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HRAB 01-16-90 Meeting AgendaY COUNTY of FREDERICK Department of Planning and Development 703/665-5651 FAX 703/667-0370 MEMORANDUM TO: Frederick County Historic Resources Advisory Board FROM: Kris C. Tierney, Deputy Director RE: Meeting Notice and Agenda DATE: January 10, 1989 There will be a meeting of the Historic Resources Board Tuesday January 16, 1989, at 7:30 p.m., in the conference room of the Old Court House, 9 Court Square, Winchester, Virginia. Please let me know if you are unable to attend. AGENDA 1. Presentation by Preservation of Frederick County/ Winchester Civil War Sites, Inc. regarding the Caleb rezoning application. 2. Presentation of map prepared by county staff delineating the limits of the Third Battlefield. 3. Discussion of possible area to be recommended by HRAB to the Board of Supervisors for preservation. 4. Other 9 Court Square - P.O. Box 601 - Winchester, Virginia - 22601 HRAB 1/16/90 Agenda Items 1. The Preservation of Frederick County/ Winchester Civil War Sites, Inc. has requested an opportunity to make a presentation to you regarding the Caleb property. 2. The staff has prepared a map which depicts the extent of the Third Battle as well as the parcels which are now either developed or zoned for development. 3. As part of the Advisory Boards recommendation to the Board of Supervisors the staff is recommending that a detailed map of the remaining undisturbed area be prepared showing where specific events connected with the battle occurred. This map would attempt to divide the remaining area of the battlefield into a series of areas of relative significance as they relate the battle. The map would then be used to determine which area(s) would be recommended for preservation. JAN - 3 Dear Chris, E 2k Cyy�, s.Da�sb�s �-!�iA DOM COLLEGE AND CONSERVATORY January 4, 1990 This by way of confirming our recent telephone conversation: I asked if our group - Preservation of Frederick County/Winchester Civil War Sites, Inc. - might at the next meeting of the Historic Resources Advisory Commission have time equal to that extended Mr. Foote at the last meeting. Also, we would like to be included among those who will tour the Third Battle sites next week. You said that you would bring this to Mr. Ewing's attention. Thank you very much. Sincerely, Brandon H. Beck Winchester, Virginia 22601 / Telephone 703-665-4500 ?-<� P�,v - January 15, 1990 Kris Tierney Deputy Director of Planning 9 Court Square P.O. Box 601 Winchester, Virginia 22601 Dear Kris: ALEXANDRIA OFFICE 510 KING STREET, SUITE 200 P. 0. PDX 020 ALEXANDRIA, VIRGINIA 22313 (703) 836-8400 RICHMOND OFFICE 411 EAST FRANKLIN STREET, SUITE 600 P. 0. BOX 3-K RICHMOND, VIRGINIA 23206 (804) 344-3400 MARYLAND OFFICE EQUITABLE BANK CENTER, TOWER II 100 SOUTH CHARLES STREET, STH FLOOR BALTIMORE, MARYLAND 21201 (301) 783-3500 JAN ! 6 1990 ; As I suggested I would do, I offer here my thoughts with respect to the possible creation of an Historic Overlay District by the Frederick County Board of Supervisors, for an area encompassing substantial portions of the Battle of Third Winchester. As we have told the Historic Resources Advisory Board, and as Chairman Stiles has suggested, this may be a useful means of encouraging and directing preservation in that area, without impermissibly or unreasonably requiring too much of any one landowner. 1. Section 15.1-503.2 of the Virginia Code is the basic enabling statute for local historic preservation efforts. Foremost, it authorizes the adoption of local zoning ordinances (typically done as an overlay district on underlying zoning classifications) for the purposes of identifying, and at the Board's choice, to regulating, aspects of the historic lands and structures within the district. 2. Under this enabling authority, each locality in the Commonwealth is authorized to set forth its historic landmarks, either as they have been identified by the appropriate agency of the Commonwealth, or by its own hand. These landmarks may be buildings or structures having important historic, architectural, or cultural interest, or "historic areas." The Code defines historic areas as those containing buildings or places in which historic events LAW OFFICES HaM,Thomas,Fiske, Weiner, Bedf m Hanes A PROFESSIONAL CORPORATION WASHINGTON OFFICE FAIRFAX OFFICE 1575 EYE STREET, N. W. 3110 FAIRVIEW PARK DRIVE, SUITE 1400 SUITE 600 WASHINGTON, D. C. 20005 P.O. BOX 12001 (202) 898-0010 FALLS CHURCH, VIRGINIA 22042 LEESBURG OFFICE (703) 641-4200 116-G EDWARDS FERRY ROAD, N. E. TELECOPIER (703) 641-4340 P. 0. BOX 87 LEESBURG, VIRGINIA 22075 (703) 777-6777 January 15, 1990 Kris Tierney Deputy Director of Planning 9 Court Square P.O. Box 601 Winchester, Virginia 22601 Dear Kris: ALEXANDRIA OFFICE 510 KING STREET, SUITE 200 P. 0. PDX 020 ALEXANDRIA, VIRGINIA 22313 (703) 836-8400 RICHMOND OFFICE 411 EAST FRANKLIN STREET, SUITE 600 P. 0. BOX 3-K RICHMOND, VIRGINIA 23206 (804) 344-3400 MARYLAND OFFICE EQUITABLE BANK CENTER, TOWER II 100 SOUTH CHARLES STREET, STH FLOOR BALTIMORE, MARYLAND 21201 (301) 783-3500 JAN ! 6 1990 ; As I suggested I would do, I offer here my thoughts with respect to the possible creation of an Historic Overlay District by the Frederick County Board of Supervisors, for an area encompassing substantial portions of the Battle of Third Winchester. As we have told the Historic Resources Advisory Board, and as Chairman Stiles has suggested, this may be a useful means of encouraging and directing preservation in that area, without impermissibly or unreasonably requiring too much of any one landowner. 