SUPPLEMENTAL STATEMENT TO TESTIMONY
I currently own and reside in the Historic Green Springs District located in Louisa County, Virginia, approximately 12 miles to the east of Charlottesville. I have lived there since July 1, 2002. My property, 275 acres known as Eastern View Farm, is considered a contributing property to a district-wide listing to the National Register, which is administered by the National Park Service. It is not separately listed. This is an important distinction. The simple farm house has, even in its decrepitude, considerable charm that is why I bought it but it is of a design and type common to Central Virginia and has no historical or architectural significance. On the application by the District to the National Register, under section 8 which is supposed to detail what is significant about the house, it is entirely silent about my house, whereas other houses in the district are described there in considerable detail. All that the National Register application contains about my house is a brief, somewhat inaccurate description under section 7. It is my understanding that the standard practice of the National Register, when it evaluates proposed renovations and changes to a house, is to rely solely on section 8. In my case, the Park Service treated every item of the description given in section 7 as it were in section 8.
None of this would matter to me except the Park Service also
held a purported conservation easement on my property. The purported
easement was used by the Park Service to apply otherwise non-compulsory
standards provided in the Secretary of Interior's Standards for
Rehabilitation as if binding, and to do so in a punitive manner,
despite the fact that no tax credits or deductions were ever received
by an owner of Eastern View, either at the time of the grant of
the alleged easement, or thereafter. In applying the Standards
in a compulsory manner to me, the Park Service has maintained,
in effect, that they possess the sole authority for interpreting
these standards. Further, the Park Service has made no provision
for an appeal. They have consistently maintained throughout my
dealings with them that they are willing to continue discussions
and entertain revised plans, but there is nothing specific holding
them to a timetable or to adhere to any set of procedures. It
is because these standards were meant to be elective that they
are written loosely. A property owner could simply opt out if
The easement document itself did not support the use of these
Standards. It could not have, as the alleged easement was executed
in 1973, a number of years before there were any Secretary's Standards
in existence. The purported easement provided several vague standards
of its own, which might be summarized as changes and additions
to the house must be in the style of the existing structure. This
standard is at loggerheads with the overriding approach of the
Secretary's Standards, which prescribe that anything new be done
in a manner that is distinguishable from the existing structure,
so that a passerby might not be confused about the historic evolution
of the house. Whereas the easement document explicitly allows
additions, the Secretary's Standards discourage them.
The house, at the time I bought it, was in wreck condition. I bought the house with the idea of renovating it. I had successfully renovated a "pre-war" New York City apartment, circa 1928, also in wreck condition, a few years before, and I looked forward to tackling the same sort of project in a rural setting. I could not imagine that anyone would be against the kind of sensitive renovation I would do. I would add that the house itself sits centered on the property's 275 acres and is a half-mile from the nearest road frontage, which is wooded. Only from short stretches of the road, approximately three quarters of a mile from the house, can it be glimpsed. Trees around the house obstruct much of that view during the summer months. There is nothing in the easement document itself, by the way, which precludes me from planting trees to block the view entirely.
Several substantial changes were made to the house from the time of the listing on the National Register of the District. None of the changes were made with the approval of the Park Service, nor did the Park Service ever object to these changes, which my FOIA request showed they had knowledge of None of the changes to the house were ones that in any way enhanced the house's architectural historic integrity, such as it was. The house when I bought it was at best marginally habitable. While I did move in and rough it, many people would have regarded it as unlivable. Among the problems I encountered in 2002, and this is not an exhaustive list, were a front porch falling off the house, another porch whose roof was structurally unsound; rotting siding, long past its useful life; inadequate insulation; many damaged structural members, with such things as the base sill upon which the house rests being badly water and termite damaged; and water damage on the interior walls throughout the house from rain seeping through rotten, broken windows. One could see light from outside coming through the exterior walls, and vines growing through them. To give you an idea, in the first winter, my propane heat bill was well in excess of $1,000 per month for a house that was 3,500 square feet. The bill was at least four times what most would have considered a normal amount, and for that, there were rooms that on cold days were completely unusable. The house did not retain heat. Water pipes, even those housed in interior walls, would freeze. I might have well been living in a tent!
In September 2003, the eye of Hurricane Isabel passed over my house. I and two others worked nonstop from 3 P.M. until 11 P.M. sopping up water penetrating the walls and ceiling. When the storm passed, it left behind additional water damage and serious toxic mold throughout the house. Patches of thick black mold were growing on the interior walls of four rooms.
