneath a gargantuan ice cube tray."
The church fought back. "People think we're vandals," said the church's senior warden. "But preservation of the church is very important to us. If we don't have more money we won't be able to preserve the very building that the preservationists are concerned about: the church sanctuary." To forbid construction would be to take the property out of the church's control, and put "in the hands of a secular agency."
The parishioners became badly split on the issue. Some church members felt the Commission had gone back on its promise to allow changes after designation. As one church member said, "we feel we were lied to at the time of the designation. We relied on a statement made then that would have allowed us to develop our property." A commissioner responded that the 1967 agreement with the church permitted alterations to the property, but did not permit the development of a skyscraper. "A one- or two-story addition is one thing, but a forty-seven-story office tower is different. We didn't say nothing could be done, we said this proposal was inappropriate."
Other parishioners were opposed to the development, and formed the Committee to Oppose the Sale of St Bartholomew's Church. They charged that "this case is not about religion, but rather it is about a church's efforts, in partnership with a commercial real estate developer, to destroy its landmark property and to develop its site to the highest commercial value."
Over more than a decade the battle persisted. Three times New York's Landmarks Preservation Commission denied the church's plans, even when the tower was cut from fifty-nine stories to forty-nine. Finally the case ended up in the U.S. Appeals Court, where two issues would be decided- (1) Did the church's historic designation violate the constitutional principle of separation of church and state? and (2) Did the denial represent a taking, and should the church be compensated by the city for not being able to build the office tower?
During the court proceedings the church's attorneys first argued the case on a series of general principles. They said the designation was against the First Amendment, and interfered with the church's ability to develop money for its service programs, and thus interfered with the free exercise of religious beliefs and activities. The Court responded that as long as a rational basis for the law exists (historic designation and review) and that the church wasn't "impermissably burden[ed]" in carrying out its religious activities, there was no basis for overruling the designation as illegal or unconstitutional.
Next, the church argued that previous cases had established that historic designation should not take away an owner's ability to make a "reasonable return" on its property. If designation took away the possibility of a reasonable return, then a taking could be claimed. The Court, however, said there was a difference between commercial and charitable entities. The church was a charitable organization, and the reasonable return provision didn't apply, since designation did not interfere with the practice of religious activities.
The final general principle the church argued was that it had been denied due process in the initial decision on designation. The Court responded that the requirements of due process had been met, since (1) there had been prior notice of the designation and (2) there had been a public hearing. The owner's approval was not necessary; it was only required that the owners be notified and given a chance to comment. Based on all three arguments of general principle, the church's case was rejected by the Court.
However, in an appeal the church continued to argue specific points of its case. It argued it would be unable to fulfill its mission of community service and it would be unable to maintain the main sanctuary without additional income. A design firm hired by the church to look at the existing buildings concluded the buildings needed considerable work and that more space was needed for church operations.
But the Court looked at the testimony of these "experts" and disputed their credentials. The designers were deemed not competent to evaluate structural characteristics, and furthermore, demonstrated ignorance of the nature of the existing structure. The calculations of space needs were considered biased, since they were based on the testimony of individuals opposed to the historic designation. The Court also noted that the church had a stock portfolio worth $12.5 million, and concluded that this was more than sufficient to carry out the proposed renovations. The church could get further income by selling its air rights, and this had not yet been tried.
The St. Bartholomew's case, the most significant historic preservation
case since Penn Central, clearly showed that
religious properties were not exempt from designation and protection
as historic structures.
As we have seen, the owners of historic properties often are concerned about the restrictions placed on them through designation. The designation of churches is often more controversial than any other type of property. Though courts have upheld the right of municipalities to give such designation, churches have been some of the most vocal and active opponents of historic designation.
Unity Temple, an important early project (1906)
of Frank Lloyd Wright, is another case entirely. The congregation
made Unity Temple the first church in the country to be voluntarily
protected. An agreement was established that guarantees strict
protection for both its exterior facade and the public areas of
its interior.
The designation is truly significant for a number of reasons. First, it was voluntarily solicited by the owners because of their recognition of the historic importance of the structure, as one of the most important projects of America's greatest architect, and their desire to see the structure protected in perpetuity. Designation seldom includes interior spaces, since owners feel it is too much of an infringement, but at Unity Temple even the interiors were included.
Protection was secured through use of an easement,
a method seldom invoked because of inherent difficulties. As
part of the easement agreement, the Landmarks Preservation Council
of Illinois annually
inspects the structure to insure that changes have not been made
without prior approval. Also, the building must always be used
as a church or for a similar function, which will allow the interior
spaces to remain as is. In return, the congregation benefits
because it is better able to solicit donations for the church's
restoration work. The existence of an easement agreement reassures
donors that their money will go directly to the building fund
rather than the church's general budget.