1. Section 15.1-503.2 of the Virginia Code is the basic enabling statute for local historic preservation efforts. Foremost, it authorizes the adoption of local zoning ordinances (typically done as an overlay district on underlying zoning classifications) for the purposes of identifying, and at the Board's choice, to regulating, aspects of the historic lands and structures within the district. 2. Under this enabling authority, each locality in the Commonwealth is authorized to set forth its historic landmarks, either as they have been identified by the appropriate agency of the Commonwealth, or by its own hand. These landmarks may be buildings or structures having important historic, architectural, or cultural interest, or "historic areas." The Code defines historic areas as those containing buildings or places in which historic events LAW OFFICES Kris Tierney HazeI,T1"Tus,Fiske, January 15, 1990 Weiner, Bed4m&Hanes Page 2 A PROFESSIONAL CORPORATION occurred, or having special public value because of notable architectural or other features relating to the cultural or artistic heritage of the Commonwealth, of such significance as to warrant conservation and preservation. § 15.1-430, Va. Code Ann. (definition of "historic area.") The locality can include in these historic districts historic structures and historic areas, as well as parcels merely adjacent to historically consequential property, or parcels which are contiguous to arterial streets and highways the governing body finds to be significant routes of tourist access to the locality, or to designated landmarks, places, or districts. 3. The locality may also create an Architectural Review Board to administer its ordinance. I emphasize the discretionary nature of this provision, because ARB's have a mixed experience in the Commonwealth. They possess significant powers with respect to the erection and demolition of structures in an historic district, but they often have little or no legal guidance to assist them in the performance of their functions. Thus, they can slip the rules of law a bit, and become significant impediments to regular and reasonable procedures. Furthermore, they are not simply advisory to elected governing bodies, and they often do not have the same sense of overall responsibility that elected officials do. It they act consistently with their legal charters, all is well, but if they err, or if they act beyond their legitimate bounds, then the only course of redress is a formal appeal to the governing body, which increases costs to all parties, and thrusts the governing body into troubled waters, often without its wishing to be there. Finally, ARBs perhaps make more sense with respect to the regulation of historic structures, rather than historic areas, and I believe that the very structure of the enabling legislation recognizes this emphasis. Therefore, it would be my recommendation that your HRAB, and the Board of Supervisors, approach the creation of an ARB with caution. In the end, it may seem wisest to you, but you should not enter the question without foreknowledge that these entities have had their problems, as well as their successes. I note, too, that an ARB is quite different from your current Historic Resources Advisory Board, which is created under the provisions of § 15.1-33.2 of the Code relating to advisory agencies. Of course, the Board of Supervisors may either reconstitute the HRAB as an ARB, or it may create two separate entities with two separate functions. It must, however, take affirmative steps to do either since an ARB is possessed of substantive authority, and the HRAB may only make recommendations to other County agencies. Moreover, LAW OFFICES Kris Tierney Rawl, mas,Fiske, January 15, 1990 Weiner, Becht- urn &Hanes Page 3 A PROFESSIONAL CORPORATION even the ARB has only the authority to recommend the creation of overlay districts. It may not actually impose them. Since that is a zoning function, historic overlays must be considered by the Planning Commission, and approved by the Board. 4. An Ordinance enacted under § 15.1-503.2 may contain a number of specific provisions of importance. First, and assuming that an ARB is created, it may provide that no landmark, building or structure within an historic district, once created, may be razed, demolished, or moved until approval has been granted by the ARB. Although ARB approval is ostensibly required prior to razing or demolition, in truth a property owner has an absolute right to raze or demolish in any event, if a. he has applied to the governing body for permission to do so; b. he has offered to sell the structure to the locality or any other person or entity willing to give "reasonable assurances" of preservation and restoration of the landmark, at "at a price reasonably related to its fair market value"; and C. no bona fide contract has been executed for sale of the landmark prior to the applicable time period set forth in other provisions of § 15.1-503.2(3). Third, the ordinance may mandate that no building or structure, including signs, may be erected, reconstructed, altered, or restored unless and until approved by the ARB as being architecturally compatible with the landmarks, buildings or structures in the district. Fourth, the ordinance must provide for certain appeals. If the ordinance grants the ARB authority with respect to the construction, alteration or restoration of structures, or with respect to razing, demolishing, or moving them, then the property owner must have a right of appeal first to the governing body from any decision of the ARB denying permits which have been sought, and then to the Circuit Court of any Kris Tierney January 15, 1990 Page 4 LAW OFFICES Haze An1as,Fiske, Weiner, Beds m &Hanes A PROFESSIONAL CORPORATION decision by the governing body rendered on appeal from the ARB. 1 5. 