Land Use Prof Blog

Has Preservation Become a Dangerous Epidemic?

" . . . And is it destroying our cities?"  That's how this NY Times piece starts out, but it isn't an anti-HP property rights screed.  It's an exhibition review of "Cronocaos," at the New Museum: An Architect's Fear that Preservation Distorts.

That’s the conclusion you may come to after seeing “Cronocaos” at the New Museum. Organized by Rem Koolhaas and Shohei Shigematsu, a partner in Mr. Koolhaas’s Office for Metropolitan Architecture, the show draws on ideas that have been floating around architectural circles for several years now — particularly the view among many academics that preservation movements around the world, working hand in hand with governments and developers, have become a force for gentrification and social displacement, driving out the poor to make room for wealthy homeowners and tourists.

Mr. Koolhaas’s vision is even more apocalyptic. A skilled provocateur, he paints a picture of an army of well-meaning but clueless preservationists who, in their zeal to protect the world’s architectural legacies, end up debasing them by creating tasteful scenery for docile consumers while airbrushing out the most difficult chapters of history. The result, he argues, is a new form of historical amnesia, one that, perversely, only further alienates us from the past.

In New York, the exhibition is in an old restaurant supply store adjacent to the museum, with a line drawn down the middle; one side has been "renovated" and the other left "raw and untouched."

The result is startling. The uneven, patched-up floors and soiled walls of the old space look vibrant and alive; the new space looks sterile, an illustration of how even the minimalist renovations favored by art galleries today, which often are promoted as ways of preserving a building’s character, can cleanse it of historical meaning.

Interesting.  One other point the architect makes is that preservation can be selective in what periods and styles ought to be preserved:

This phenomenon is coupled with another disturbing trend: the selective demolition of the most socially ambitious architecture of the 1960s and ’70s — the last period when architects were able to do large-scale public work. That style has been condemned as a monstrous expression of Modernism. . . . To Mr. Koolhaas, these examples are part of a widespread campaign to stamp out an entire period in architectural history — a form of censorship that is driven by ideological as much as aesthetic concerns.

Matt Festa

The Demise of Historic Preservation?

As federal, state, and local governments face expanding budget crises, will historic preservation programs be one of the first items on the chopping block?  President Obama's February budget proposal would have eliminated Save America's Treasures and Preserve America, which support historic preservation.  Also in February, Governor Rick Perry of Texas proposed to eliminate funding for the Texas Historical Commission. The most important battles may be fought at the local level, however, where taxpayers are beginning to question the merits of tax breaks for property owners who preserve and maintain historic landmarks.  On April 12, three homeowners in Austin sued the city and its city council, arguing that the tax breaks that apply to more than 500 landmarks in the city violate state law.  In Detroit, historic buildings have crumbled as businesses have vacated structures, leaving them vulnerable to vandalism.  

The U.S. Supreme Court in Penn Central Transportation Company v. City of New York noted that "nationwide legislative efforts" toward historic preservation reflect a "widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all."  But as governments struggle to provide funding for other essentials, pieces of our past may be lost. 

Hannah Wiseman

Before Mountain Top Removal . . . Historic Designation Removal

NPR this evening featured a story about a dispute in West Virginia over the preservation of Blair Mountain, site of a 1921 miner uprising that claimed the lives of 100 men.  Massey Energy, owner of the mine in which 29 workers died nearby last April, is one of two companies that owns land adjacent to the site.  After being placed on the National Register of Historic Places, Blair Mountain's protection was removed by state officials thereby eliminating a barrier to the leveling of the site through mountain top removal of the coal within. 

Jim K.

Tax Breaks For Conservation Easements May Get Even Sweeter

As some of you may know, I am obsessed with intrigued by conservation easements. A strong motivator for some conservation easements (but not all or even necessarily most) is the availability of federal income tax deductions. A current bill in the senate would make such donations even more alluring. 

The Rural Heritage Conservation Extension Act of 2011 would allow landowners to deduct up to 50% of the adjusted gross income for such donations (right now it is only a mere 30%).

- Jessica Owley

Public Funding for Religious Landmark Upheld

U.S. District Judge Michael McCuskey (C.D. Ill.) has dismissed (Jurist story here) an Establishment Clause lawsuit challenging the constitutionality of the Illinois Commerce and Economic Opportunity Department's awarding of a restoration grant for the Bald Knob Cross of Peace (history webpage).  The plaintiff has declared his intention to appeal to the Seventh Circuit.

Jim K.

