HRAB 01-21-92 Meeting AgendaCOUNTY of FREDERICK
Department of Planning and Development
703/665-5651
FAX 703/678-0682
M E MORA N D U M
TO: Historic Resources Board Members
FROM: Kris C. Tierney, Deputy Planning Direct
DATE: January 8, 1992
RE: Meeting Notice and Agenda
There will be a meeting of the Historic Resources Board at 7:30
P.M., on January 21, 1992, in the conference room of the
Administration Building, ist floor, 9 Court Square, Winchester.
Please let me know if you are unable to attend.
Some informational items are attached for your use.
AGENDA
1. Discussion of possible courses of action for developing a
program for locally significant historical sites. _
2. Other.
THE COURTHOUSE COMMONS
9 N. Loudoun Street - P.O. Box 601 - Winchester, Virginia - 22601
1/21/92 HRAB AGENDA page 2
1. The staff would like to point out a number of issues that
should be addressed prior to presenting a proposal for
recognizing locally significant historical sites to the Board
of Supervisors.
a. The implications and intended effects of creating the list
need to be considered and pointed out at the time that a
proposal is presented. One example of things to be discussed
is what impact the designation of a site might have on a
proposal to rezone the parcel involved. The HRAB may want to
recommend additional language to be incorporated into the text
of the Zoning Ordinance which specifies additional procedures
to be followed or information to be provided when a locally
significant site is to be considered for a rezoning.
b. The manner in which properties will be recognized once on
the list, as well as a policy for selecting additional
properties, needs to be developed. There is a considerable
amount of work to be done on developing a plaque program if
that is what is intended. Will there be an application form,
if so, who will review it? Will there be an appeals process?
What about owners who do not wish their property to be listed
at all?
C. A notification procedure needs to be developed so that
owners will have the option of choosing not to be included on
the list before it becomes official.
There are, no doubt, additional issues that need to be addressed.
The staff is recommending that the HRAB take the next few months to
work on developing a thorough and well thought out approach for
instituting a locally significant historic properties program.
KCT/slk
Virginia �'reservatian Update
January 1, 1992
Vol. 5, No. 1
PRESERVATIONISTS
ledge of the General Assem-
AND DON'T FORGET OUR
LOOK TO 1992 GENERAL
bly and Virginia's political
ANNUAL PRESERVATION
ASSEMBLY SESSION
process.
RECEPTION!
The 1992 session of the Vir-
Under Charlotte's direc-
Our second major event dur-
ginia General Assembly con-
tion, the staff, board, and
ing the legislative session
venes in early January, and
membership of. the . Alliance
will be our annual Preserva-
preservationists — like many
have been meeting ' this fall
tion Reception, held this
of those concerned about the
with key members of the Gen-
year on Thursday, January .
future of the Commonwealth —
eral Assembly. These mem-
30, 1992 at the Woman's Club
will be .following develop-
bers sit on committees that
on Franklin Street in Rich-
ments closely ;in Richmond.
oversee the preservation and .
mond. ; This is an excellent
This'- editio_n of . the ' UPdate
budgetary programs of the .:
opportunity to get out, meet
will focus on -issues of , in--
Commonwealth. Alliance mem- "-=
: your legislators, and talk . .
terest ; to ; ° Virginia's `' pieser
, ber organizations have also ' ; :
'about preservation . in - the
vaaon commumty.
been '_active ' in =` contacting
Commonwealth. Look for your
3=
their ;local t' delegates and :
invitation soon.
senators " over -the =fall ;and
- -
ALLIANCE HIRES-`€ early winter.
.WHY ALL THE FUSS
LOBBYIST; MAKES
ABOUT PRESERVATION
SPECIAL'PREPARATION
Immediately .,after the ses-
-AND POLITICS?
