Sunday, April 15th, 2007
What can seem less controversial than protecting our heritage and keeping our most important historic buildings from being lost? I certainly don’t disagree with the goal, but, as implemented today in America, historic districts represent government at its worst.
I try not to get too political in this blog, since I don’t believe my ideas are paritsan, though it is obvious I believe in certain principles such as the free market. What I consider perhaps the most important part of our political system is the idea of the rule of law. Now because of legal positivism and many other theories, this has become a rather meaningless term. So let me explain what it means to me. Fundamentally, the rule of law means that the power of government is executed only in accordance with general rules, that are published in advance, provide a sure guide to compliance, and apply to everyone equally. Contrast this with the rule of the commissar, where a government official has the arbitrary right to apply the standards he sees fit to a situation, leading to a situation where you don’t know if you are in compliance with the law or not until the commissar makes his ruling.
A great example of the rule of law is zoning. Whether you agree with zoning or not is another matter entirely, but at least it meets the test. If you own a parcel of land, it is easy to look up the zoning, where a set of clear rules exist which specify what uses are allowed on the land, what types of buildings, setbacks, etc. For uses that are compliant with the zoning of the parcel, going through the approval process is a purely administrative matter. The city can’t stop you from building something just because they don’t like it, and if they do, you can go to court and get an order to allow you to proceed. It is only when you want to do something outside of the zoning of the parcel, that is, when you are seeking a rezoning or a variance, that acceptance or denial becomes a more arbitrary matter, and that’s ok because what we are talking about is changing the law to accomodate the new use.
Contrast this with historic districts as they operate in many places and see the difference. In a historic district, there are no fixed guidelines on what is acceptable. There is no way to know in advance if plans will be approved or not. The sole judge of whether or not something in a historic district is permitted is a historic preservation board, which functions exactly as a board of commissars. Their unlimited, arbitrary personal judgement is the sole authority. In theory they have guidelines, but nothing forces them to be adhered to. Rulings of the historic boards can’t be appealed to the courts, usually only to the city council, making everything equivalent to seeking variance.
What’s more, these boards are typically appointed, not elected, and like many such special purpose boards tend to be populated with various people who have a stake in the game, such as historic preservation activists – exactly the sort of people who are the least likely to balance the competing interests of the community of the whole in favor of their own personal pet interest. Preservation interests would surely howl at a board filled with developers, but what we usually get instead is exactly the opposite situation.
Worst of all, and the reason I hate historic districts so much, is that these historic commissions are often little more than rubber stamps for the opinion of “neighborhood organizations”, themselves usually a small activist part of a community, totally self-selected and self-organizing, and opposed as a general rule to many classes of development otherwise permitted by zoning. It has long been every neighborhood organization’s dream to make its input on a project legally binding and to take complete and arbitrary control over all development in an area. Historic districts allow them to do this. It’s no surprise that it is generally neighborhood groups, not city officials or preservation experts, who push for these districts. Getting an official local historic district gives them a powerful lever to turn the opinions of a small neighborhood junta into law. In fact, that’s often even the stated rationale of creating the district in the first place. For example, when I lived in Evanston, Illinois, a new historic district was created on the northeastern lakefront by a group of people who admitted to the media their goal was to prevent encroachment by Northwestern University, which they felt was unfairly tax exempt.
It almost goes without saying that most of these neighborhoods aren’t even that historic. Getting on the National Register of Historic Places is shockingly easy. Pretty much anyplace that meets the technical requirements, such as being 50 years old, can get on it if the neighbors are motivated to try. National Register inclusion doesn’t come with much in the way of teeth, but it is easy to get and sounds impressive, and can be waved in front of the city council to get them to establish a local historic district that does have enforcement powers.
I was thinking about this a while ago while reading the March 2007 edition of the Urban Times, a monthly free newsletter covering downtown Indianapolis. A few of the articles really caught my eye. Page 12 had an article titled “Size of 500 Walnut project draws some criticism”. In it we are told by Indianapolis Historic Preservation Commission member Susan Williams, “I have some problems with its context and impact on the very few historic buildings in that block”. So right away we determine that a) it isn’t demolishing anything historic and b) there are very few historic buildings around. (So how did this become a historic district again? Hmmmmm……). The real reasons soon come out as neighbor Wayne Radford says, “I don’t think it is sensitive to the neighborhood’s needs.” And who determine’s what the neighborhood’s needs are? Well, none other than the Chatham Arch Neighborhood Association, whose vote the IHPC was eagerly awaiting. The results were 17 in favor, 20 opposed. So 37 people who just happen to live in the neighborhood get to decide what is historic or not. Do they even represent the community? Not really, they were just the local residents who happened to show up, by definition not representative of those who didn’t. Remembering that historic preservation is supposed to be about, well, history, it isn’t clear to me what makes 37 locals a better judge of that such that they are in a privileged position to give input. Would the building be magically ok if the vote went the other way? Do any of these people have any qualifications for judging appropriateness in a historic context? Naturally the IHPC backed the neighbors up. The developer asked for a continuance for further negotiations when it became clear that he didn’t have the votes. Of course, these negotiations are all about reducing the project size. The building height had already been scaled back and the number of units reduced from 16 to 12 already. This exposes the real rationale for being against the project as – and this is almost always the case – density, not history. The acting chair of the IHPC didn’t even attempt to disguise this by offering a historic rationle. He said, “Although everyone likes the design, it doens’t feel like the size and scale will fit on that lot.” I’m sure the neighbors, even though this is downtown for goodness sake, would prefer nothing but single family homes because that is all any neighborhood group anywhere ever wants.