Housing Fellowship Program in New York

Here is an announcement that may be of interest to your students:

HPD-HDC Housing Fellows Program 2011-2013

The NYC Department of Housing Preservation and Development (HPD) is the nation’s largest municipal housing preservation and development agency. Its mission is to promote quality housing and viable neighborhoods for New Yorkers through education, outreach, loan and development programs and enforcement of housing quality standards.  It is responsible for implementing Mayor Bloomberg’s New Housing Marketplace Plan to finance the construction or preservation of 165,000 units of affordable housing by 2014.  Since the plan’s inception, a total of more than 108,600 affordable homes have been created or preserved.  For more information, please visit www.nyc.gov/hpd

The NYC Housing Development Corporation (HDC)provides a variety of financing programs for the creation and preservation of multi-family affordable housing throughout New York City.  In partnership with the NYC Department of Housing Preservation and Development, HDC works to implement Mayor Michael R. Bloomberg’s New Housing Marketplace Plan to finance the creation or preservation of 165,000 affordable housing units by the end of the 2014 fiscal year.  Since the plan launched in 2004, HDC has financed nearly 47,521 homes for low- , moderate- and middle-income New Yorkers.  The New York City Housing Development Corporation is rated AA by S&P and Aa2 by Moody’s.  For more information, please visit www.nychdc.com

The HPD-HDC Housing Fellows Program is designed to bring talented young professionals to HPD and HDC to expose them both to the inner workings of New York City government and to the field of affordable housing, with the goal of developing the next generation of affordable housing leadership.  The Fellowship provides a forum for the exchange of fresh and current ideas with those who shape the City’s housing policy through housing- and community development-related lectures, site visits, hands-on policy work and mentoring.

For more information: http://www.nyc.gov/html/hpd/html/jobseekers/fellowship.shtml

- Jessica Owley

Scouting, Walking, & Blogging New York

Among the many reasons that I am passionate about the subject of land use law, these three are among the most important: First, it is historical--studying land uses in our cities, towns, and rural areas gives us a sense of how we lived and how our places have changed over time.  Second, it is an essentially visual subject--to see the land and the built environment, whether in person or through pictures, is an important part of thinking about the effects of law and policy.  Third, and related to the first two, is that land use tells stories--whether over the course of time or within present-day issues and controversies, land use provides a narrative about how we live with each other in our communities and in society. 

That's a long-winded way of leading up to the observation that I really like two websites that I stumbled across recently and want to share with you.  Neither is written by a lawyer or a professor, but both involve the efforts of thoughtful and observant people to walk the streets, drive around the region, and post pictures, descriptions, and stories about the land, buildings, neighborhoods, and cities, both past and present.

The first is Scouting NY.  Its proprietor is a professional film scout, who describes his endeavor thusly:

I work as a film location scout in New York City. My day is spent combing the streets for interesting and unique locations for feature films. In my travels, I often stumble across some pretty incredible sights, most of which go ignored daily by thousands of New Yorkers in too much of a rush to pay attention.

As it happens, it's my job to pay attention, and I've started this blog to keep a record of what I see.

And we all benefit from that.  For an example, the current feature at the top of the blog is a collection of photos and descriptions of an abandoned mental asylum in Rockland County.  Creepy and fascinating. 

The second website I want to link to is Forgotten NY, run by graphic designer Kevin Walsh.  This one seems to be more focused on the city proper and its various neighborhoods.  The MO seems to be more about the street-level observation, by talking walks around the various parts of the city and reporting descriptions and photos, and giving us an insight in to the New York of the past through the evidence that still lingers today.  The current feature is "A Walk from South Williamsburg to Bedford-Stuyvesant," with copious photos.  This site looks like it's been around for about a decade and has a strong readership, but I never came across it until just recently.   

These two happen to be about New York.  I suspect that there are many more great blogs and websites out there, about New York and also about other places, which seek to illuminate, record, preserve, and tell the stories of our places, run by folks who are passionate about their communities past and present.  If you know of or would recommend any similar sites, I'd love to hear about them. 

Matt Festa

Carousels vs. Conservation in Brooklyn

In the small world department, at a wedding in December I met a student of Patricia Salkin's.   Andrew Stengel, a "non-traditional" second-year student at Albany Law School, is a member of the school’s Government Law Review.  Andrew has also served in a variety of positions in government and progressive advocacy organizations.  He worked as the political director for Harvey Weinstein, co-founder of Miramax Films, and he got his start in the administration of Gov. Mario Cuomo.

Andrew e-mailed me recently to let me know about his recent posts on the Government Law Review blog regarding a plan to put a carousel in an area of a park in Brooklyn that is meant to be protected in perpetuity as a natural and scenic area. Read his posts here and here.