FOR SESSION
'sion - begins, preservation-
-
-fists will: have..the opportun
This year — more than any -`
Because of the importance of Oity to "hone"-itheir. ° pohti _
since - the .1989 .passage of
this =year's long 'session m 3 cal=skills'`and --,learn first-;.-.--,; 'legislation estab
,Richmond, fhe Board of Trus
t hand about `the issues facing ':
lishing - ' the Department of
tees of Preservation AI
Virguua:°` ' On :' January ""I3,
Historic Resourcespromi
pthe
`fiance .voted to "` hire Char
1992, . 'the-- _'Alliance will
ses to have - several__major
lone tiiarye Hawes as our
host our second Politics of ; ;
preservation issues before
Public Polwy . Coordinator.
" ' Preservation ''` workshop , in
the General Assembly , A
With many issues sure to
Richmond at VHDA head- .
summary of the major ones
change ;quickly and have ' a '
quarters. .; Trustee "Nancy
includes:
maJor impact on �Tirguua's
, . Ambler Chas .lined up an ex
..
historic resources the
t 'cellentrgroup . of ;speakers,
•Budget battles —they've
Board 'felt "that a "presence
'' °: and all ``Alliance :me_ tuber :or . -
already begun with a sugges h `
at `the General Assembly,
ganizations =and individual
tion by the Senate Finance
ti"with� :improved -monitoring
members` are encouraged to
Committee staff sthat :VDHdt
eliminate the designation of much preservation work over duled for early in the ses-
historic resources without the past decade. sion to voice your support
the consent of the owner and for preservation.
are asking the General As- We'll also have to monitor a
sembly to consider legisla- host of other issues this 4. Send in your reservation
tion to compensate properly year, such as . possible bud- for- the annual Preservation
owners for designation. get raids on -the state's Reception ,on the - 30th_ . in
preservation revolving Richmond. -,Consider the
• The Growth Commission is fund. costs to the Alliance of
considering several pieces having a` -public policy coor-
of legislation, including a WHAT SHOULD YOU dinator in Richmond and then
bond issue proposal that -DO AS AN ALLIANCE support ;,the reception at one
could include funds for his MEMBER?t of our.+special "patron" -cat-'
toric resources — but only �, egones.
if we show them the need. We're'_ glad you asked!,
Here's :, -a .list of steps to
p 5. �, Keep._ up-to-date on the
• Last year's session saw follow to help support Vir- issues before , the „General
some un
portant mcsves forward _g_mia's histone resources , Assembly Eby ;-,reading -.,these___
on -.the -`.issue of transferable �_f ; �;: � �a��r� - -- -.,updates'--,,, ,acting quickly _
development rights (TDRs). a j , I r Contact, your. 'senator and ; when requested. , Those who
This could'`come backfin this_ ;;delegate pTiorto the ;session want --Jo --gu Yirginia's `pres-
fyear'sµ session,'as swellas,� tovoice„,yoursupport for - ervanon'piogram are , well
discussion -on ,the Tissue of _preservation Tell _them you _ w' financed and active
who rhes standing qui court will ,be at :our preservation r*
;rece on on the 30th ,and
z msec" involving environmen _ -_ p z Due -to a generous roundation
Vital and preservation issues you hope to see them there1 '�,.Fgift,the Alliance .has just
received anew computer with
The Housing Study :Com -H2.-. -Sign up now 'for the 7anu modem -and 'fax 'capabilities.
mission will be �p.Yutting for" ary"I3th Politu;s of Preserve This year wewill ;also have
9 ward :ale isIation aAto support tion xWorkshop,in +Richmond, modem access :to the General
h
�, tax 'credits ;-for .the rehabiI= was we need re resentatives `r £,Assembl -Is computerso ;we
P Y .
itatioaof flow income his from all arts of the state. will shave u to -date infor
�, P Via. _ x P-
tone housing, tin �a fasluon'1�-r*4"� matron However, the action
x similar to the=federal tax°� �3:Attend one of the. {state to 'i -save, kVirginia s ,past is
credits that have spurred so 4 budgetY:hearingsbeing --sche up to use
�a¢�,`9�-, p�.,u.
'dth.£_?
Member_organizations of the Alliance are encouraged to make copses of,
- V:rgima PreseroatYon' tlpdaie forfldistnbution to staff and board members rt F
77-10F —77
77
77777
-
-
PRESERVATION .m#' z }:k. Non -Profit Org.
