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Enforcement Methods for Local Historic Preservation Ordinances 

12-09-2015 17:35

While many communities still battle to establish some form of preservation legislation, other locales are working to enhance their enforcement of existing laws. By doing so they hope to further strengthen their protection over their community’s already-designated historic resources.

Historic preservation has been declared a worthwhile cause that is in the best interest of society. Over the past half century, historic preservation ordinances have been upheld not only by the U.S. Supreme Court, but also by the growing numbers of citizens who relentlessly lobby on behalf of historic preservation goals. Now firmly established, historic preservation laws are an integral part of land-use regulation. But to ensure that local preservation laws are respected and upheld, they must be steadfastly enforced.

This article, with a focus on practices in New York City and Washington, D.C., examines some ways to enforce preservation ordinances that are not commonly practiced yet, but that have the potential to be very effective.

Empower Citizen Watchdogs

Local preservation authorities may vary in size and specific duties but they are almost universally under-funded. The majority of their meager budgets are allocated for permit review and surveying, leaving little to no funds for enforcement. One way to greatly supplement the enforcement capability of a local preservation authority is to involve the public. Accordingly, an effective system must be in place to allow citizens to file complaints of suspected unpermitted work.

In New York City, for example, complaints can be filed with the Landmarks Preservation Commission (LPC) by calling 311, a hotline for all city-related inquiries and complaints, or by completing and mailing in a downloadable form. To engage the public more effectively, such systems could be improved to enable citizens to file their complaints electronically, via either e-mail or a web-based interface. This could also allow complainants to track the progress of their complaint, further involving them in local preservation efforts.

E-mail and web-based complaint-filing should be viewed as a minimum standard. In an article entitled “Phone + GPS + Camera = Revolution” published in Governing Magazine (March, 2010), Stephen Goldsmith, director of the Innovations in American Government Program at the Harvard Kennedy School and now deputy mayor for operations in New York City, explains the great potential of smartphones to help governments serve citizens. Goldsmith describes how Boston “deployed a free iPhone app that allows citizens to use their phone’s built-in camera and GPS system to take a photo of urban blights such as potholes, graffiti, and trash, and report them directly to City Hall.” Goldsmith states, “Instead of inching its way through City Hall, critical information heads straight [from the citizen with a smartphone] to a public works crew.” Goldsmith continues, “The free app…means Boston instantly has more eyes to spot and report problems.” There is no reason why this type of technology could not be applied to the enforcement of preservation ordinances.

Whatever complaint-filing methods are in place in your particular city or town, they must be adequately publicized. A vigilant public is only able to fully complement the preservation agency if citizens know what they can and should do. A well-publicized, clear, easily utilized, and technologically up-to-date complaint-filing system provides the means for harnessing public support for preservation.

Maintain a Street Presence

It is also imperative that the regulatory preservation body maintain a street presence. Staff members on street patrol can detect permit violations, deter people from failing to obtain needed permits for planned work, and educate property owners about permitting requirements.

In Washington, D.C., a proactive street presence is maintained and an unofficial monitoring policy is in place. Nancy Metzger of the Capitol Hill Restoration Society, a local preservation advocacy organization, said that there is a definite awareness of preservation ordinance enforcement in D.C. She attributes this, in part, to the fact that D.C. Historic Preservation Office (HPO) Enforcement Officer Toni Cherry wears a badge that identifies her as a “visible policing authority.” Cherry has developed a reputation as a vanguard of preservation law there, badge in hand and siren on dashboard.

It would seem beneficial for both compliance and awareness that all preservation agencies actively maintain a presence in the field, including using badges or uniforms to underscore their authority.

Publicize Violations

Another way to increase awareness and deter violations of preservation regulations is to bring adverse attention to violators.

Washington, D.C.’s HPO, for example, posts Stop Work Orders printed in bright colors in highly visible locations on a property that is being altered without the necessary permit(s). In New York City, the LPC issues Stop Work Orders that have the same legal authority as those in D.C., but these are not posted on the building in violation. This difference is key. Though they may carry the same legal power, the Stop Work Order of D.C. also stigmatizes the property owner as a violator—the scarlet letter of preservation.