Jamie Baker Roskie

UPDATE - on April 10, 2011 a federal judge in New York temporarily blocked the plan for a carousel. Stay tuned!

Dolan on the Salazar cross, historic preservation, and federal land transfers

Mary Jean Dolan (John Marshall-Chicago) has posted P.S. Untold Stories and the Cross National Monument.  We've mentioned the land use aspects of the Salazar decision before.  Dolan's abstract:

This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.” 

Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.

Matt Festa

Kratzke on Russia's New Land Code

William P. Kratzke (Memphis) has posted Russia's New Land Code: A Two Percent Solution, from the Minnesota Journal of International Law, Vol. 12.  The abstract:

On October 25, 2001, President Vladimir Putin signed the Land Code of the Russian Federation into law. Factions in the Duma extensively debated the proposed Land Code during the 1990s. The communists and agrarians essentially had argued for a throwback to the bad old days. The new law only applies to 2% of all the land in Russia – but a very valuable 2%, i.e., urban land and dacha property. The Code provides opportunities for great success or failure. It is partly a zoning law, an environmental law, an eminent domain law, a historical preservation law, a “Superfund” law, a private trespass law, and a nuisance law. The Code also reflects Russia’s traditional concern for agriculture. It establishes principles of federalism in land matters by delineating the respective regulatory authorities of the Russian Federation, the regions, and municipalities. The new Land Code recognizes principles of private ownership that include the right to sell land – necessary conditions to its efficient use. The Soviet system of state ownership rejected these principles. Much of the new Land Code does not create any new or unfamiliar principles. However, the very breadth of the Code should sweep within its scope, or sweep away, any number of federal, republic, and local laws. In subtle ways, the Code acknowledges various shortcomings of local government officials. This article provides a first look at the new Land Code, reviews its provisions, and raises some legal and practical questions that will need resolution.

Matt Festa

NY Times on DC Building Height Limits

The New York Times has an interesting article on the current discussion about the building height limits in Washington DC: In the Capital, Rethinking Old Limits on Buildings.  From the intro:

Its low-slung architecture is no accident. In 1910, Congress passed an act limiting the heights of buildings in the capital. The first residential skyscraper, the Cairo, had been built, and at 12 stories, it was higher than fire ladders could reach and scandalously out of sync with its smaller neighbors.

One hundred years later, most Washingtonians see the act as a good thing. Their sidewalks are shadowed by the outlines of trees, and the dome of the Capitol can be seen from most roof decks. The act, they say, preserves the unique nature of their city, whose landmarks draw millions of visitors each year.

Now, on the act’s centennial, a small tribe of developers, architects and urban experts are questioning the orthodoxy of the rule’s application. A modest change, they argue, would inject some vitality into the urban scene, would allow for greener construction, and could eventually deliver bigger tax receipts for the badly pinched city budget, currently in a hole of about $175 million.

But raising the limit is nothing short of sacrilege for preservationists here, who fear that any change, however slight, will open the door to more.

The DC building height limit controversy is a crystallization of many of the most significant and perplexing contemporary land use issues.  On the one hand, the height limit was one of the earliest and longest-standing land use regulations; it invokes the Enfant/Parisian heritage of the historical DC plan; and it has undoubtedly led to the very pleasant streetscapes and visuals in much of DC today.  On the other hand, it has mandated a density limit that has exacerbated the scarcity of urban land, inflated real estate prices, and helped cause the serious sprawl that has plagued the DC region over the past generation.  It is also an interesting debate, considering that many leading urban theorists call for greater density and vertical development, while in the nation's capital it will literally take an Act of Congress to move in that direction.  

Matt Festa

Fincham on The Distinctiveness of Property and Heritage

My colleague Derek Fincham (South Texas College of Law) has posted The Distinctiveness of Property and Heritage.  The abstract:

This piece takes up the competing concepts of property and heritage. Recent scholarship views property as a series of connections and obligations - rather than the traditional power to control, transfer or exclude. This new view of property may be safeguarding resources for future generations, but also imposes onerous obligations based on concerns over environmental protection, the protection of cultural resources, group rights, and even rights to digital property. Yet these obligations can also be imposed on subsequent generations, and certain obligations are imposed now based on the actions of past generations. 

