HRAB 10-20-92 Meeting AgendaTO:
FROM:
RE:
DATE:
COUNTY of FREDERICK
Department of Planning and Development
703 /665-5651
Fax 703/678-0682
MEMORANDUM
Historic Resources Advisory Board
Kris C. Tierney, Deputy Planning Directoo�
Meeting Date and Agenda
October 15, 1992
There will be a meeting of the Historic Resources Advisory Board on October 20, at
7:30 pm in the Conference Room of the Old County Court House.
Please let me know if you are unable to attend.
1.
III
3
AGENDA
Update on status of proposed procedures and requirements for Rezonings and
Master Development Plans affecting historic properties.
The Planning Commission will be having an informal discussion at their
meeting on November 4th regarding the draft proposal developed by the
HRAB to require certain information from applicants at the time of
rezoning or master plan application.
Discussion of design contest for Plaque Program.
Other.
9 North Loudoun Street P.O. Box 601
Winchester, VA 22601 Winchester, VA 22604
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REVIEW BOARD NEWS
PRESERVATION A L L I A N CE OF VIRGINIA
No. 16 • Summer • 1992
a
Let's Understand the Lucas Decision
Before We Interpret It
According to Stephen Dennis, Esq., Execu-
tive Director of the National Center for
Preservation Law, the recent U.S. Supreme
Court decision on the controversial "tak-
ings" case, Lucas v. South Carolina Coastal
Council, has been widely misunderstood. In
commentary written about the Lucas case,
Dennis sees a similarity to the response to
the 1987 First English land use regulation
decision, where many in the mass media as-
sumed a "taking" had occurred, when no such
decision was rendered.
The Lucas decision by the U.S. Supreme
Court was relatively straightforward: the
Court reversed the state court's decision
and remanded the case for further consid-
eration. However, the court's explanation
of its decision may be needlessly unclear
to non -lawyers.
In the Lucas decision, the majority of jus-
tices noted:
that governments should explain their
reasons for implementing land use regu-
lations that are so burdensome that they
remove "all economically beneficial or
productive use of land." and
that governments may not enact such reg-
ulations legislatively without provid-
ing compensation unless common law nui-
sance principles already in effect in a
state suggest that such regulation is
incident to property ownership.
The majority, decision, written by Justice
Scalia, sent the case back to the South
Carolina Supreme Court with strong sugges-
tions that the court look closely at the
"temporary regulatory taking" issue which
was ignored in the original decision. The
previous decision of the South Carolina
Court would need to be justified by ex-
plaining (if possible) that pre-existing
South Carolina common law nuisance princi-
ples would have permitted the Lucas proper-
ty to be as heavily regulated as the South
Carolina Beachfront Management Act had reg-
ulated it from 1988 until 1990. The Act was
amended in 1990 to allow for limited devel-
opment of beachfront property under certain
circumstances.
More importantly, the U.S. Supreme Court
did not rule: 1) that every reduction in
value of real property attributable to a
governmental regulation should be compen-
sated, 2) that government is free to re-
strict or prohibit without compensation any
use which it determines is legislatively
"harmful," or 3) that the Lucas property
had been "taken."
Dennis notes that if South Carolina can
defend on nuisance grounds the impact of
the Beachfront Management Act on the Lucas
property from 1988 until 1990 or can demon-
strate that the property did not lose all of
its value during this period, then the is-
sue of a "temporary" regulatory taking may
never need to be decided. The case is far
from over, and the U.S. Supreme Court's
disposition of the case is far from heavy-
handed.
Local Administrative Action
and Historic District Zoning
The case of Cook v. _Board of Zonin o Appeals
of the City of Falls Church. a recent deci-
sion by the Virginia Supreme Court, in-
volves the City of Falls Church's historic
district zoning ordinance and is instruc-
tive for review boards, zoning administra-
tors. and preservationists across Virg-
inia.
The appeal came when a landowner (a church)
objected to having the historic district
ordinance apply to its property, claiming
that the procedural formalities necessary
for application of the ordinance had not
been performed. While the trial court
agreed with the City, the Supreme Court
reversed that decision and held with the
landowner.
Falls Church attorney Ross D. Netherton, a
long-time expert on historic district zon-
ing in Virginia, has reviewed the Court's
decision. He writes that the Falls Church
ordinance is not typical for Virginia and
that the procedural problems that led to
the appeal have been corrected.
What the case does emphasize, however, is
the absolute importance of local adminis-
trative action to carry out to the letter
the terms of historic district ordinances.
In the Falls Church case, a period of delay
in inventorying and documenting structures
to which the ordinance applied, coupled
with uncertain legal language, led to the
decision.
According to Netherton, "Administration of
preservation zoning ordinances by local
planning and zoning boards, ARBs, and his-
torical commissions has to be kept sharp.
It cannot be permitted to become sloppy, or
else it will be tagged just as the (en-
closed) decision indicates. That is where
the Preservation Alliance and its seminars
for local preservation groups can do, and
F
is doing, valuable work. Keep it up."
Netherton's article The Due Process Issue
in Zoning for Historic Preservation, re-
printed from the 1987 issue of the Urban
Lawyer is available for $5 from the Preser-
vation Alliance of Virginia. For addi-
tional information, or to order a copy of
the article, contact the Alliance office at
(703) 886-4362.
