March 16, 2020 Law Student Writing Comp Winner

“What’s Past is Prologue”

Ryan Bullard

I. Introduction

Though the history of the United States is short in comparison to the rich histories of its Old World peers, it boasts an abundance of historic buildings and neighborhoods worthy of preservation. As early as 1849, a committee of the New York State Legislature debated the public purchase of George Washington’s former headquarters at Newburgh, NY in order to protect its historic significance to the founding of the United States. Though these early efforts at preservation were often focused on preserving culturally and historically significant buildings or individual properties, at least since 1931 local preservation authorities have experimented with safeguarding entire neighborhoods. Today, some of the most recognizable historic districts in the United States, such as the Old City neighborhood in Philadelphia or the French Quarter of New Orleans, are protected by municipal ordinances designed to protect existing structures and preserve their character by regulating new development.  The prevalence and, arguably, invasiveness of these mostly well-intentioned regulations has given rise to litigation that debates the extent to which these ordinances should be able to restrict new development.

This note will first discuss the circumstances surrounding the advent of historic development guidelines across the United States. Then, in order to show the care with which historic development guidelines should be applied, it will analyze a case study based on the “Cherry–Gordon House” built recently in a historic neighborhood in Raleigh, North Carolina, along with recent legal developments in multiple jurisdictions, considering the difficulty faced in attempting to balance a natural evolution of design with rigid architectural historicism.

II. History of Historic Development Guidelines

Broadly, historic development guidelines arose as a way to protect the integrity of entire neighborhoods, supplementing the somewhat widespread practice of saving particular buildings or structures as historic landmarks. In 1816, for instance, the grounds where Independence Hall sits today were marked for subdivision and sale by the Pennsylvania state legislature, with the intent that the subdivided parcels be used as residential lots, and that Independence Hall itself should be demolished and its site sold as surplus land to the highest bidder.  A group of Philadelphia citizens, concerned with the disregard for the building’s significance to American history, lobbied the city to purchase the grounds and preserve the building, which it did in 1818.  Later, preservationist organizations reconsidered this piecemeal approach to historic conservation, and began to advocate for the preservation of entire neighborhoods, giving rise to the historic development guidelines that are prevalent in American cities today.

The Old and Historic Charleston District was the first historic district in the United States to be protected by municipal law.  The ordinance essentially created a “Board of Architectural Review” which had advisory authority over the exterior appearance of buildings that were “subject to public view from a public street or way.”  Though the Board did not actually possess the power to materially preserve or prevent the destruction of historic structures until 1966,  the original ordinance was significant because it was the first local law to recognize that preserving a group of historic buildings together as a whole – as a neighborhood – is at least as important, if not more so, than preserving individual landmarks. 

The Charleston city legislation was so influential that it was cited at a meeting of the Greenwich Village Association in support of efforts to preserve the historic lower Manhattan neighborhood.  Additionally, Albert Bard, the namesake of New York’s Bard Act,  which empowered local municipalities to regulate the aesthetic qualities of their jurisdictions, requested copies of the Charleston municipal code to serve as a model for similar New York legislation.

Today, the ordinances protecting the Charleston Old and Historic District are a set of broad principles and interpretations drafted by the Board of Architectural Review and ratified by the Charleston City Council.  The historic district in Charleston is known for its consistency of architectural design elements, which aids developers and architects in submitting proposals to the BAR that are largely congruous with the character of the neighborhood.  When proposals are not in line with the BAR’s demanding interpretation of the city’s design standards, the Board is not shy about denying applications for certificates of appropriateness, even when developers have otherwise fully complied with all other zoning requirements and regulations.

III. The Cherry–Gordon House

The history of design guidelines briefly surveyed in Section II illustrate the ways in which municipalities, facing unique challenges and circumstances, legislate to preserve the character of their historic neighborhoods. The implementation of these guidelines, meanwhile, can range from mere recommendation to legal enforcement and equitable remedies.  As can be seen in the Cherry–Gordon House case, some residents place high value on preserving their interpretation of the historic character of their neighborhood. On the other hand, private individuals invest a substantial amount of time and resources into dreaming, designing, and constructing their ideal residence. This case study will show how competing perspectives on the proper application of design guidelines can lead to anger, mistrust, and uncertainty for architects and developers.

A. In Oakwood, there lies the scene

Raleigh’s Oakwood District is an eclectic nineteenth century neighborhood that borders downtown Raleigh and the North Carolina Executive Mansion to the west, and which includes the 102 acre Oakwood Cemetery, established in 1869.  Its defining characteristic is the blend of a variety of architectural styles that have been adapted to a southern climate, often by adding large porches and deep-pitched attics to balance the hot summers and cool winters of North Carolina.  In spite of a middle-class exodus from the neighborhood in the years following World War I, it was designated by the City of Raleigh as its first “local historic district” in 1974, and added to the National Register of Historic Places later that year.