This article examines the multigenerational aspects of property via a body of law which should be called heritage law. Heritage law now governs a wide range of activities some of which include: preventing destruction of works of art, preventing the theft of art and antiquities, preventing the illegal excavation of antiquities, preventing the mutilation and destruction of ancient structures and sites, creating a means for preserving sites and monuments, and even righting past wrongs. This piece justifies the new conceptualization in two ways. First, by showing that properly distinguishing property and heritage will allow us to better protect heritage with a richer, fuller understanding of the concept. And second by demonstrating how current definitions lead to imprecise analysis, which may produce troubling legal conclusions.

A growing body of heritage law has extended the limitations periods for certain cultural disputes. This has shifted the calculus for the long-term control of real, movable, and even digital property. This can be acutely seen with respect to cultural repatriation claims - specifically the claims of claimants to works of art forcibly taken during World War II; or the claims by Peru to certain anthropological objects now in the possession of Yale University which were removed by Hiram Bingham in the early part of the 20th Century.

Matt Festa

Fanizzo on Separation of Powers, Federal Land Management, and the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, from Environmental Law, Vol. 40, No. 3, 2010 .  The abstract:

When can a third party sue to force an executive agency to take an action in compliance with the direction of the President? In 2001, President Bill Clinton designated a half million acre national monument in southeastern Arizona and ordered the Bureau of Land Management to study whether cattle grazing would harm the significant historic and scientific sites he intended to protect. The Bureau allowed grazing to continue without doing the study. A non-profit conservation group, the Western Watersheds Project, sued the Bureau to implement Clinton’s orders. The group asked the court to exercise its authority under the Administrative Procedure Act to compel agency action unlawfully withheld and set aside arbitrary, capricious, and unlawful agency action. The Bureau responded that judicial review was not available to enforce its compliance. This article argues that courts should enforce the terms of such presidential proclamations when third parties sue the non-compliant agency. The intent of Congress in delegating to the President the ability to act quickly and reserve public lands for certain uses and not others and the broad deference given by the courts to the exercise of presidential discretion at the time of the designation support the application of this judicial review. Set against the backdrop of preserving our national cultural heritage, this case highlights the respective, and at times, overlapping roles of the executive, legislative, and judicial branch in federal land management.

Matt Festa

National Preservation Conference in Austin . . . and Buffalo

We mentioned that last week the National Trust for Historic Preservation had its annual meeting in the Weird City, Austin TX.  There are reports from the conference available on the Trust's website.  There is a video available of the opening plenary session, featuring National Trust President Stephanie Meeks, Laura Bush, and New Yorker architecture critic Paul Goldberger.  

Now the HP community can look forward to next year's National Preservation Conference in Buffalo!  If you're skeptical, check out this video, which correctly points out that Buffalo is a gem for architecture, late 19th/early 20th C. city planning and design, and a great site for discussing contemporary preservation issues with respect to older cities.  The video has gotten some local attention and has allegedly "gone viral" in Buffalo.

Matt Festa

2010 National Preservation Conference--Austin

Next week the National Trust for Historic Preservation holds its annual National Preservation Conference in the weird city, Austin, Texas, from Oct. 27-30.  Looks like a great event, with the program available online.  Featured speakers include New Yorker architecture critic Paul Goldberger and Interior Secretary Ken Salazar.  Here's the conference blurb:

Prepare yourself for a completely new National Preservation Conference experience! To complement our future-focused Austin theme, we’ve planned dynamic new programs that encourage conversation and interaction, and spotlight 21st-century preservation imperatives.

Join hundreds of grassroots volunteers, skilled professionals, and preservation experts exploring preservation today -- in urban and rural settings across the United States. We’ll focus on the conventional and the controversial issues that arise every day, and share the most effective tools and practices for fostering preservation in any community.

Can't make it out to Austin next week?  Don't worry, you can attend the conference virtually, with lots of web content and social media planned to be available.  Great idea.

Matt Festa 

DOJ Report on RLUIPA at 10 Years

The Department of Justice this week issued a report on its decade of enforcement actions since the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  From the press release:

RLUIPA protects places of worship and other religious uses of property from discrimination and unreasonably burdensome regulation in zoning and landmarking law, and also protects the religious freedom of persons confined to institutions such as prisons, mental health facilities and state-run nursing homes.   RLUIPA was enacted by both houses of Congress unanimously and signed into law on Sept. 22, 2000.   The law was a response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters.

 

The report illustrates that in the 10 years since its enactment, RLUIPA has aided thousands of individuals and institutions from a wide range of faith traditions through Department of Justice lawsuits, private lawsuits, and successful efforts to achieve voluntary compliance.

More information can be found in the full Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act.