Calendar of Events
Several seminars, workshops, and ac-
tivities of interests to architectural
review boards, historical commissions,
and preservation groups are planned
for the upcoming months.
October 3-12 — Virginia Archaeology
Week, sponsored by the Department of
Historic Resources, the Council of
Virginia Archaeologists, the Archeo-
logical Society of Virginia, and the
Preservation Alliance. For informa-
tion call (804) 786-3143. Statewide.
October 23 —Membership Meeting of the
Preservation Alliance of Virginia. A
gathering of Virginia's preservation-
ists to discuss programs, and future
directions. $15 per person includes
lunch. (703) 886-4362. Richmond.
_November 14 — Workshop for Architec-
tural Review Boards. Sponsored by the
Preservation Alliance. Sessions on
process, conflict resolution, and
handicapped accessibility design.
(703) 886-4362. Fredericksburg.
April 15-17 — Eighth Annual Virginia
Preservation Conference. Our annual
spring workshops will have more ses-
sions than ever for review boards, plus
tours and chances to meet with other
preservationists. (703) 886-4362.
Danville.
Lucas Decision (continued)
Suggestions that the U.S. Supreme Court has
broken important new ground in ruling that
a property owner must be compensated when a
government regulation has the effect of
removing all value from his property betray
an ignorance of previous Court precedents.
Dennis.continues by noting that unfortu-
nately for political commentators, there is
nothing in the Lucas decision that offers
any hope to those who believe with George F.
Will (writing in the Washington Post) that
government "should be required to compen-
sate property owners when its actions di-
rectly and substantially diminish the value
of property." In his majority opinion,
Justice Scalia wrote:
It seems to us that the property owner
necessarily expects the uses of his pro-
perty to be restricted, from time to
time, by various measures newly enacted
by the State in legitimate exercise of
its police powers .... In the case of
land, however, we think the notion
pressed by the Council that title is
somehow held subject to the "implied
limitation" that the State may subse-
quently eliminate all economically val-
uable use is inconsistent with the his-
torical compact recorded in the Takings
Clause that has become pan of our con-
stitutional culture.
Governments will need in the future to be
more careful in justifying severely burden-
some forms of land use regulation. But
nothing in the Lucas decision affects rou-
tine forms of land use regulation, many of
which have previously been specifically
sanctioned by the U.S. Supreme Court. And
some states may discover that almost -for-
gotten nuisance law principles permit sur-
prisingly strong forms of land use regula-
tion through legislative actions that would
find ultimate judicial validation in state
courts.
(Used by permission from a Preservation Law
Update prepared by the :National Center for
Preservation Law. Summary material from
the Maryland Association of Historic District
Commissions newsletter was also included.
For additional information on the Lucas de-
cision, contact the National Center at (202)
338-0392 in Washington, D.C.)
Alliance Handbook On HDZ Now In
Use Across the State
The Handbook on Historic District Zoning,
published by the Preservation Alliance of
Virginia with support from the National
Endowment for the Arts, is now being used by
local governments and architectural review
boards across Virginia. Written by Al-
liance Executive Director David J. Brown
and Al Cox, AIA, currently the staff plan-
ner with the City of Alexandria ARB, the
Handbook covers a variety of issues re-
lated to historic district zoning.
The Handbook:
• contains information on the authority for
historic district zoning in Virginia;
• identifies key players in the HDZ pro-
cess;
• includes an extensive section on the de-
velopment of design guidelines; and
• features a lengthy appendix, including an
annotated ordinance based upon the research
of Alliance trustee Oliver A. Pollard, III.
Copies of the Handbook on Historic District
Zoning are available for S35 for members
and $50 for non-members.
Please send me _ copies of the Handbook on
Historic District Zoning at S35 for members (S50
to non-members). Amount enclosed $
Name:
Address:
City/StatefZip:
Mail to: Preservation ,alliance of VA
P.O. Box 1407, Staunton. VA 24401
Fall Workshops Focus on Historic
District Zoning Process and Hand-
icapped Accessibility
How does a review board make decisions that
are defensible? Does a historical commis-
sion have a role to play in resolving con-
flicts over design? How might the provi-
sions of the Americans With Disabilities
Act (ADA) affect decisions made by the ARB?
These and other questions will be answered
at the Architectural Review Board Workshops
sponsored by the Preservation Alliance of
Virginia and scheduled for Saturday, No-
vember 14, 1992, in Fredericksburg.
The workshops are designed for members of
architectural review boards and their
staff, boards and staff of local preserva-
tion organizations, planners, and inte-
rested citizens. The day will begin with a
Preservation Alliance of Virginia
Post Office Box 1407
Staunton, VA 24402-1407
consideration of how a review board should
structure its work and decision-making pro-
cess. This will be followed by a session on
conflict resolution and negotiating strat-
egies that will involve audience participa-
tion. The afternoon sessions will focus on
questions of handicapped accessibility and
design, and will feature a session on the
"ADA: What Preservationists Should Know."
Information on the workshops will be mailed
by late September. For additional informa-
tion, or to register for the workshops,
call the Alliance office at (703) 886-4362.
The following individuals, businesses, and founda-
tions have provided underwriting support of the
Preservation Alliance of Virginia over the past
year: Anonymous (1); Mrs. A.D. Barksdale;
Mr. and Mrs. S. Allen Chambers, Jr.; the Eu-
gene Holt Foundation; Mr. and Mrs. Addison
B. Thompson
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