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Charlottesville, VlrgiItla 22902
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HiSfony
LIWAILo%Aeln
L Z) L 1 L'I 'm
Historic designations in prince Williarn
: OuntYs BristOe Station Battlefield and
3randy Station Battlefield in Culpeper County
xM .1 Prompted complaints from landowners
1'ho say .y / tIWiT Property values are going
6 90110erns have even led to worries
Imong some Richmond area landowners
.vho have property n'§ wxr some ,of the
lational Park S6 "cxeasyj,
values
� ic ii -.110 IV 9 6; /,Yy/
Some landowners
at battlefields fear
they'll
casualties
BY Christine Neuberger
Service's decision this year to deem'
Ilqms-Dispatch state statr
thousands of acres at Brandy Station
, Claire I Rollins said her family lost
I
as. eligible for the: national �istqric
a cont r4ct to:s !I its prince Wil . William,
register has stalled economic mic devel-,
c6unty'llro-pe'rty after the land wa','opment,
according4o Citizens for:
'drawn into the state -designated h
%district
Land Rights, a " group formed- lin,
toric at thejs7.�:.
Bristoe, station
April.
,.Battlefield.
4
.In Prince William; the ttkc i
'desJginMon'.bf-,J,
regio Smith T said the deal to:
cent 62..I�',4
thp,Bristoe., Station %fi!ekd
Gamily'Jan4 fell.through,
HNA-
e a
, 0, rty,was .list d
-
s state 4�M 'a'rtoftheBfandy,
I -and .— , I - �
StAtioni a a if
b
sPectivp. UyerskdOcOress�6qpto
erty. values, bounty and
'1�
0 �iblfpr` the 0nationa historT
SIS J!
Ist4constituents'
,
Assbly session, i em 9 exploting>,thei
Such; Males h' en.
ave,,,�tuqeq, '0
among landowners elsewhere, " - '- !J
gin
PMI to "seek .
cld.dWgf'arm t iPa.pi I I mp ct
County; "AaV'historic. es; anon S �gIonsWIich m7.
threaten iliek pro' values
.could
. . ,ocal state' or, feel!
.
l`.`ani
,(
ti6'rIght to sf11 or use the an.
,
governments.
study, now being coAdii&
our 'retirement, tiiis is
t, -V
by the. state Department of, 101g'
Resources *.,I
Reso
-0111 Pass on to our children
'd,
'i�d'giakchild
s and slated for, conihQ04
rep," said E.F. Mose7
ti nu . 11 ..r . im,
anon
0, during the coming, jog""
Ieypiegidentoif the Henrico County
,
Assbly session, i em 9 exploting>,thei
1.Faith Bureau, "Many of us are real
Impact on land valuesd
an w ct er,
concerned that just by a certain des-
owners should be compensated',�.
ignation; this can all change ,V
:V.
Raised anew is the ytiestiog {if
Civil War battlefields are among
the, sites in Virginia that have tie-
how to balance property owners!
rights with the need to preserve sites
g
cone modern-jay,,battlegrotin&'as
'and
deemed historically significant. Na-
-
preservationists opponents 6f
growth ,, ave. Vlashed with business
!iOnaLattejation was focused on the
issue., after the unsuccessful
tnferests and landowners,
Stiff graphlC bY lather L N. Trowiiqr Jr. In Culpeper, the National Park,
attempt,
to develop the area around Manas,4
.
Continued on page 3, col. 1
Continued from first page
includes the county' s industrial park,
'airport,
sas ;'National Battlefield Park by Ha-
"It's
It,S not in Our in -
sewage plant anyairport, encom-
passes about 1,700 acres of Industrl-
Cos.
Manv irate landowners don't dis-
terest in the long run
ally zoned land.
pute that official recognition canBusiness
to ignore a problem.
prospects have lost inter-
est because the historic status raises
rthe value and integrity of
istoric buildings and established
If:we. simply Seek
questions over whether a site can be
communities. But they argue that a
historic designation imposed
...
to take a real rob-
P
used as zoned, said James C. With -
erspoon, the chamber's executive di -
over
rector.
owner objections on large, vacant or
lem and sweep it un -
P
Nonetheless, state historic re-
s
s arscly developed tracts can cast a
cloud over property,
der a nig ... We
sources officials have stood by their
Still, many Brand Station land-
know know -that neither We -
assertions that a formal historic des -
Ignation has no direct effect on an
owners have not claimed that their
propertyvalues have fallen, said
$a :
nor you are Well
= owner's ability to use or sell land.
