Living history: how homeowners in a new local historic district negotiate their legal obligations.

• Author: Heuer, Tad

INTRODUCTION I. HISTORIC PRESERVATION, LOCAL HISTORIC DISTRICTS, AND CITY POINT A. The Historic Preservation Movement and the Rise of the Local Historic District B. Historic Preservation in New Haven C. The City Point Neighborhood as a Case Study D. The Impetus for the City Point Local Historic District II. THE EMPIRICAL EVIDENCE: OWNER PERCEPTIONS OF THE LHD A. Overall Owner Perceptions B. The Influence of Information C. How Groups Differ in Their Views--"Middle-Class" Versus "Working-Class" Streets III. THE EMPIRICAL EVIDENCE: MANAGING AND ENFORCING LHD OBLIGATIONS A. Managing One's Own LHD Obligations: First-Party Enforcement B. Community Standards and LHD Regulations: Second-Party Enforcement 1. Neighborhood Relations in City Point 2. The Informal Violation Enforcement Formula C. The Role of the Historic District Commission: Third-Party Enforcement 1. Participant Costs in Time and Resources 2. The Absence of Clearly Delineated Safe Harbors 3. The Failure To Demonstrate Responsiveness to Local Needs IV. DISCUSSION AND POLICY RECOMMENDATIONS A. Has the City Point LHD Been a Success? B. Solving the Dilemma of the "Working-Class" Streets C. Do Policy Instruments Matter? D. Improving the HDC Process and Structure E. Recognizing "First-Generation" Issues CONCLUSION APPENDIX INTRODUCTION

Historic preservation laws matter. When Tom Ahern sought to reduce his heating bills by replacing the wooden windows on his turn-of-the-century Colonial Revival with vinyl windows in March 2004, he was merely following in the footsteps of countless other frugal New England homeowners. Yet while Ahem may have been a typical homeowner, his home--a triple-decker in New Haven's historically working-class City Point neighborhood--was not a typical home. Nearly four years earlier, in October 2000, City Point homeowners voted overwhelmingly to approve an amendment to the New Haven zoning bylaws designating City Point as a local historic district (LHD). Designed to "preserve and protect the community's historic architecture and the quality of life of the neighborhood," (1) the LHD ordinance required that almost any proposed external alteration of a structure in the LHD receive prior approval from the New Haven Historic District Commission (HDC). Ahern decided not to seek this approval, and when the Historic District Commission challenged his vinyl windows, he decided to fight back. In the end, Ahem negotiated a compromise: he could keep the side and rear vinyl windows, as long as he reinstalled the wooden front windows and replaced the asphalt shingling on the front of his house with wooden clapboard. Both sides claimed victory.

At first glance this incident may appear to be no more than a garden-variety zoning dispute. Yet upon closer inspection, it illustrates two new challenges facing historic preservation at the start of the twenty-first century. The first challenge is how best to address the shift from historic preservation as an individual activity to historic preservation as a more communal activity. Throughout the nineteenth and early twentieth centuries, historic preservation in the United States was a largely individualized affair, unencumbered by the need for either consensus or negotiation. Individual owners maintained individual properties, while the government used taxpayer money to maintain obvious national landmarks. (2) This began to change in the 1950s and 1960s, as communities began to realize that they were losing their architectural heritage because of individual or governmental decisions that frequently subordinated historic preservation to desires for immediate profit or immediate regeneration. (3) As the historic preservation movement has slowly expanded its emphasis from preserving grand homes and famous public buildings to preserving the vernacular history of everyday American life, historic preservation--once an individual activity--has become an increasingly communal one. (4)