Before I go into the tortuous relationship I had with the Park Service starting shortly after I bought the property, a little background on the Green Springs Historic District is in order. In the early 1970s, a proposed state prison facility disturbed some of the local homeowners, and they struck upon the idea of using rural conservation as a means to defeat it. They created a nonprofit, Historic Green Springs, Inc. ("HGSI"), to hold a number of conservation or preservation easements, which a federal court actually found were dissimilar from one another, noting that they "failed to prohibit in all cases subdivision and development of the land."(2) Moreover, the easements were rife with ambiguities and poor draftsmanship. Each of these property owners was then a member of this organization. Shortly thereafter, there was a takeover of the organization by a few members who then expelled anyone who opposed their agenda.
HGSI soon after its creation applied to be listed on the National Register as a historic district. At the time the Park Service designated the district on the National Register, the Department of Interior ("DOI") accepted an assignment of the easements from HGSI. DOI placed the administration of these easements with the Shenandoah National Park, which itself is about 80 miles from the district. The federal government owns no land in or by the District. The purported easement document itself states "nothing herein shall be construed to convey a right to the public of access or use of the properties."
The way the Park Service conducted its inquiry into the District during the 1970s sparked litigation the District has been an engine for litigation ever since. In 1980, there was a key decision, Historic Green Springs, Inc. v. Bergland, in which the designation of the District on the National Register was ruled invalid. Congress, by fiat, shortly afterwards restored the designation.
The alleged easement covering my property has architectural and subdivision restrictions. It is the architectural restrictions that precipitated a dispute between the NPS and me. Currently, my easement is the subject of litigation in the federal district court and the Supreme Court of Virginia. The Supreme Court heard arguments on April 20 as to whether the restrictions are cognizable and therefore even valid under the Virginia common law. I have attached a copy of the full court record to date, including the briefs prepared for the Supreme Court.
Even if the easement is found to be cognizable under Virginia law, there are serious issues whether the Park Service has the statutory authority to hold it. The Historic Sites Act of 1935 is the basis for the Park Service to hold any easement, but that act, in section 1, declares its purpose as being to "preserve for public use historic sites" and "building," and the alleged easement actually explicitly states there is no public access to the property. No where in Title 16 is the Secretary of Interior, who accepted the assignment of the easements, given the authority to place such easements in the Shenandoah National Park. Further, none of the Shenandoah National Park sections of Title 16 allow it to hold such easements, which are manifestly not adjoining the park. Even if the park has the right, it committed a number of serious violations of administrative law. One of the most egregious was involving HGSI in the review process on my property. After HGSI assigned most of the alleged easements it held in 1978, it continued to have a tight relationship which the Park Service. From 1980 through 1991, the Park Service and HGSI actually had a memorandum of understanding by which HGSI had a role in monitoring the supposed easements. The memorandum was not renewed thereafter because of complaints from many property owners and what the Park Service itself called HGSI's "closely-held agenda." By the time I moved into the community, however, the Park Service was turning to HGSI for virtually every decision relating to the area. Yet as a Freedom of Information Act investigation of mine revealed, the Park Service never did anything to audit and review HGSI, its legitimacy, et. al. The Park Service actually admitted that they had no procedures to monitor such a "partnership." Never did the Park Service offer any justification for its ties with HGSI. HGSI is clearly not a community group, in the sense of an organization representing all the affected property owners. I was never invited into the organization, and as I indicated above, many property owners were expelled some years ago. A glance at its charter discloses that its membership need not even live in the area. Nonetheless, the Park Service has called HGSI its "Partner" on many occasions.
Once I moved into my house, I started to plan how to renovate it. The Park Service came to visit my property unannounced several times, all in violation of the easement. The president of HGSI, Ms. Ely, told me what I could and could not do without my house, all before I had formulated plans, and I would add, her opinion was unsolicited. I became disturbed by the role of Ms. Ely, as I saw no justification for her participation, a lack of accountability by her or her organization, a lack of legitimate expertise in architecture or architectural history, among other reasons. Alas, my concerns were unavailing with the Park Service. I complained to my Congressman, Eric Cantor, who initiated the first of several investigations. The Park Service response in all the investigations was to evade or deny all the charges, despite my having provided considerable documentary evidence of my concerns. However, the Park Service made an implied promise after the first investigation that they would no longer involve HGSI and Ms. Ely in the review process of my home. In my first FOIA search of Park Service documents I discovered that in fact they not only went right on involving Ms. Ely, but they were even communicating every step of the response they were formulating to Congressman Cantor's inquiry, a document in which they had implied they would not be consulting her.