Property values are dictated by the
JameDial, an Arlington resident
served. "
market forces, they say.
and member of the Brandy Station
"As
Local officials aren't obligated to
Foundation. a matter of fact,
— H. Bryan Mitchell
take historic Istatus into account
they're proud of the recognition of
the
the historic vale of their land,".
when reviewing development pro -
But Mrs. Rollins of Prince Wil-
Lia m said the state's inclusion of her
iafly's
of the county supervisors and prop-
includes 14,700
posals, the state agency says, and a
designation expresses no govern -
fa land in the Bristow Battle-
erty owners, about
ment Intention to acquire property.
field led to the " devastatin " loss of
acres'
Dairyman Wayne Lenn said :the
Still, the testimony of property
owners during,.a Oct. 31 hearing in
a multimillion -dollar contract for -
their property.
Culpeper farm that has been handed
` Prince William convinced Colgan
"Needless to say we lost all inter-..
down through - generations of his ,
family has lost Its value since It was
that state designation of large tracts
reduces value and warrants compen-
ested parties, the reason being. the .-
officiully marked as. historic.:
sation.
risk factor that the uncertainty of
historic designations bring," she gold
"I've lived, on, thatfarm all of my
"They can't sell or developP prop -
during one (if four recent hearings
life. I expect to dle on that farm. But
the development rights have ;been
arty and that's not fair. If (designa-
' tlon� results in "reduction of value,
)s
held as part of the study. "We need-
taken away from me even thoufh it's
thattaking and there should be
ed and wanted to sell our property."
been paid for for 800 years, said
compensation," Colgan said. "I'm a
Bristo�:, the scene of an October
1.enn, 70,
great history buff' myself, but if we're
1863 battle in which 1,900 Union
"I can't do what I want to do on
going to do this, we need to be more
and Confederate soldiers --were
my farm, When you take away all the
conservative about how much --we
killed or wounded, was placed on
development rights .:. farmers are
.: designate."
the state's Landmarks Register In
left with only a= shell of what had
Should the- state agency's study
April over the opposition of. local
been theirs, with only shellOfwhat
conclude. that,: no compensation Is
landowners And the county super.,
they've worked all their lives for:"
- justified. Colgan said he would ex -
visors.
Moreover, -county government
plore ways to correct. the situation
Brandy, Station, approved as'
and business leaders maintain that
through legislation.: -though rpme-
state historic landmark in late 1989
the hfstoric.status has stymied eco-
; dies may Involve spending tax mon-
and declared eligible -.for listing on
noinic�growth and county attempts :.
ey that is already stretched thin.
the National Register of HIstoric
to gain federal approval of such
Sue Hansohn, head of the Cttl-
Plates`in Februlry, Vas the site of
pr*cts -,as a1ence needed at the
zensiFor land Rights. said that .in
the largest cavalry battle in the Civil
airport to keep deer off the runway.;
`foreign
light of the state's budget crisis, "if
War.
and an application for -a
the state can't afford to compensate. _
The state historic district encom-
trade zone.
it shouldn't designate. The. label
PThePasses 11,548 acres in Culpeper and
Fauquier
historic designation,~ which
should be removed."
counties, according to
state figures. But local critics say the
designation, which drew the protests
deemed eligible, ciai historic designation 'of exti.
