Local Landmarking v2.0 – Are Historic Preservation’s Glory Days of Local Landmarking Winding Down?

Originally Published 2009

By Gary L. Cole AIA, Esq.

Note: Despite its title, this article in no way advocates scrapping the current practice of local landmarking, though it does propose that serious upgrades are not only desirable, but probably unavoidable.

Part 1 of this two-part series argues that a combination of possible changes in the historic preservation legal landscape and the certainty of a dwindling supply of properties worthy of landmarking may force the current practice of government-controlled local landmarking to evolve.

Part 2 of this series proposes modifying the current practice of local landmarking in a way that addresses both problems raised in Part 1 by shifting landmarking from a government-only practice to one that shares responsibilities with the private business and investment sectors, i.e., those with the capital and the appetite for risk needed to invest in historic rehabilitation – a plan I’m calling here Local Landmarking v2.0.

Part 1 – Possibly – Maybe – Depends.

“If, one day, for some mysterious reason, all the buildings, settlements, suburbs and structures built after 1945 – especially those commonly called “modern” – vanished from the face of the earth, would we mourn their loss? Would the disappearance of the prefabricated tower blocks, mass housing estates, commercial strips, business parks, modular production halls, university campuses, schools and new towns, damage the identity of our favorite cities and landscapes?

If, on the other hand, some parallel phenomenon destroyed in one fell swoop the whole of out pre-World War II architectural heritage, namely all “historic” buildings, hamlets, villages, bridges, and cities, what would be the significance of such an event? What would be a greater loss? Replacing all pre-1945 buildings with post-war buildings, or the reverse?”

Leon Krier – Introduction to “The Architecture of Community”

Since the enactment of the National Historic Preservation Act in 1966, preservationists, including local, state and federal agencies, have been busy promoting the preservation of our nation’s built environment through a number of means, including, legally designating both individual properties and districts as historic via local preservation ordinances, sometimes state landmarking programs, and by listing on the federal National Register of Historic Places.

Initially created as a response to the widespread destruction the country’s pre-WW II built environment . . . during the mid-century halcyon days of urban renewal, government-run landmarking has become one of preservation’s most effective tools for achieving its goals. However, four decades and more into it, historic preservation as a movement is roughly middle-aged and changes generally unnoticed by the preservation community are starting to manifest that could mark the winding down of an era of largely unfettered government-controlled landmarking.

The usual justification for local governments to convey landmark status on privately owned property is for the “protection” of the property for the “public good” via restrictive ordinances which, in a broader legislative scheme, are somewhat balanced by various financial incentives for private investment – private investment being the only truly sustainable method of preserving historic properties. The incentives are tagged, of course, with the usual government oversight and controls during their term.

But does a recent Illinois case herald the twilight of changes in the public’s taste for government-enforced “protection” of private property, and will this condition become more dire as the ready supply of good candidates for landmarking begins to dry up, forcing preservationists to nominate less-worthy properties, which, of course, would make government-controlled landmarking more vulnerable to successful legal challenges as well as undermine the credibility of local landmarking?

A Change in Public Appetite?

On May 28, 2009, in a surprise reversal of nearly forty years of established historic preservation law, the Illinois Supreme Court denied an appeal by the City of Chicago to review the Appellate Court of Illinois’ ruling in Hanna v. City of Chicago, which, among other things, had struck down the Chicago Landmarks Ordinance as “unconstitutionally vague.” Preservationists across the nation were stunned. But the game is still on as the case will likely head back to the Cook County Circuit Court for trial.

Reading through the Chicago press and the preservation blogosphere, it’s clear that Hanna’s treatment by Illinois courts unleashed a viral epidemic of angst among many regarding the fate of local landmarking in Illinois; a deep fear that local preservation ordinances around the state would soon be plowed under by brigades of cash-belching bulldozers manned by cigar-chomping, cloven-hoofed developers – or something like that. Among others, there’s a sense that Hanna represents not a sea-change in landmarking, but merely a lucky half-time buzzer shot by a persistent plaintiff.

Possibly.

Should Hanna be upheld by the trial court, the effect on Chicago’s landmarking ordinance and the historic status of thousands of designated properties – including rehabilitation tax benefits many have received – could be profound. Further afield, upholding Hanna has the potential to gut the soft underbellies of all Illinois local landmark ordinances, and eager land use attorneys nationwide are no doubt sharpening their talons in anticipation of the outcome. At least one court challenge using Hanna as precedent, has already happened in Seattle.

Maybe.

Both camps could be right. Preservationists have had their way successfully defending landmark ordinances for a long time – decades actually – and among some there may be an unspoken dread that the worm has finally turned and that real estate developers, so often thwarted in their evildoing by the preservation faithful, may finally be in a position to serve up a little karmic retribution. Among others, simply unused to failure in the legal arena, there may be an assumption that all will be well when the status quo is restored by a clear-thinking trial court.