The Raleigh Historic Districts Commission (RHDC) is the municipal body tasked with publishing guidelines for individuals to abide by when undertaking new construction within the city’s historic neighborhoods.  Importantly, the Guidelines advise architects and developers to “site new construction to be compatible with surrounding buildings that contribute to the overall character of the historic district in terms of setback, orientation, spacing, and distance from adjacent buildings . . .” and “. . . [d]esign new buildings so that they are compatible with but discernible from historic buildings in the district.”  For the Oakwood District, the RHDC notes

[a] wide range of architectural styles and building types [] nestled within this tree-shaded setting. Many of the prominent buildings within the district are of recognizable “high style” architecture. Still, befitting its heritage as Raleigh’s early middle-class neighborhood . . . most of the dwellings in Oakwood are more simple, vernacular interpretations of these styles: frame construction covered with weatherboard using standard building parts available from local millwork and lumber suppliers . . . Oakwood, which contains Raleigh’s only intact 19th century neighborhood, is also a surprisingly diverse neighborhood of long-term change. Its evolution is painted across a broad canvas, diversity borne of architectural and topo- graphical variety, bound into a cohesive whole through repetition of detail and style, and a consistently intimate rhythm established along continuous streetscapes of tree-sheltered sidewalks.

It was on this canvas that Louis Cherry and Marsha Gordon sought to build their home. In late 2013, they applied to the Raleigh Historic Districts Commission for a certificate of appropriateness for a modern, single-family dwelling designed by Cherry.   In the detailed application, Cherry goes to great lengths to identify the ways in which his design “embraces the eclecticism and historic character of Oakwood, and is compatible with the architectural diversity and neighborly focus of the community . . . .”  Following a four-hour hearing and thirty-eight pages-worth of public testimony, the certificate of appropriateness for 516 Euclid Street was issued by the Design Review Advisory Committee, and construction was slated to begin in October of that year.

B. The storm is up, and all is on the hazard

Before construction began, Gail Wiesner, of 515 Euclid St, appeared before the Raleigh City Council to protest the issuance of the certificate of appropriateness on multiple grounds, including lack of due process and failure by the Committee on Appropriateness to uphold long-standing precedent.   The issue was postponed by the City Council until January, and construction on 516 Euclid began on schedule. Wiesner then appealed the RHDC ruling to the Raleigh Board of Adjustment,  a quasi-judicial, non-professional body responsible for final action on, inter alia, appeals of RHDC decisions granting or denying certificates of appropriateness.  The BOA scheduled a formal hearing on the subject for January, 2014.

In January, the Board of Adjustment heard three hours of argument and testimony brought forth by Wiesner and her legal counsel.  Meanwhile, Cherry and Gordon had the foundation dug on their home, and at least $100,000 worth of building material had been delivered to their construction site.  On February 10, the Board rendered its judgment and reversed the RHDC certificate of appropriateness 3-2, ruling that “there is no rational basis for connecting the design of [the Cherry–Gordon House] with the rest of the Oakwood Historic District . . . [the RHDC’s] determination that the [House] is [congruous with the character of the neighborhood] is inconsistent with the Guidelines and is, therefore, arbitrary and capricious.”

The decision was legally questionable and potentially harmful for a number of reasons. First, as BOA Chairman Charles Coble pointed out at the beginning of the meeting, the Board is required to adopt a deferential standard of review on appeal of an administrative decision.  Accordingly, the role of the Board was not to reconsider the merits of the RHDC decision; rather, the Board was tasked with determining whether or not there was sufficient evidence in the factual record for the RHDC to reach the conclusion that they did.  Second, as to the appellant’s allegations that the RHDC reviewal process was insufficient to protect her due process rights, the Board’s statutorily defined role was merely to ensure that due process was afforded the appellant on a rational basis.  Finally, this decision was highly unusual in that it authorized a body of non-professionals to re-hear applications for certificates of appropriateness on the merits, eclipsing the authority of the Design Review Advisory Committee to issue permits under the RHDC umbrella.  Furthermore, not only did the Board of Adjustment inappropriately empower itself to review DRAC issuances of certificates of appropriateness on the merits, but it established precedent whereby it could rescind a building permit, properly authorized, in the middle of construction. 