"They can't sell or Sens.- Charles :& Robb and`John land are:"probably down the road," ,
W. Warner have asked thc-Sinaie�s&'MacLeod- sald,_but some prop
develop property and Energy `and -Natural-'Resources ';e y -owners m!$takenty;bel3eve the
' Committee to took info tht:;etj hi park will try, to:.ezpand by hostile
that's not air. I : >�
f f sty determination, which cases the lzi�re'of private property t
(designation] results requirement' of a lengthy feaerraTre 3'he park Seivvtce owns "about .765
in reduction_ of 'val- view of Wk -L federalt} supported Wires in xhe _°Richmond area; scst-_
projects:. r; a 1� r� -,
r, _ , {teMetin SQlocgtians ,'deilgiated as
ue, that's taiCllt and boric; W", MacLeod said. Since ;
g. The dfsgruntlemenf trr Glpepe�
there should be and Prince .William ~has proatpted h1i0,-she °added,',the Park Service;: ,
;, worrier:among property,owng n,,� h worked:;ta. foster cooperattpn
com ensation. ton landowners `and state, . a!
p eastern Henrico County around t e LCderaL overnments to "cAtf
Charles J. Colgan Richmond National Battlefield g
ParkrVe slgnifleant sites,_ ,
"This is something we set::wiII We"recognize we'do need to get
The state- historic resources de- happen here," -said Moseley"of-the' -•together or.we'11 have. pandemoni-
partmcnt's ability to prepare a bal. ` Henrico Farm Bureau,-"But�we�asrri dm,`' :Ms. MacLeod said:, PI .don't
inced study on the issue has also farmers In Henrico have _conia{dered history reigns supreme; but it's - f
been questioned by some critics. ourselves very. good stewards ofour irrespon9tb a and almost uncivllize`d`
"They can't afford to say compen- land. for_generatlone. .s -ted deny your heritage and to say tha_
cation Is warranted because it would his"tory should have no say in how4
put an end to their program." said Park Superintendent Cyynthia develop our land.
Michael Armm, a spokesman for de- MacLeod said_ some hworried '!arid '°
veloper Lee C. Sammis; who owns owners have.-mislntet�ttted'";'pie`it �ltdepends�dnhowyoufeel'ab�tr
limina draft--riocument tiifed drvtdtial �{ hts versus other: eo-
about 3,C� acres included in the ry g �
Brandy Station district. "Conserving. Richmond s=AJUttle-� p s righty: Does =mcone have the
The agency's deputy director. H. . fields,".which was intended - a"fir9t ishtlo short-term gain at thea
Bryan Mitchell. sought to counter step toward ideiiifleation and`pprroo genee of our national,"_her{tagat
such criticism when he spoke to an- ter►ion ,gf valuable Civil Wnr,sltes ;There zeds to be n. balance= ane
gry landowners in Prince William: &slgnatiori doesn't mean that pre ►
Park Service efforts to gain c�fi! arty owners' rights are taken away '
"It's not in our interest in the long s
run to ignore a problem.... if we
:imply seek to take a real problem
Ard sweep it under a rug ... we
know that neither we nor you are
well served." '
Some landowners say disputes
could be avoided'rovith the adoption
of more specific regulatibns.govern-
ing the designation process, includ-
ing -provisions requiring owner con-
sent.` - - -
Historic landmarks can be placed
on the state register over owner ob-
jections. A majority of landowners .
can block a nomination's entry.on
the national register. but a site such
as Brandy Station. can still be
Pennsylvania
High Court
Designation
In July, the Pennsylvania Supreme Court shocked planners,
lawyers, and preservationists across the nation by reversing a
lower court's decision and declaring that the Philadelphia
Historical Commission had "taken" the Boyd Theater
without just compensation. The commission had designated
the structure historic without the consent of the owner.
Public outcry and pressure from preservationists has forced
the court to agree to reconsider its controversial ruling in
United .Artists Theater Circuit, Inc. v. City of Philadelphia
in October.
The court's sweeping decision. on a 4-3 vote, ignored 60
years of legal precedent when it declared Philadelphia's
historic preservation laws unconstitutional, questioned the
validity of aesthetic regulations, and implied that any local
,id -use control beyond basic zoning may be a violation of
.e Pennsylvania Constitution.