But regardless of their leanings, preservationists may be missing the broader implications of Hanna – which is the way in which Hanna’s plaintiff prevailed. This was no fluke – the plaintiff didn’t successfully challenge Chicago’s landmark ordinance because rare planetary alignments had bewitched the normally sound judgment of the lower and upper courts. Nor was the plaintiff successful because their attorney had temporarily channeled Daniel Webster and assailed the courts with Webster’s soaring rhetoric and undeniable logic. No, none of that was required because challenging an ordinance on the basis of vagueness is a pretty straightforward administrative law challenge – Administrative Law 101 – no great legal craftiness or magic is required.

Most dripping wet first-year litigation attorneys can competently craft a workable municipal ordinance challenge using the vagueness argument. That as seasoned an attorney as the plaintiff’s in Hanna not only chose to use such a basic straightforward argument – but succeeded with it – should be real cause for concern among preservationists, since, despite the offhanded dismissal of the outcome by some preservationists as an anomaly, legally speaking, the plaintiff’s argument was no last second Hail Mary pass – it was a clever exercise of simplicity and audacity. Quite ordinary actually and it’s that ordinariness that should cause preservationists the greatest alarm – but that’s exactly that point that many may be missing: why wasn’t it harder for the plaintiff to prevail?

And whether Hanna is ultimately overturned is only part of the issue – it’s just one lawsuit. What the success of Hanna to date may represent are the first early warning signs of changes occurring in the public’s attitude toward government’s long-established control of private property through the imposition of restrictive historic preservation ordinances. If so, challenges to local landmark ordinances based on such pedestrian legal claims of vagueness and unconstitutionality, will, not may, become healthy sources of employment for land use attorneys.

But why would local landmarking ordinances now be vulnerable to the types of challenges they’ve successfully swatted away for four-plus decades? The answer may have two prongs.

Prong One: Government overreaching.

Historic preservation became a movement partly because the 1960s was the midwife to a number of movements based on changes in social attitudes – some good, some quite ridiculous – and the timing was right. There was no national policy about conserving the past and in that post-war, space-age decade, architects and planners had largely fallen under spell of late Modernism – not an expression known for its sentimentality about the past – and a great many pre-WW II buildings were looking pretty dated and shabby next to the shiny new utopian Modernist abstractions. Preservation arose because the general public – not architects, planners and designers – failed to share the elites’ disregard of the past. The public just liked the old buildings and their connections with history, perhaps intuitively understanding that something of the country’s architectural greatness had been forever lost with the unrestrained enthusiasm for the new in the preceding decades.

The nice thing about a democracy is that if enough ordinary people want something, there’s not really much elite cadres of professionals and theorists can do about it, and since its formation as a movement, preservation has been rolling along nicely and generally doing a pretty good job. However, maybe it arose during the 1960s and in some ways is still encrusted, barnacle-like, with the good-versus-evil histrionics and rhetorical baggage of that most silly of decades, many preservation activists and real estate developers still just don’t play well together. One side sees owners of historic properties simply as their current caretakers; the other side sees fee simple ownership of property as imbued with the absolute right to modify or even demolish their properties as they, not government see fit.

So far, preservationists have been doing pretty well at defending their turf. The problem is, it’s not really their turf – it’s usually someone else’s that they’re pushing to be landmarked – sometimes with the owner’s consent, or, in the case of Hanna, definitely without. For preservation’s success to continue, so must its public support, which means not just support of its true believers, but also the support of the business community – the people who actually invest their hard capital in redevelopment, and, who both fund litigation and finance political campaigns for those in positions to affect landmark ordinances. And success breeds complacency, even hubris, so when a case like Hanna makes its way through the round robin of legal playoffs all the way to the finals, preservationists are understandingly bewildered. But change is inevitable – even desirable – and in the face of change all things either adapt and evolve, or become extinct.

Consider the notorious case of Kelo v. The City of New London (2005), a case unrelated to local preservation ordinances, but one in which the private properties of the plaintiffs (which were located in a local historic district) were taken by eminent domain and transferred to other private ownership – not generally permitted under the U.S. Constitution’s Fifth Amendment. Bitter litigation over control of the properties ensued over a five-year period before the U.S. Supreme Court sided 5-4 with the City of New London (which then tried to sue the plaintiffs whose land they’d seized for back rent during that five-year period claiming it was theirs all along.)

This egregious example of government overreaching via land use controls sent shivers across the country, causing then-President Bush to issue an executive order curtailing the federal government’s use of eminent domain powers. The states responded also. Prior to the Kelo decision, only eight states (including Illinois) had legislation preventing the taking of private property for economic development (except in the case of blight), but by 2007, that number had risen to forty-two. Whether the lessons have filtered down to the local level remains to be seen.