C. Cry ‘Havoc!’, and let slip the dogs of war

Meanwhile, public sentiment boiled over the Board’s decision, and passions flared on both sides of the debate. Many people spoke publicly in favor of the House, including Myrick Howard, the president of Preservation NC, a historic preservation society, who penned a letter to Oakwood residents saying

The controversy over the last few months in Oakwood about the design of the new home of Louis Cherry and Marsha Gordon has been one of the saddest and most disturbing of my 35+ year career in historic preservation . . . The Cherry/Gordon home will be part of the continuum of this vibrant architectural community of Oakwood, which is not a museum of historic homes in one style built in one period. Carriages do not fill Oakwood’s streets; cars and segways do! And despite what has been said, the segways will not stop coming through Oakwood because a contemporary home has been built in 2014.

Former North Carolina Secretary of Transportation Gene Conti, an Oakwood resident, wrote to the Raleigh City Council in support of the Cherry–Gordon House, as did Christopher Roberts, the President of the Triangle Chapter of the AIA, who wrote “Upholding the decision [by the Board] will cast a shadow of uncertainty for all projects to move forward with construction, where applicants can [expend substantial resources] with the possibility for the approvals to be revoked . . . without regard for time elapsed after approvals.”

Construction on the Cherry–Gordon House was halted as the Board officially denied Cherry and Gordon’s appeal on March 10. The media coverage was widespread: local cable affiliates covered the Board’s final decision,  and in the coming weeks and throughout the summer of 2014, numerous articles were penned in publications as far away as the New York Times and the London Daily Mail.  Adding publicity to the narrative was a witty, yet unofficial, Twitter account launched in March in support of the Cherry–Gordon House.  Opponents of the house made their voices heard as well.  Facing intense pressure, the City Council announced that it would appeal the Board of Adjustment’s decision in Wake County Superior Court.  

D. All’s well that ends well

Almost a year after the original certificate of appropriateness was issued, the trial to overturn the Board’s decision ended.  In its order, the Superior Court found that, “[b]ased on the evidence before the [RHDC’s] COA Committee, there was substantial evidence and a rational basis for the issuance of the certificates of appropriateness to Petitioners . . . . The decisions of the RHDC’s COA Committee were not whimsical, willful, or without consideration of facts or law or without determining principle.”  Additionally, the Court vindicated Chairman Coble’s statements from the meeting of February 10, finding that “the [Board] committed reversible error in failing to dismiss the Wiesner appeal on grounds of lack of standing” and in “failing to apply the appropriate standard of review when the [Board] conducted a de novo review rather than the appropriate review based upon the whole record test.”  The proper application of the whole record test – a deferential standard – results in upholding the certificate of appropriateness in the absence of clear error.

Challenging the trial court’s findings, and specifically its refusal to allow her to supplement the record to support her standing, Wiesner and her counsel appealed the decision.  Wiesner argued that the Cherry–Gordon House caused her “special damages” resulting from an incongruous structure being built across the street, which gave her standing to challenge the certificate of appropriateness before the Board of Adjustment.  The basis of this claim was an anticipated decline in property value; however, the Court of Appeals cited precedent that “a property owner does not have standing to challenge [others’] lawful use of [their] land merely on the basis that such use will reduce the value of her property.”  Ultimately, the Court of Appeals ruled that “although the parties dispute whether the Cherry–Gordon house is architecturally congruous with the Oakwood Historic District, petitioners’ use of the property for a single-family residence is clearly lawful . . .” and Wiesner’s failure to correctly allege special damages to the Board was procedurally insufficient to establish standing in the case.

E. Epilogue

Since at least 2010 and even as the Cherry–Gordon House case unfolded, the RHDC had been revising its design guidelines, which were originally adopted in 2001.  Months after the final resolution of the Cherry–Gordon House case, Gail Wiesner and a number of other Oakwood residents appeared before the Raleigh City Council once again to propose additional language to the Guidelines.  The additional language would have required the RHDC to consider whether proposed new construction would be “starkly different” from its neighbors, replacing the “congruity” standard that the RHDC had used in the Cherry–Gordon case.  The residents argued that the new language would counteract the perceived bias of the RHDC in reviewing applications for certificates of appropriateness by introducing some “compromise” into the Guidelines.  According to the meeting minutes, Dave Wiesner, husband of Gail Wiesner, “encouraged the Council members to be open to the concerns of the public and the non-professional preservationists. He closed with a quote from Abraham Lincoln: ‘I'm a firm believer in the people. If given the truth, they can be depended on to make critical national decisions.’”  The Council approved a final version of the Guidelines that does not include the changes.

F. O, had I but followed the arts!

The Cherry–Gordon case is important not so much because of the composition of the guidelines themselves, but mostly because of the implications raised by the Board’s abuse of discretion in reviewing the certificate of appropriateness on the merits. Relatedly, the case is also notable because it highlights the disparate opinions that individuals hold over the ways in which we should preserve our historic neighborhoods.