This wasn’t the only article. It gets even better. A companion piece was labeled “Herron-Morton Place ‘doubles’ sent back to drawing board”. Herron-Morton is another downtown neighborhood. Rejecting the proposal, Susan Williams describes the designs as “monotonous”. I didn’t realize that a historic district was a neo-suburban anti-monotony ordinance, but I stand corrected. Incidentially, many of these districts are protected in the first place because they are monotonous, with an inventory of similar homes built about the same time. But I digress. She does go on to say furthermore that they were “out of context with the existing very interesting historic structures.” Ok, that’ s much better. And actually one reason I mention it is because it illustrates one time that the IHPC voted against the neighborhood association, which supported the project despite their general policy that “vacant lots should be redeveloped as single-family homes”. Apparently the IHPC feels even more strongly about single-family only than the neighbors do. IHPC member Alan Lobley said he could not support a two-family project. A city administrator had to remind him that land use decisions are not the province of the IHPC and that they should focus on “legitimate historic preservation issues” and that the lots were zoned to allow multi-family housing. His reminder apparently fell on deaf ears. Being a commissar means never having to say you’re sorry.
Here’s my personal favorite. An article on page 38 of the very same issue (“Neigborhood supports unique building” – even the title tells you who is in charge) takes the cake. The IHPC has no problem with a “contemporary style” commercial structure, though they want the developer to make a few tweaks. Why? Well, the St. Josephy Historic Neighborhood Association supported it, that’s why. So tell me this, if you are allowing contemporary design structures in a historic district, what’s the purpose of the district anyway? If you aren’t regulating architectural style, what the heck are you regulating? This makes a mockery of the entire process.
Anyone visiting downtown Indianapolis would not think of it as a unique mecca of historic architecture, but you wouldn’t know this from the large number of historic districts, which continue to escalate as new neighborhood groups realize that they too can get in on the action of having a city commission spinkle holy water and turn their word into law. Several new districts such as Cottage Home are in the works. It won’t be long before all of downtown is a historic district. This is already causing extreme red tape and raising the costs of doing business downtown. (This is one reason why most of the new housing there is so expensive – the neighbors probably also like that btw – keeps the “riff raff” out). The IHPC process is acting like a boat anchor on the city. What’s more, it is actually promoting poor quality development in many cases because what the neighbors really want is low density. A project can actually look terrible – such as a recent new one story concrete block storefront on Mass Ave – as long as it is low density. Even downtown it is difficult to get decent density, which is why street life in most parts of downtown Indy suffers and there isn’t the retail development people would like to see. That takes people, and none of the neighbors their want any places for those people to live. The IHPC has converted significant tracts of downtown Indy into low-density single family neighborhoods not much different from any small town in Indiana.
As I said earlier, few of these districts are truly historic. It is ironic in the extreme to discover the Monument Circle was not a historic district, but St. Joseph is. The criteria seems to be whoever has motivated neighbors can get a district. And why not? Every time a new one is created it makes it more difficult to tell the next group No. Sure, there are a few truly historic districts like the North Merdian corridor and Lockerbie Square, but these are few and far between. Literally any inner city neighborhood of Indianapolis would be historic by the standards used to create most of the existing districts. This history will no doubt be discovered the minute enough yuppies move in and renovate a critical mass of homes.
I think there’s a better way. It starts with apply significant skepticism to any district which would give out powers that violate the rule of law. Beyond that, a few concrete examples:
- Stop taking National Register inclusion into account when creating local historic districts. Rather, the only time one should get “extra credit” for national recognition is for National Historic Landmarks, which are much tougher to get.
- Far better than landmarking districts is landmarking individual historic structures. This is the approach taken in many cities, and provided the right state legislation is in place, it is the best way to go. In the case of Indianapolis, yet another large historic district is being established in the core of downtown that is really to protect one structure, the endangered Illinois Building. This is the wrong way to do it.
- Stop giving neighborhood associations preferrential input into the process. If public input is to be solicited, it should be broad based community input. The focus on should be on having qualified experts judge the historical impact, not busybody neighbors who are concerned with land use much more so than history.
- Avoid stacking commissions with activists. Anyone with a connection to the neighborhood in question should be forced to recuse themselves from the proceedings.
- Try to draft guidelines that are as clear and prescriptive as possible, as close to zoning as you can make it. For example, if a particular district is known for a particular style of construction, mandate that instead of just putting in a the purely arbitrary judgement of the commissars.
- Make historic preservation decisions appealable to the courts with a clear mandate to overturn those that are manifestly about land use, not history. Judges would have this power anyway, should they wish to take it on themselves.
This probably isn’t an exhaustive list, but should be enough to think about the types of reforms that need to be implemented to prevent abusive historic district commissariates like the IHPC from taking arbitrary control over land use in large tracts of our cities.