When creating a new historic district, either by proposing district boundaries or writing the ordinance, a question local preservationists must resolve philosophically is how inclusive to be. Should a new district's boundaries reach out to include most of the community's historic buildings, even if such boundaries include many non-historic buildings, or should they be more limited in scope? Should the ordinance provisions make many things subject to commission review, to cover as many contingencies as possible? If so, how can it be written to accommodate many building types with varying levels of historic significance?
A community that has taken an inclusive approach is Ypsilanti, Michigan, population 22,000. The person largely responsible for writing the ordinance, Jane (Bird) Schmiedeke, carefully reviewed 16 ordinances before drafting the ordinance for her city. Surprisingly, one of the best prototypes found was the ordinance for New York City; this indicated to her that the elements of a good ordinance can be used for cities of widely varying populations.
The intent of the Ypsilanti ordinance was to allow the city's Historic District Commission as much latitude for review as possible. Therefore, the district boundaries cover a large portion of the city. The district included many nonsignificant structures because they were seen as part of the context surrounding the historic structures. The ordinance also allowed for review by the Commission of items not typically included for other communities, such as exterior paint colors and site landscaping. The following chart, prepared in 1984, lists items included in the Ypsilanti ordinance, and then compares these with ordinances for other Michigan communities.
In the fifteen years since it was first drafted, Ypsilanti's review process, like those in many other communities, has occasionally been criticized by property owners. One property owner, who had begun work without a building permit, was surprised when city officials said historic district commission review was also necessary. As a newspaper account described the situation,
In 1990, George Davidson, owner of Campus Buick GMC Nissan at 34 E. Michigan Ave., ordered a $10,000 canvas awning to add a cozy touch to the establishment. As workers began installing, city employees came along and stopped the work, saying it had to clear with the Historic District Commission. When presented with the drawing of the 100-foot-long awning, the commission said a section of it was too wide, so Davidson had to have it re-made at an extra $1,000.
"I was new here and wasn't aware of the historic commission," says Davidson. "I have operated businesses in four other communities, but I have never had anything like this. I think it definitely discourages people from investing here. There are so many vacant stores downtown, which indicates something's wrong, and I believe the historic commission's restrictions have something to do with it."
This kind of surprise and chagrin is common among property owners who are not familiar with the review process, and see it as another intrusion on their rights of ownership. Although the Ypsilanti commission has the possibility of control over virtually any exterior change within the district, its process has proven to be flexible, and its authority to deny has been exerted relatively rarely and only when necessary.
And the long-term results have been worth it. The city's continuing preservation activities have been effective in changing a general attitude of community neglect, seen twenty years ago, into one of concern and caring. The city's new-found sense of heritage has restored pride in the community; the city's successful and well-attended Heritage Festival has become a annual celebration of that pride.
Typically, a historic designation is given to a building largely on the basis of age. But age is a relative variable and by definition, a constantly changing one. Consider, for example, the situation of Oak Park, Illinois. In the early 1900s Oak Park was one of the most desirable suburbs of Chicago. Its tree-lined streets were fronted by stately Victorian homes, many in the ebullient and showy Queen Anne style. The homes were tall, with steep roofs, turrets and many gables. Into that setting a young architect named Frank Lloyd Wright brought a new style for residential design, eventually to be known as the Prairie (or Wrightian) style, largely inspired by the broad midwestern plains. Wright's houses were more horizontal than vertical, with low sloped roofs and wide, overhanging eaves. There could not have been a sharper contrast to the Victorian houses in Oak Park than this new style of the prairie.
The question arises: If Oak Park at the time had a historic ordinance and had set up a historic district commission to review new construction, would Frank Lloyd Wright's designs have been approved? Or would the commissioners have denied the requests because the designs were incompatible with the residential character of the neighborhood? Today we recognize the brilliance of these early houses by Wright, which are among our country's architectural treasures. Yet in 1910 or 1915 they were new, incompatible, and probably would have not been built if a strict review procedure had been required. What a tragedy that would have been.
In that same vein, we must ask ourselves today whether our historic requirements prevent truly innovative and important architecture from happening. In our attempt to protect against the worst designs, are we also not allowing the best to come out? Sometimes it is necessary to recognize truly significant architecture before it has had a chance to "age"; excellence must be nurtured and encouraged wherever it is found.