Adverse publicity not only helps to curb non-compliance, it can also influence the public’s perception of the preservation agency as a serious enforcer of the law. This has the potential to foster compliance for a relatively low cost.

Hold Property Owners and Practitioners Responsible

But there will always be non-compliant property owners. Many preservation commissions around the country are able to penalize these property owners by issuing violation notices and imposing fines that accumulate on a daily basis. Penalizing the property owner, however, may not be the most effective course of action.

There are other culpable individuals involved who should be held responsible. For example, in New York State, licensed contractors are legally required to notify their clients of any necessary permits. While New York City has yet to figure out how to definitively hold contractors responsible for violating the Landmarks Law, the preservation authority of Aspen, Colo., offers a promising approach to this dilemma.

Aspen’s Historic Preservation Commission (HPC) requires a contractor or superintendent to hold a specialty license for work being done on an individually designated property or on a property within a historic district. A specialty license can be earned by passing a test administered by the HPC. Contractors who have earned this license cannot claim ignorance of what is required of them by the law. Even more important, “We can revoke the specialty license and their general contractor’s license,” explained Aspen Historic Preservation Officer Amy Guthrie, “which is a big disincentive for them to do something wrong.”

“The historic preservation licensing program has made a major difference in enforcement,” Guthrie said. It has also provided for an increase in communication between HPC staff and contractors, and subsequently improved the latter’s understanding of the permitting process.

Other local preservation commissions could greatly benefit from adopting similar licensing policies.

Use a Negotiation Process

Violation notices and fines are not always effective. Therefore, it is imperative that preservation commissions have in-house counsel to negotiate with non-compliant property owners. When lawyers initiate a negotiation, it sends a strong message to the property owners in violation that legal action may result from their lack of cooperation.

John Weiss, Esq., deputy counsel for the New York City LPC, indicated that although legal action is reserved for the most serious instances of violation, negotiation and the mere threat of legal action can be an effective deterrent.

Weiss also noted that litigation is avoided at almost all costs and only initiated once negotiations have reached an impasse. In other words, if a property owner in violation willingly responds to the requests of the regulator and cooperates, litigation would seem to be both an unnecessary and potentially damaging course of action to the regulator’s resources and its relationship with the regulated. Weiss also noted that “the commission would prefer that the money the owner would have to spend on litigation be spent on saving the buildings.”

While neither the most transparent method of enforcement nor the most binding, negotiation should not be underestimated. Of course, when negotiation fails, formal legal action is necessary and should be pursued.

Pursue Demolition-by-Neglect Litigation

Civil litigation has become an increasingly common and effective means to enforce the Landmarks Law in New York City. Demolition-by-neglect is the most common type of civil suit brought by the LPC against a property owner who fails to maintain his or her property in a state of good repair. Weiss noted that at “any given time the LPC has 45 buildings in various stages of the demolition-by-neglect process.”

In what is perhaps the best-known demolition-by-neglect case in New York City, the court held that the defendant had to restore the property, known historically as the Skidmore House, to a state of good repair. In this case, the property owner, who also owned adjacent land, intended to amass a larger development site by neglecting the landmark property. The ruling, a huge victory for the LPC, quashed this devious plan. This decision is an empowering precedent that should be used to the advantage of preservation agencies around the country in enforcing their landmarks laws.

The LPC has filed several other demolition-by-neglect suits that proved successful. These suits have resulted in court orders to restore the structures at issue to a state of good repair as well as settlements paid to the City of New York of up to $1.1 million. New York City’s vigorous upholding of the Landmarks Law through demolition-by-neglect litigation should serve as an example for local commissions everywhere.

Seek Injunctions

Preservation authorities can also seek injunctions from the courts that require a property owner or operator to undo an unlawful condition or cease work on any illegal improvements. For example, in 2000, Sushi Samba 7, a restaurant in the Greenwich Village Historic District of Manhattan, applied for a permit from the New York City LPC to construct an addition atop its one-story building. A permit was issued but Sushi Samba 7 did not follow its terms and indeed far exceeded them, to its economic benefit.

