Written by Julia Miller
To borrow a phrase from a 1981 Maryland Court of Appeals decision, Faulkner v. Chestertown, historic preservation would be “about as futile as shoveling smoke” if there were no laws to protect historic buildings and cultural sites. Two recent cases, one from Seattle and another from Chicago, provide startling reminders that we need to heed these words as we go about our daily business. Preservation laws are important and we better not take them for granted. Otherwise, we will soon be shoveling smoke.
In Seattle, a husband and wife sought to overturn a decision by the city’s preservation board by challenging the very essence of the landmark law itself – the process for regulating changes to historic buildings. They argued that the city’s standards for deciding whether three new houses could be constructed on the lawn of a historic site are unconstitutionally vague. In other words, they say they have a legal right to know exactly what the law requires before seeking a permit. Although the Washington Court of Appeals in Conner v. City of Seattle disagreed, the state supreme court could have the final word. The property owner has petitioned the court for review.
In Chicago, two property owners convinced the Illinois Appellate Court that their lawsuit challenging the city’s criteria for designation of historic resources under the city’s historic preservation ordinance had merit and should be heard. They maintained that the city’s criteria – similar to those used by cities around the country – were so vague that a person of common intelligence could not determine from the face of the ordinance whether a building or buildings may be deemed a landmark or historic district. The case, Hanna v. City of Chicago, is now before the trial court and is likely to go back up on appeal.
Although similar vagueness challenges have been rejected by multiple courts in multiple states across the nation, these two cases are far from resolved. Imagine – what if Seattle’s and Chicago’s preservation ordinances were struck down? What if we had to start all over again?
Which brings me to my next point. Are you following the law? Are you aware of big decisions affecting historic preservation ordinances and other fundamental laws such as the National Historic Preservation Act (NHPA), which could affect your ability to protect your resources?
If the answer is no, don’t worry. The National Trust for Historic Preservation is excited to start bringing you information on all things legal. Every Friday, you can expect a new installment of "Preservation Law Notes," where we'll explore the latest preservation law developments – whether it's a new court ruling, an important administrative decision, or a new law.
Fortunately, there’s a lot to write about. You can look forward to ongoing reports on Seattle and Chicago, along with updates about the National Trust’s efforts to protect a New Orleans neighborhood from destruction by a proposed hospital complex, and new developments relating to the highly controversial Nantucket Sound wind farm project. You will also learn about two federal court decisions that are making headlines – one from a federal district judge sitting in Seattle who nullified the Federal Reserve’s agreement to sell its historic Seattle branch bank building without first complying with National Environmental Policy Act (NEPA) and NHPA; the other from a DC federal judge who ordered the National Park Service to comply with NEPA before proceeding with plans to demolish the Richard Neutra-designed Cyclorama Center in Gettysburg National Military Park.
As the official writer for this new series, you will hear from me most often. For those unfamiliar with my work, I’m a seasoned preservation attorney who served as the former editor of the Preservation Law Reporter and wrote A Layperson’s Guide on Historic Preservation. You can also expect to hear from other National Trust lawyers who work with these issues on a daily basis here in Washington and around the country. Look for news on preservation easements, updates on federal agency controversies, efforts to protect archaeological and traditional cultural sites, constitutional challenges, and, of course, all things moderne.
We look forward to this beginning and hope that you will too. See you next Friday.
Julia Miller serves as special counsel for the National Trust for Historic Preservation. She – along with her colleagues in the National Trust's Legal Department – will be blogging about all things legal each Friday in our new series, Preservation Law Notes.