The second challenge is how best to address the shift in the focus of historic preservation from landmark buildings to vernacular neighborhoods. The increased emphasis over the past four decades on the creation of historic districts has meant that ordinary homeowners have become more involved in a debate about the value of historic preservation that previously concerned only a small band of preservation-minded civic activists. While some of the first historic preservation efforts in the United States came in the context of historic districts, (5) not until the United States Conference of Mayors argued for the broader use of LHDs in 1966 did many local preservationists consider expanding their primary emphasis beyond protecting landmark buildings. (6) The increased use of LHDs--which differ from National Register Historic Districts (NRHDs) in that they carry legal obligations as well as symbolic value--has meant that law and preservation have become more intertwined at the local level than ever before. This growth has been steady and significant: in 1957 there were only 11 communities with local preservation ordinances, whereas by 1975 there were 421 such communities, and by 1983 there were between 800 and 1000. (7) By 2002, there were over 2300 communities with local preservation ordinances, (8) and interest in creating new local preservation ordinances continues to grow. While the first legal battles about preservation were fought in the courts, resulting in landmark legal opinions such as Berman v. Parker (9) and Penn Central Transportation Co. v. City of New York, (10) today the legal issues facing preservation are less high-profile, yet no less important. Moreover, the historic preservation movement has begun to push beyond its traditional focus on high architecture and Anglo-American history, (11) and it is increasingly at the local level--in places like the "Little Manila" of Stockton, California; (12) the experimental Depression-era community of Arthurdale, West Virginia; (13) and the "iconic cultural landscape" of Hartington, Nebraska (population 1600) (14)--where the future of the historic preservation movement is developing.

Despite this increased emphasis on using LHDs to preserve otherwise ordinary neighborhoods, (15) almost all of the existing literature concerning LHDs addresses the "how to" rather than the "why do." Although there is substantial information available on how to repair an old home, (16) there is a dearth of widely disseminated empirical insight into why homeowners create LHDs, whether homeowners' views about LHDs change over time, and whether local historic preservation laws are effective in practice. (17) This Note addresses that gap in the legal and policy literature, exploring these emerging local issues in the context of how owner-occupiers in New Haven's City Point Local Historic District view, negotiate, and manage their obligations under a recently approved LHD ordinance.

Part I provides a brief background of the historic preservation movement in the United States, explains the reasons for the focus on New Haven's City Point LHD, and offers a short historical sketch of City Point itself. Parts II and III draw upon original empirical research to determine the extent to which legal policy instruments matter in the historic preservation context--examining the owners' perceptions of their obligations under LHD ordinances, the effectiveness of LHD enforcement mechanisms, and the extent to which owners manage their LHD obligations without resorting to the mechanisms provided by law. Part IV summarizes the main research findings and offers several policy recommendations, describing how this research might assist New Haven as well as other American cities.

1. HISTORIC PRESERVATION, LOCAL HISTORIC DISTRICTS, AND CITY POINT

   1. The Historic Preservation Movement and the Rise of the Local Historic District

      The historic preservation movement in the United States was born in ad hoc campaigns during the late nineteenth and early twentieth centuries to preserve specific prominent sites or buildings that were under immediate threat of demolition or development. (Famous examples included George Washington's Mount Vernon (18) and the Gettysburg battlefield. (19)) This approach began to change during the late 1950s and early 1960s, however, as federal urban renewal programs encouraged the mass clearance of "blighted" areas such as southwest Washington, D.C., (20) Boston's West End, (21) and New Haven's Oak Street. (22) Historic preservationists responded to these wholesale demolition programs by pushing for passage of legislation like the National Historic Preservation Act of 1966 (23) and by creating standing organizations dedicated to preserving the historic built environment. Yet in their early years, these organizations, like the preceding campaigns, focused largely on the preservation of significant public and quasi-public buildings located in or near renewal zones, and the tools at their disposal were largely extralegal--consisting predominantly of persuasion, publicity campaigns, small "encouragement" grants, and the "plaquing" of historic buildings. (24)

      With the passage of the National Historic Preservation Act and the subsequent Supreme Court decision in Penn Central, (25) historic preservationists gradually acquired legal tools for their arsenal. These tools now range from demolition delay ordinances, LHDs, and the granting of preservation easements, to preservation tax credits, facade improvement programs, and adaptive reuse policies. (26) Despite the availability of these tools, the historic preservation movement has traditionally relied upon voluntary compliance and affirmative incentives instead of legally binding mandates. For example, in the early years of the historic preservation movement, legal solutions like "historic districting" tended to be employed only in small areas of undeniable historical or architectural importance (such as downtown Charleston, South Carolina, or New Orleans's...