The full ramifications of the ruling are not yet clear. The
lead opinion by the court likens landmark designation of
individual properties to spot zoning, but it fails to address
the status of historic districts. The Pennsylvania State
Historical and Museum Commission has publicly asked the
court to clarify this point because it fears local governments
may abandon the preservation of historic buildings rather
than face a deluge of lawsuits from disgruntled property
owners. Philadelphia alone has over 13,000 designated
landmarks.
How It Happened
The case of the former Boyd Theater is unusual in that the
historical commission designated the building against the
wishes of its owner, the Sameric Corporation, and attempted
to preserve both the interior and the exterior of the structure.
The theater owners have been fighting the landmark
designation since it was proposed in early 1986. The historic
commission's vote on designation was postponed for over a
year by several lawsuits filed by the Sameric Corporation.
The public hearing on designation was finally held in
April 1987. A member of the commission and its staff gave
testimony and a slide presentation on behalf of preservation.
They argued that the 1928 movie house is an important
example of art deco architecture, that it is the work of an
important local architecture firm, and that as one of the few
surviving local movie palaces, it represents a significant era
in American cultural history. In addition, the commission
contended that the interior of the lobby and auditorium are an
integral part of the theater's historical character. The Sameric
Corporation presented testimony opposing landmark
In Julv, the Pennsylvania Supreme Court tivas expected to rule on the city of Philadelphia's authority to regulate the interior of the
Boyd Theater. The city had argued that the theater's lobby and auditorium are an integral part of the building's history. The court,
however, went several steps further and struck down the landmark designation of the entire structure.
designation, which included the opinion of architect Emanuel
Reider, who argued that the Boyd Theater is a poor example
of the art deco style and a mediocre building.
Nonetheless, the commission voted in favor of designation
and the Sameric Corporation responded with another round
of lawsuits. The theater owners charged that the commission
did not have the authority to designate its building without its
consent and that the commission was not empowered to
regulate the interior of a building. Once again the lower court
dismissed the case. The owner then appealed to the common-
wealth court, which reaffirmed the decision of the lower
court.
By December 1990, when the case was argued before the
state supreme court, the theater had been sold to the United
Artists Theater Circuit, Inc. and the taking issue had been
waived by all parties concerned. The briefs presented to the
court were solely concerned with the city's authority to
regulate the interior of the structure. For that reason, it came
as a great surprise when the majority ruled that the
designation constituted a regulatory taking.
The Surprise Ruling
In the leading opinion of the court, Justice Rolf Larsen
stated: "By designating the theater building as historic, over
the objections of the owner, the City of Philadelphia through
its historical commission has `taken' the appellee's property
for public use without just compensation in violation of [the
Pennsylvania Constitution]."
Larsen described the Philadelphia Historical Commission
as a very powerful arm of the city: "When, in April 1987, the
Boyd Theater was designated as historic over the objections
of the owner, the commission obtained almost absolute
control over the property, including the physical details and
uses to which it could be put. Further, the historic
preservation imposed upon the owner an affirmative duty to
preserve the building, at the exclusive expense of the owner,
in the condition, configuration, style and appearance
mandated by the commission."
Larsen did not cite any evidence demonstrating that the
owner had suffered an economic burden, but he was careful
to protect the decision against an appeal to the U.S. Supreme
Court. "We ... do not consider the Fifth Amendment of the
Federal Constitution in our decision," he stated. "Rather, we
decide this case entirely upon Article 1, Section 10 of the
Pennsylvania Constitution."
A concurring opinion, written by Justice Ralph J. Cappy,
also said that the commission exceeded its authority when it
attempted to regulate the interior of the building, but
disagreed with the takings claim in the majority opinion.
Justice Cappy points out that the court should avoid ruling on
the basis of constitutional law whenever possible. "I do not.
believe we need to reach t} a issue of whether the designation
of the subject building, both the interior and exterior,
constitutes an unconstitutional `taking' for which
compensation is required," he wrote. "Rather, I would find
that the commission is without authority, under the
ordinance, to designate the interior of a privately owned
building historical.... It is a long-standing principle of
jurisprudence that where an issue can be resolved on a basis
other than constitutional law, the court should not address the
constitutional question.... Furthermore, courts may not
declare a statute unconstitutional unless it clearly, palpably,
and plainly violates the constitution."