After I hired an architect in Fall, 2002, he drew up plans which were submitted to the Park Service in February, 2003. Those plans, and several revisions afterwards, were rejected on the basis of the Secretary's Standards. Sometimes the reason was that the change or addition was too similar in style to the existing house. Sometimes the reason was the opposite: it was not enough alike. The Park Service could seem to be expressing approval for an element of the plan, but they never gave a go ahead on anything. Throughout their correspondence they spoke of a willingness to continue a dialogue, but they offered, and had, no official appeal process, as is a basic administrative law protection to a citizen in a governmental discretionary review. Their own literature directed at local architectural review boards says that providing for an appeal is an essential part of a legitimate program. Especially frustrating for me in this review was how they would base their pronouncements on erroneous or speculative beliefs about my house. An example was how they rejected plans for me to enlarge basement windows in the front of the house. The existing windows were small transom windows. The Park Service insisted that these were original to the house. Anyone versed in architectural history would have known that in fact the current basement was probably once a ground floor with more graceful windows. But even if you did not have this base of knowledge, a quick glance from the outside showed the outline of the former windows, which had been covered with concrete!
The Park Service did make one adjustment after I complained about HGSI; they told my architect that they routinely involve the Virginia Department of Historic Resources. In my FOIA search, I found no evidence that the Park Service had ever done this before, except in regard to the processing of tax credits. The Park Service treated this involvement as a review under Section 106 of the Historic Preservation Act, notwithstanding that Section 106 clearly did not apply. The purpose of this section was to protect property owners from deleterious effects of federal action. The section applies when there is a federal undertaking. This requires either an expenditure of federal funds or the issuance of a license. Neither were pertinent to the aesthetic review of my house. A classic federal undertaking is the building of an interstate highway. If such a road were to affect a National Register property, then Section 106 would call for a review on how such an undertaking would impact the "resource," or the historic buildings covered on the National Register. The idea was to deter heedless negative developments, whatever they might be, involving the federal government, without a full weighing of the potential consequences. That highway might still be built, as planned, but only after there was a full analysis of its impact on a historic property. Basically, the scheme was to ensure that one arm of the federal government wouldn't be working at cross-purposes with another, that historic preservation was a worthy objective and should not be forgotten. To regard the review of my plans as a Section 106 undertaking was to invert the law's purpose and instead of protecting the property owner against a federal intrusion, to treat the property owner as the intrusion.
Even if the delegation to the Virginia Department had legitimacy, and their obstinate use of the Secretary's Standards justified, the Park Service tainted the objectivity of such review by basically telling the Virginia Department the conclusions it wished to have validated. (This is revealed in the correspondence between the Park Service and the Virginia Department.) It is my understanding that the Virginia Department receives funding from the Park Service, a relationship that might undermine its independence.
By early fall, the Virginia Department was apparently on the verge of approving of my plans. Suddenly, the Park Service changed their tune, minimizing the role of the Virginia Department, consulting with other parts of the Park Service to get the negative opinion they were seeking, and invoking a new standard, NPS 28, which is intended for Park Service owned or managed properties, and so clearly irrelevant to my home, which was neither. This NPS 28, needless to say, had no basis in the alleged easement document, was different from the Secretary's Standards, and until then, had never been mentioned, in a notorious flouting of administrative law.
I mention that I made a FOIA requests. In these requests the NPS improperly withheld information and possibly documents too. For example, they declined to provide documents on the basis of attorney client privilege, refusing to disclose even the names of the parties so involved. Even if the document were privileged, the Freedom of Information Act clearly requires that such names are not protected information.
Finally, it is my belief that the Park Service has acted against me on numerous occasions with a retaliatory motive retaliation for my letters to my Congressman, retaliation for questioning how they conduct their business. I believe a close reading of their correspondence and emails strongly suggest this. In addition, someone I know, without my permission, actually called a senior person at the Park Service about my case. This individual supposedly ranted on about how they were going to get Blackman.
W. Brown Morton, currently a professor at Mary Washington College
in Virginia and a drafter of the Secretary's Standards, has recently
stated on numerous occasions that the Standards were meant to
be a flexible tool and at most a starting point for negotiation
with the property owner.
(2) Historic Green Springs, Inc. v Bergland, 497 F.Supp. 839, 843 (1980).