Sure, Kelo was Kelo, and Hanna is Hanna, but in the minds of many, ham-handed government control over private property is the very sort of overreaching that the U.S. Constitution was written to prevent. The ripple effect of the Kelo decision clearly extended to the preservation community as even the National Trust for Historic Preservation decried the Court’s decision to permit the City of New London to condemn property for private development.

So does the public’s response to Kelo, added to nearly ten years of broad federal government expansion – especially since the 2008 elections – indicate a possible pushback against government overreaching that at least partially explains how a challenge to the Chicago Landmark Ordinance as pedestrian as vagueness could have succeeded in Hanna? It’s posed as a question in this article, not a conclusion, but, when added to the second prong of this discussion that follows – a much stealthier factor – far thinking preservationists may at least consider whether change is catching up with the preservation movement and whether the glory days of local landmarking might be winding down – and that a new game plan may be in order.

Prong Two: The past just ain’t what it used to be.

In the forty-odd years since the passage of federal historic preservation legislation and the creation of federal, state and local bureaucracies, university programs and legions of preservation professionals and consultants, historic preservation has become something of a business – an industry really. And like all industries, historic preservation needs raw materials to manufacture product and keep everyone busy.

The first step in providing the historic preservation industry with something to protect and preserve requires, of course, providing it with historic properties – which means the entire process starts with the creation of newly minted historic properties – or in the case of Hanna, entire districts.

Without new product, preservationists would have to be content to simply curate the existing stock of historic properties, which, despite best efforts would naturally experience attrition over time through demolition or casualty. Or, they could scour the country for properties that have previously gone unnoticed or revisit previously rejected landmark candidates, but doing so would require not only the usual justifications for landmarking, but also require legally defensible explanations of how such properties, once ignored or rejected, would have suddenly become attractive landmark candidates, especially with the specter of Hanna – whatever its ultimate outcome – prowling around.

So, what’s the problem with the status quo? Why can’t preservationists just continue on blissfully nominating properties and districts and providing the raw materials for the preservation industry the same way they have for over forty years?

The answer, though obvious, isn’t one I think preservationists are comfortable discussing: that the pace of landmarking, being local, state or federal, must necessarily decline over time as the supply of landmark-worthy properties dwindles, because they’re just not making future historic properties like they used to.

I know, the National Register’s (the progenitor of all local landmarking criteria) rolling 50-year rule, adopted by most local landmark ordinances, ensures a constant supply of newly minted potentially historic properties. But let’s do the math – 2009 minus 50 is 1959, and 2010 minus 50 equals 1960, 2011 minus 50 equals 1961, and so forth. Which means, of course, that going forward, preservationists will either have to consider nominating the fifty-year old and older wallflower properties they already passed over or rejected during the beauty contests of landmarking’s glory days, or, they’ll have to start designating the very type of Modernist buildings of the 1960s that were constructed over the rubble of, say, oh, I don’t know – Penn Station – the demolition of which helped spark the creation of a national historic preservation movement. I believe that’s what’s referred to as irony.

And while under the National Register’s sublimely relativistic significance criteria, where even the banality of a candidate for landmarking is a matter of context, in the real world of local preservation commissions and irritable landowners, popular support for designating as landmarks 1960s-era Piggly Wigglys, 1970s-era Meisian wannabe office buildings, Brutalist concrete campus buildings and strip malls to supply historic preservation with its raw materials may not generate the kind of popular support for easy landmarking victories to which preservationists have become accustomed to over the past forty years of designating truly worthy historic properties and districts. Not that some of those aren’t worthy of landmark status – it just may not be such an easy sell – or no sale at all without public support.

Don’t get me wrong – I like good Modern and neo-Modernist buildings – be they of the Meisian, International Style, Brutalist or Kitschy-flavored varietals. I find well executed Modernism quite serene and soothing – like the soundtrack to Gattaca – though I admit that some of the more dreary institutional examples have nearly driven me to cram handfuls of angry, flesh-eating beetles into both ears with the hope that they chewed their way to my primary visual cortex post haste. But one of my favorite moments as an architecture student studying abroad was a pilgrimage to the Villa Savoye – I even snapped a photo of Corbu’s ghost gliding down the spiral staircase to say bon jour – or, maybe it was foutez le camp! (get lost!) – my French was never that good. I’m even on board with the Docomomo and Preserving the Recent Past crowd – for the most part and as long as they don’t get too silly about it.

And, whether the bulk of preservationists prefer their buildings served with a little more historical influence, Modernist works – even juicy examples of the gawky, ill-proportioned and badly detailed commercial goofiness that filled architectural magazines in the 1960s and 70s – have their places in history and I’m comfortable with letting future historians argue about whether the post-WW II building era represented a bold break from the tyranny of historical precedent – or a dark age of really bad taste brought on by a general Cold War malaise.