2
Reactions from the Experts
Of the opinion drafted by Justice-Tlirsen, Jerold Kayden of
the Lincoln Institute of Land Policy at Harvard University,
says, "It's a strange and peculiar decision which essentially
halts the historic preservation of individual properties in
Pennsylvania." Kayden contends that the argument is poorly
crafted. "Usually they are very thorough in discussing a
divergent decision," he says. "Normally, they cite statutes
and case law, and they examine all the policy issues. This is
uncharacteristic. This is a sloppy, quick, and dirty approach."
Eric Kelly, chair and professor at Iowa State University's
Community and Regional Planning Department, argues that
while the decision was not well written, it was certainly
within the bounds of the law. "I don't like the decision, but
as Norman Williams points out, historic preservation is at the
outer limits of police power," says Kelly. "It's about the
most burdensome regulation we can have. Normally, when
someone owns a property that has been poorly maintained,
he or she has the option to fix the building or demolish it.
Under historic preservation, the owner doesn't have that
choice; the property must be maintained. Sometimes repair
doesn't make economic sense, but preservation demands that
the owner spend money to maintain something that he or she
doesn't want."
A designated building cannot be demolished unless the
owners prove that they cannot sell or operate it without
financial hardship. "The decision was made without any
evidence of damage to the property owner," says Ian Spatz,
the director of the Center for Preservation Policy Studies at
the National Trust for Historic Preservation. "The court just
ignored a vast body of case law. It's so unusual that it isn't
an evolution of the law; it's just `way -out -on -a -limb' kind of
thinking. It might be easy to dismiss unless you live in
Pennsylvania. They have more historical commissions than
any other state. There's a great deal of history to protect."
Richard Tyler, Philadelphia's historic preservation officer,
says the Boyd Theater case "goes right to the core of the
preservation process in Philadelphia. All historic
designations are on hold." In fact, communities all over the
state have put all preservation issues on the back burner.
Scranton has abandoned plans to pass its own preservation
ordinance, and Pittsburgh has tabled its new ordinance after
more than a year's work with a preservation consultant. Tyler
says the language of the ruling is so unclear that
communities have even backed off plans for historic districts.
"At one point, [the court says] that landmark preservation is
equal to spot zoning," he says. "One would think that historic
districts are valid, but the court implies a complete rejection
of aesthetics, which could void zoning for historic districts." -
Jerold Kayden agrees. "Aesthetics, standing alone, is not
sufficient to uphold the use of police power," he says.
"Billboard, scenic -view, and public -art controls are all in
jeopardy in Pennsylvania. That is dramatically different from
other states."
The U.S. Supreme Court Differs
In fact, the decision even differs from the current
interpretation of the federal constitution. The U.S. Supreme
Court has repeatedly rejected arguments similar to the one "
made by Justice Larsen based on the Fifth Amendment of the -
Constitution. The Pennsylvania Supreme Court has, in
accordance with the law, set a higher standard for the
protection of individual liberties, which means that this
W
decision may not be challenged in the federal courts. "This
3e serves as a reminder that while there may be no problem
ut the federal level, there is still a state constitution to be
reckoned with," says Kayden.
The U.S. Supreme Court has specifically rejected the idea
that historic preservation is a taking and has held that an
individual's property rights do not extend to making
maximum possible profits when those rights are at odds with
the overall welfare of the community. The Court's stance is
based on a series of earlier decisions upholding regulation of
the visual environment.
The decision came as a complete surprise to Maria L.
Petrillo, the deputy city attorney for Philadelphia. "There
was no briefing with respect to the taking issue because it
had been waived," she says. "The case should have focused
on the authority to regulate the interior of the structure. To
say we are disappointed is an understatement. We're very
concerned about the prospective applications of this
unprecedented decision. We have to look at the possibility
that this case could trigger a significant number of lawsuits."
The state supreme court rarely agrees to reexamine cases,
but when the city filed a Petition for Reconsideration, the
court decided to take a second look during its October
session. The petition was supported by a number of groups,
including the American Planning Association, American
Institute of Architects, the National League of Cities, the
National Trust for Historic Preservation, and the United
States Conference of Mayors. Petrillo is guarded about the
*!consideration. "This is definitely good news," she says,
it we're nowhere near out of the woods."