1 make the following further observations. First, it is important to recognize that the local ordinance does not, by itself, preserve anything. Even the authority to approve erection of structures in an historic district is a power limited by both constitutional requirements with respect to acquisition of interests in private property for public purposes, and fundamental notions of reasonableness in the exercise of governmental powers encompassed in the due process clauses of both the Virginia and United Stated Constitutions. I am of the view that in Virginia, and indeed in America generally, true historic preservation requires actual control by public agencies, or by private entities whose purpose is such preservation. When a landowner is unwilling to make donation of property or interest for historic preservation purposes, the public is restricted to voluntary purchase of those interests, or to the exercise of eminent domain. Second, while the enabling statutes authorize localities to provide for designation of historic districts and landmarks, alas they do so without significant guidance how or on what basis it should be done. The designation of properties as historical must be treated as rezonings, and thus notice must be given prior to imposition of an overlay as provided in § 15.1-431 of the Code. This is very important because there can be very real practical implications for landowners whose properties lie in historic districts. See Historic Green Springs v Bergland 497 F. Supp. 839 (E. D. Va. 1980). The Code is unfortunately silent as to the criteria for decision as to the creation of historic districts by the 1 The statute also grants specific powers to localities to obtain and maintain historic properties. This power is a bit redundant, for that authority is also granted in § 15.1-18.1 of the Code. The combination of these two statutes provides more than adequate enabling authority for historic preservation by the locality itself, and would resolve any question as to whether your Board of Supervisors could repose responsibilities for any properties in the Historic District surrounding Third Winchester in the Parks and Recreation Department. Kris Tierney January 15, 1990 Page 5 LAW OFFICES HazeI,Tlmas, Fiske, Weiner, Beddm &Hanes A PROFESSIONAL CORPORATION locality. The exercise of the discretion reposed in a Board of Supervisors is never entirely unfettered in any area, and it is all the more important that guidance be available in historic preservation matters, where the values sought to be preserved are often more difficult to define than in a "routine" case. There is some useful guidance to be found both in state and federal law. As noted above, the Code defines "historic area" in some detail, but it goes only so far since that definition assumes much of what ought to be proved. We are aware, however, that the HRAB may have been informally employing the regulatory criteria used for designation on the National Register of Historic Places, and our view is that these criteria, or something very like them, and the procedures for protecting the rights of landowners and the public at large, should be formally adopted as part of any historic preservation ordinance, in order to provide reasonable touchstones for decision makers.2 Third, the legislation providing for appeals authorizes the locality to "specify the parties entitled to appeal." §15.1-503.2 (3), Va. Code Ann. It is our view that appeals should be limited to the owners of those properties directly affected by designation or some other decision. This comports with Virginia law generally concerning who may litigate an issue. Granting broad appellate rights to the world at large is a prescription for costly litigation. Finally, Mr. Holliday and I have discussed with Mr. Maddox his preparation of a proposed outline of a Third Winchester Historic District, for your consideration as a means of defining what it is that the County would wish to obtain in the overall area of Third Winchester (and as a model for other locations as well). This would entail a map encompassing the overall area of the Battle, done in consultation with Mr. LeMaster, and identifying areas which might be appropriate for site specific designation within that overall area. It would seem to us that this can go far toward achieving the goals which Chairman Stiles has suggested may be appropriate for the County, and with which we are in fundamental agreement. With an Historic Overlay District in place, the County would be in a much better position to discuss future preservation efforts. This of course will be a decision which the County must make, but'we would like to participate in that process as much as we can. We very greatly appreciate your attention to our concerns, and the courtesies we have been shown. 2 See generally 36 C.F.R. 60.1, et sea. Kris Tierney January 15, 1990 Page 6 JHF12:b:tierney cc: Robert Watkins Dave Holliday Chuck Maddox Sara Howard O'Brien LAW OFFICES HaM,Thomas,Fiske, Weiner, BmWiom &Hanes A PROFESSIONAL CORPORATION Sincerely yours, HAZELHC1MAS, FISKE, WEINER, BEC IW & HANES, P.C. . Foote Kris Tierney January 15, 1990 Page 7 bcc: Kenneth Stiles Janie-- vvl'aday LAW OFFICES Hazel,Tfmas,Fiske, Weiner, Becld m &Hanes A PROFESSIONAL CORPORATION