The LPC took administrative enforcement action, which was ignored, and the restaurant attempted to have its as-built addition legalized. The commission denied the application, leading the restaurant to sue the LPC. Realizing it was dealing with a hostile property owner, the LPC sought injunctive relief to obligate the restaurant to remove the unapproved addition while also seeking an award of fines that were accruing at a rate of $5,000 per day. In an article published in The Villager, a neighborhood newspaper, Mark Silberman, Esq., general counsel for the LPC, indicated that the collection of fines was intended to offset the profits made by the restaurant in its use of the additional, illegal commercial space. The court ordered the restaurant to comply with the LPC’s demands. Sushi Samba 7 did not and filed an appeal instead.

Eventually, Sushi Samba 7 signed an agreement with the LPC to build an approved rooftop addition in place of its illegal addition and pay a settlement of $500,000 to the City of New York. LPC Chairman Robert Tierney stated, “Our aggressive enforcement of the law has enabled us to preserve the character of many of the city’s buildings and neighborhoods. Our settlement with Sushi Samba 7 underscores that commitment, and should serve as a deterrent tothose who would knowingly and intentionally violate the Landmarks Law.” Clearly the pursuit of injunctive relief can be a strategic course of enforcement, especially against recalcitrant property owners.

Explore the “Private Attorney General” Option

New York City’s use of its courts to enforce historic preservation is laudable but many locales do not have the resources to act accordingly.

The use of the powers of the Private Attorney General offers a legal mechanism that has been employed to enforce other types of laws, such as anti-trust laws, and has the potential to be effective in enforcing preservation legislation. The Private Attorney General, neither a government employee nor a specific individual, is any member of the public statutorily enabled to have standing in court and authorized to enforce the law.

The Private Attorney General is an independent citizen “who is understood to be suing on behalf of the public, but doing so on his own initiative, with no accountability to the government or the electorate,” as explained by J.A. Rabkin in an article published in Law and Contemporary Problems (Winter 1998). Environmental laws are enforceable by the Private Attorney General and, according to Rabkin, this method of enforcement has proven to be a “powerful engine of public policy” in that realm.

So could historic preservation ordinances be enforced by the Private Attorney General? While some concerns do exist, the Private Attorney General option holds promise. It ultimately empowers the public to enforce its historic preservation ordinance while reducing the cost of enforcement imposed on already financially strained regulatory agencies. While no locale has yet written a Private Attorney General option into its preservation ordinance, this tool of enforcement has potential and merits further research.

Supplement Enforcement Resources

Many of the practices presented here would require additional funds largely absent from the budgets of the cash-strapped local preservation agency. If the budgets of local historic preservation commissions were increased sufficiently to allow for the hiring of additional legal and administrative staff, the protections specified in their preservation statute would be more easily, frequently, and qualitatively provided.

In Washington, D.C., the HPO’s budget may be supplemented by the Historic Landmark-District Protection Fund (HLDP Fund). The HLDP Fund contains amounts appropriated to it, donations or the money resultant from the sale of donated real property, interest earned on its balance, and fines collected as a result of HPO-issued infractions. As a permanent, accumulative financial resource dedicated to supporting the purposes of D.C.’s local preservation legislation, the HLDP Fund, in concept, permits the HPO to rely less on its appropriated budget and have added resources that can be put toward enforcement work. This dedicated fund is reminiscent of the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as the Superfund, used by the federal Environmental Protection Agency to pay for cleanup projects. A fund like this could be established to supplement the budget of any local preservation commission.

Determine Your Best Approach

Using a combination of the practices presented in this article will produce a multi-layered enforcement system. While their implementation will undoubtedly improve the protection of resources already designated, perhaps more importantly, future designations will be made more meaningful. Of course, these are general guidelines; before any of these practices or methods are adopted, your community must carefully assess its current enforcement system, determine where there are gaps or deficiencies, then decide on its priorities and best approach.

Publication Date: Winter 2011


Author(s):Benjamin Baccash

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