If the decision stands, it will virtually halt preservation
regulation in Pennsylvania, and may even effect landmark
designation in other states. Kelly, however, states, "This
decision will not have much impact outside Pennsylvania
except in states which already favor property rights, because
the decision is too out of synch with the other courts. The
courts have gone out of their way to uphold preservation."
Kayden is less optimistic. "The opinion has no formal
precedental power, but it could be influential nonetheless,"
he says. "Constitutional Johnny Appleseed groups will wave
the Pennsylvania decision in front of state courts all across
the nation. There will be some takers. The same battle can
now be waged in the other 49 states." M. B.
Sacramento County Endorses
Transit -Oriented Development
The new general plan of Sacramento County, California, is
designed to channel future development alongside the
county's transit line and fully integrate mass transit into all
aspects of the land -use plan. & technique being encouraged
is called transit -oriented development (TOD)-20 to 160
acres of mixed-use development in close proximity to a
commuter transit stop. The idea is based on the "pedestrian
^-)eket" concept advocated by San Francisco architect Peter
Ithorpe, who assisted the county in drawing up the general
plan. Using a transit stop as the centerpiece of the pocket, the
rest of the buildings would be laid out within one-quarter to
one-half of a mile away—the average distance a person is
willing to walk to the store or to a train station. Streets
narrower than those in typical subdivisions and limitations
on parking are also expected to Iimit the use of the car.
Sacramento County is one of California's fastest growing
areas, and county planners want to make sure that growth
happens where it is most appropriate. By using the TOD as a
component of the general plan, the county hopes to
accomoiish four goals: increase transit use; reduce traffic
congestion; improve air quality and comply with the federal
Clean Air Act requirements; and increase housing
affordability.
To date, the transit -oriented development concept has
drawn mixed reviews. Among the most vocal of its
supporters are environmentalists. They believe that by
conserving land and reducing traffic, the TOD could be part
of the solution to many problems the county is facing.
County planners are impressed by the plan as well. Thomas
Truszkowski, a senior planner for Sacramento County, says
the plan is definitely a positive step for the county_
While many developers are taking a wait-and-see attitude,
Phil Angelides, a Sacramento developer, sees its virtues.
After years of developing tracts in the typical suburban
pattern, Angelides convinced his partners to build a
pedestrian pocket. Regarding the new Clean Air Act
requirements, he says, "developers are going to have to be
more responsive or the authorities are going to really clamp
down."
Critics of the plan charge that the TODs will restrict
developable land and thus lead to higher housing prices,
contrary to theplan's affordable housing goal. Home
builders are concerned that the higher densities desired will
lead to a shortage of single-family homes.
Commercial developers contend that the retail market has
changed too much to accommodate the type of retail
envisioned in the plan. They question the assumption that
stores will have enough business to survive. Other critics
believe that the main objective of the plan, to reduce air
pollution, will not be solved by the TOD. They state that the
TOD will lead to more short trips, which requires more "cold
starts" of cars. Such "cold starts" are a major contributor to
air pollution.
Although the pedestrian pocket concept has been around
for several years, this is the first time a government agency
has actually endorsed it in a plan. The first use of the
pedestrian pocket was at Laguna West, a 1,000 -acre
community being developed approximately 11 miles south of
downtown Sacramento. The project, which won the APA
California chapter's 1990 Outstanding Planning Award, was
developed by Angelides. Many of the characteristics of
Laguna West are being applied in the new general plan.
The Sacramento plan is currently undergoing environmen-
tal review, to be followed by public hearings in early 1992.
ALG.
The Best -Made Plan
Turns 240
This year marks the bicentennial of Major Pierre Charles
L'Enfant's plan for Washington, D.C. The celebrated plan
formed the basis for the present city, with its characteristic
wide boulevards and plazas. Two hundred years later, the
city's layout still follows L'Enfant's original plan. Planning
historians have called L'Enfant the first American city