The Board’s reversal of the certificate of appropriateness, if it had been upheld, would have introduced considerable uncertainty in the Triangle’s construction industry.  Developers and architects should have a reasonable level of confidence in the dependability of a certificate issued by a committee comprised of respected architects informed in their decision-making through higher education, formal licensure, and years of practice.  For a quasi-judicial board (mostly comprised of lawyers) to challenge their professional opinion without the requisite qualifications was to presume that their interpretation of the meaning of “congruity” to the “character” of Oakwood was more sensible. The proper analysis for such a body to undertake, as previously stated, is simply to ensure that the RHDC reached a reasonable determination after properly considering all available evidence and testimony, which was clearly established.

Similarly, the February 2017 lay-proposal to amend the Raleigh design guidelines represents an attempt to compel the RHDC to apply a particular opinion about the visual appropriateness of contemporary structures in historic districts.  Rather than reviewing applications for certificates through a textually-grounded analysis of the proposed construction, the proposed language would have imposed a “shock the conscience” type of visual scrutiny.  Contrary to the Oakwood residents’ assertion that the changes would give architects more certainty about the appropriateness of their designs, the changes would instead stifle the natural visual evolution of historic neighborhoods and possibly introduce some degree of additional uncertainty resulting from the subjectivity of such an examination.

The trend of trusting non-design professionals to adjudicate the suitability of new construction in historic neighborhoods has appeared in other jurisdictions as well. For instance, in Colorado, a court held that the Historical Preservation Commission of Georgetown, CO, was given too much authority to determine which structures had historical and/or architectural significance.  As a result, the court overturned the Commission’s denial of a certificate of appropriateness to construct a group of modern townhomes.  More recently, in Alabama, a court similarly overturned a historic preservation commission’s decision to deny a certificate of appropriateness on the grounds that the commission could not rationally deny an application merely because the proposed window design did not meet specifications.

On the other hand, most jurisdictions have by-and-large remained deferential to the expertise of architectural review boards.  That is not to say that all architectural review boards treat applications the same: Charleston’s BAR is notoriously stringent in upholding the city’s historic design principles, and courts have been especially deferential to its rulings.  Cities with less of a rigid interpretation of what defines the “character” of a given historic area, like Raleigh, tend to allow a slightly more permissive construal of the new construction design guidelines that still retains the neighborhood’s essence without insisting on the creation of a Hollywood-set, faux-historical district.

IV. Analysis and Conclusion

The irony is that Wiesner and other like-minded residents protest the same power of the RHDC to professionally interpret the guidelines that allows Charleston’s BAR and, for example, New Orleans’ Historic District Landmarks Commission, to be so exacting in their review of new construction or renovation. The 2017 attempt to amend the Guidelines endeavored to constrict that power by hamstringing the RHDC into using one viewpoint in particular in its analysis. The bottom line is that local design professionals are best equipped to contextualize statutory design guidelines written to protect the overall character of unique neighborhoods. What works for one municipality is not guaranteed to work in the next, but design professionals tend to approve or deny certificates in a way that carefully considers the purpose of the guidelines they work under.

For example, the Cherry–Gordon House, though controversial, clearly contributes to the eclectic architectural heritage of Oakwood as it’s described in the “character essays” portion of the Guidelines.  A stroll through historic Charleston is a testament to the ability of its BAR to achieve the kind of architectural consistency that has been a boon to the tourism industry in that city. Perhaps the most famous municipal land-use case, Penn Central,  arose from the denial of a certificate of appropriateness by the New York City Landmarks Preservation Committee.  The proposed plans would have destroyed the appearance of Grand Central Terminal as it’s known today, and the Committee’s denial (and subsequent affirmation of the denial by the Supreme Court) was “hailed as an example of ‘maturity’ on the part of a ‘country that is finally recognizing its urban assets and the need to protect them for livable cities.’”

As shown by Penn Central, numerous Charleston BAR denials, and cases like the ones mentioned in endnote 75, design professionals have proved themselves capable stewards of the nation’s architectural treasures. At the same time, the outpouring of support for the Cherry–Gordon House and the vindication of the RHDC decision to issue its certificate of appropriateness shows the legitimacy of blending contemporary interpretations of historic styles in suitable neighborhoods. Design review boards have earned the trust of laymen, architects, and preservationists alike through careful and considered guidance and application.

 

Fig. 1

Fig. 1

Rendering of the proposed Cherry–Gordon House, from its application for a certificate of appropriateness. Retrieved from http://www.ncmodernist.org/Cherry-EuclidCOA.pdf on Dec. 11, 2018.

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Ryan Bullard

J.D. Candidate, University of North Carolina School of Law, Chapel Hill, NC, Young Lawyers Division