But I’ve also long believed that the success of any building’s design should not be determined by elite cadres of architects or design magazine publishers – but by everyone else – those not so specifically trained and who respond more emotionally and viscerally than intellectually and rationally to buildings, especially since in terms of raw numbers there are far, far more of the latter than the former who will either be uplifted or appalled by any particular design.

It’s really about the people in the street – you know, the very sorts of grass-roots volunteers who founded the historic preservation movement and upon which preservation still depends for support, especially when nominating local landmarks. These are the people who form preservation not-for-profits in small towns around the country to preserve a few ancient properties fallen on hard times; raising the money to do so with bake sales and chicken frys, along with the occasional grant from the state or the feds. They also sit on local preservation commissions who approve or deny landmark nominations. So while the more progressive preservationists may spin delightful right-brained yarns about the historical and cultural significance of post-war Modernist marvels – well, good luck with that outside the big urban centers and college towns. Preservation as a broad movement still needs the support of the other public – those whose love of the past is not written in strained and contrived landmark designations for generally unloved buildings, but on the smiling faces of people who wistfully recall memories of their now near-empty main street – as it was before a new retail center slunk into town – and who want to do something about it.

So the problem – to put it simply – is that the low hanging fruit of easy landmarking has largely been picked and the sheer amount of quality landmark candidates on which the preservation movement has built its successes is drying up. It’s just a question of numbers. No one’s making the great 19th and early 20th century neoclassical, historical revival or Art Deco structures anymore – the types of buildings that rallied the citizenry in the 1960s to form a national preservation movement – and even post-WW II Modernist buildings are being demolished at a brisk pace and without great concern for their place in history.

What to do?

If preservation as a movement and an industry is to continue thriving in the face of possible weakening public support for local landmarking, adverse legal precedent and a dwindling supply of landmark-worthy building stock, where will the raw materials for the preservation industry come from? They can only come from one place – the past – and the past just ain’t what it used to be.

One solution, which is starting to be seen – and which wise preservationists resist – is to nominate entire districts and rely on the collective strength of a large geographic area to obscure the weakness of many unworthy individual candidates. But this is a sham and a very dangerous one for preservation in general as it attempts to impose land use controls on a large number of grumpy potential plaintiffs who simply don’t want government telling them what they can and cannot do with their properties.

There exists a direct relationship between the mediocrity of any candidate(s) for landmarking, either as individual properties or as districts, and the strained logic used to argue for their historic designation. The weaker the candidate for landmark status – the more unlikely it has any true architectural or cultural significance – the more shrill and contrived must be its argument for historic status, especially in the face of opposition.

But a loud argument doesn’t make for a more persuasive argument – it makes for a more desperate one. And as the quality of landmark candidates decreases, so too will the valid reasons for anointing them as such – all of which just greatly increases the chances of successful future Hanna-like challenges, maybe eventually some based on nothing more complicated “it just ain’t good enough.”

Under our country’s legal system, each court decision creates something called precedent that future lawsuits base their claims on, and eventually enough precedent of a certain type can lead to legislation which changes the written law – which, in case of local landmark ordinances could eventually mean a severe curtailing of local government powers to create local landmarks. And don’t look to the National Register to protect local properties. Generally speaking, unless government money is somehow involved, properties can usually be listed on the National Register on Monday and demolished on Tuesday – and not a word of local or federal government consent is required.

So, are some preservationists missing the real implications of Hanna’s success, is the well starting to run dry and are preservation’s golden days of landmarking winding down?

Depends.

Next: Part 2: Preservation v 2.0 – A solution based on the best reasons for local landmarking – to preserve and reinvest in not just buildings – but in communities.

Gary L. Cole AIA, Esq. is an Illinois and Florida-licensed attorney and Illinois-licensed architect. He received his law degree from Loyola University Chicago, holds a Bachelor of Architecture degree from the University of Illinois at Chicago, a Master of Architecture degree from the University of Illinois School of Architecture at Urbana-Champaign in its Historic Preservation option – where he was also a Visiting Associate Professor for over a decade; was a Historical Architect with the Illinois Historic Preservation Agency; is co-author of the IICLE Land Use Volume’s chapter on Historic Preservation Law; is a Board member and outside General Counsel for The Chicago-Midwest Chapter of the Institute of Classical Architecture and Classical America, and has been an attorney at two of Chicago’s largest law firms and was in-house counsel for one of the Southeast’s most prominent retail developers.

As a real estate development, construction and historic preservation attorney, he has represented clients in, among other things, obtaining and objecting to landmark designations, obtaining commercial historic tax credits and residential tax benefits for rehabilitation, compliance with state and federal historic preservation regulatory laws and in developing creative strategies for financing historic rehabilitation.

 

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