Matt Festa

The Expanding Nature of Preservation

One of the interesting facts about historic resource preservation is that its boundaries are always growing.  But some communities have not embraced fully this facet of preservation, even as Modernist architecture matures and qualifies for official National Register listing on the federal level.  This is especially true in communties with rich stocks of 18th and 19th century architecture, where the preservation aesthetic tends to favor colonial, neo-colonial, and other revivalist styles.  New Canaan, Connecticut, only one hour north of New York City, is one community with a treasure trove of traditional as well as Modernist styles.  New Canaan, then, has felt this tension acutely, especially as property owners increase to subdivide large lots into smaller, developable parcels.

Many of New Canaan's modernist houses sit on these large lots.  Even though they make important statements about life in America at the time of their construction and teach important lessons about building form and architecture's relationship to function and nature, modernist houses fall--at the moment--outside of current mainstream style preferences.  Moreover, Modernist homes are usually modest in scale, and thus too small for a market that tends to prefer large, overscaled architecture of the post-Modernist sort.  Unless local preservation ordinances are calibrated to protect "newer" structures, as well as more traditional styles the public more typically associates with historic preservation, Modernist houses, such as those in New Canaan, will face increasing demolition pressure as demand for land outpaces a community's desire to preserve.  Click here to read more or see David Hay, Too New for New Canaan, Preservation 34 (Sept./Oct. 2010).

Will Cook, Charleston School of Law

Habdas on Polish Historical Immovables as Objects of Ownership

Magdalena Habdas (U. of Silesia Katowice) has posted My Home is My Castle--But is My Castle Truly Mine? Polish Historical Immovables as Objects of Ownership.  The abstract:

Cultural goods, in particular historical buildings and real estate, ‘demand’ a more complex understanding of ownership. Regardless of whether the owner is a private or a public entity, the need to protect these historical immovables in the interest of the society remains the same. There is no single category of owners, who will guarantee the proper protection and care of historical real estate. Private owners with no understanding of the limits of their right are just as undesirable as public owners (local authorities, the state), who have been known to utilize historical immovables for the benefit of their office, but without adequate protection or respect for the historical and artistic value. In all cases where ownership is affected by a public interest, the right is no longer purely private and therefore may be subject to restrictive regulation. However, common sense confirms that security of property and ownership is not in opposition to acknowledging a public element in these rights, particularly if their object is unique, as in the case of historical real estate.

Matt Festa

Fanizzo on Property Management Under the Antiquities Act

Kelly Y. Fanizzo (Temple) has posted Politics, Persuasion, and Enforcement: Property Management Under the Antiquities Act, from the 13th Annual US/ICOMOS International Symposium, Economic Benefits, Social Opportunities, and Challenges of Supporting Cultural Heritage for Sustainable Development, May 20-22, 2010 and adapted from her article Separation of Powers and Federal Land Management: Enforcing the Direction of the President under the Antiquities Act, ENVIRONMENTAL LAW, Volume 40, Issue 3.  The abstract:

Recognizing the tremendous loss to the nation that results from unchecked collecting and vandalism, Congress passed the Antiquities Act in 1906 to preserve threatened historic and scientific structures, ruins, and objects and protect against the loss of valuable scientific data. Granting considerable authority to the President, the Antiquities Act provides for the designation of national monuments through the withdrawal of public land. Over the past decades, numerous monument designations have raised questions about the limits of the President’s role in federal land management. But practical questions looming just beyond the President’s ability to designate a national monument only recently surfaced in a challenge to the Bureau of Land Management’s (BLM) grazing policies in the Sonoran Desert National Monument. This case before the Arizona District Court focused on the BLM’s management of the national monument, and not the process of its designation. This challenge sparked a discussion on how the protective intent of a monument proclamation can be best achieved. It asked what is the President’s authority to manage a national monument and when can a third party sue to force an executive agency to comply with the monument proclamation’s terms. This paper argues that consistent judicial review of an agency’s management of a monument can help national monument designations maintain their protective purpose. In the context of the Antiquities Act and more broadly, using this challenge as a case study allows us to consider what teeth are left in this law, now on the books for over a hundred years, to protect significant historic and scientific resources.

Matt Festa

Slide Show of Georgia Theater Rebuild

Previously I blogged about the historic Georgia Theater, almost destroyed by fire a year ago.  The Athens Banner-Herald now has a slide show showing reconstruction in the interior.  It's a pretty interesting pictorial history of the restoration of the building, which dates to the late 1800s.  The owner has struggled with financing and rebuilding, but there's so much sentiment to save the building that I think he'll ultimately be successful.  He's also got a great sense of humor - the marquee on the building currently reads "Men At Work."

Jamie Baker Roskie