P.O. Box 75, Stony Creek, New York 12878 - 518/696-5748
Dear Chairman Nunes:
National Historic Districts are an important concern to private property owners. The Property Rights Foundation of America receives many requests for help to deal with strictures on private property and requirements for expensive studies related to historic and archeological preservation. However, for fear of retribution from the government officials with whom they have to deal, these property owners are afraid to "go public" with their stories. As a result, and most regrettably, I cannot refer a single property owner complaining of these egregious examples of bureaucratic intrusion on private property rights to testify before your subcommittee.
A large proportion of the historic and archeological preservation issues that come to our organization deal with New York State, where the state agency that handles designations of National Historic Districts is the New York State Office of Parks, Recreation and Historic Preservation, which I'll refer to as NYS Parks. One point that stands out is the dishonesty of NYS Parks by misleading the public about the enforcement potential as a result of a designation of a site or historic district, whether state of federal. Typical of the false disclaimers by NYS Parks is that on their web site (downloaded copy enclosed):
During the designation process, NYS Parks has been successful in quieting public concerns about the impact of historic registration on private property owners. Afterwards, when a proposed specific project is up for government review, the enforcement takes place behind the scenes, when NYS Parks steps in, and where the local permitting process, the New York State Department of Environmental Conservation permitting process, and the like must comply with the State Environmental Quality Review Act (SEQRA). Typical of various states' "mini-NEPAs," SEQRA requires that any "state action" (lower case) consider the impact of the permit on significant historic and archeological sites, notably, those on the state or National Register. State "action" under this law is not restricted to the construction of state, federal, or local government projects such as highways, prisons, and the like, but includes state actions that are simply decision-making processes-most commonly, the permit process. Consideration of the impact of the project on a designated historic site can be very expensive, involving the hiring of experts for extensive professional studies of the proposal and contrived "alternatives." The permit may only be issued after this expense is augmented by "mitigations," such as expensive changes to the project plan to make it have what the NYS Parks considers to be less "impact" on a registered site.
The Glimmerglass Heritage National Register Historic District
The Glimmerglass Heritage National Register Historic District in Otsego County, New York, illustrates the deception on the part of advocates involved in the designation process and the forceful participation of NYS Parks in the local permit process once the registered district is in place.
Because several property owners from the area of the proposed 15,000-acre Glimmerglass district contacted the Property Rights Foundation of America when the designation was being debated during the spring of 1989, and because PRFA was contacted afterwards by a severely impacted property owner, I'm able to use the example of the Glimmerglass district to relate the problems inherent in the overall designation process and how it pans out. However, my remarks will not reveal the identity of the property owner who sought help from PRFA.
Early that year, a lively debate was taking place around Cooperstown, New York, where the Glimmerglass district was being proposed for an area around Otsego Lake. On March 26, 1999, the Cooperstown newspaper, The Freeman's Journal (copy enclosed), reported, "Officials with the New York State Historic Preservation Office hope to schedule a meeting in May at the Otsego County Courthouse to address public concerns about the proposed Glimmerglass Heritage National Register District."
"'We want to use the courthouse because it seems we'll need a large space. We've had a lot of comments,' said Kathleen LaFrank, the SHPO's historic preservation program analyst," according to the Journal.
"LaFrank said she is surprised by the number of people opposing the district," reported the Journal. The newspaper noted her remark that "some people seem not to believe that being in a district on the National Register of Historic Places will not compromise their property rights."
At the request of several people in the Glimmerglass area, I sent a letter to the editor of The Freeman's Journal, which was published on May 7 (copy attached). I explained how inclusion in the National Historic Register results in regulation of private property because of SEQRA being applied during the local building permit process. "SEQRA," I pointed out, "is one of the most powerful and often used environmental laws in this state."
In addition, I pointed out that the problems for the property owner do not necessarily stop with difficulties dealing with government authorities. "The owner may also be denied a mortgage if a bank judges that the use of the property will be restricted as a result of the historic registration."
I asked, "Why did the officials representing the State of New York deceive the public by not revealing SEQRA's enforcement link to designation to the National Register?"
The Journal published a reply by Robert J. Poulson, Jr., Project Chairman, Cooperstown, a few days later (copy attached). He pronounced that my letter was entirely wrong and was "alarmist." He alleged that the designation protects property rights. He said that designation would protect property owners from the actions of federal or state agencies, using a highway widening as an example, because they would have go through "not only the SEQRA process, but a special historic preservation review that will at least require the agency to mitigate the negative impact on your property."
The Cooperstown Crier later reported on meetings that NYS Parks held about the proposed district. Their article quoted Bob Kuhn, Historic Preservation Program Director of the NYS Parks, focusing on the millions of dollars in grants and tax breaks that designation makes available.
"'Designation does not place local requirements on you. It does not mean that because of designation that some higher level of review is required,'" said Kuhn, according to the Crier. "'You can paint your house lime green, you can add a modern addition, you can burn it to the ground. The state and federal government can't stop you.'"
The state review panel approved the Glimmerglass Heritage National Register Historic District on June 18, 1999, later to be followed by the NYS Parks commissioner's approval and referral to the National Park Service. On the occasion of the approval, The Daily Star on June 22 reported that Robert Kuhn, the NYS Park's historic coordinator, had explained at a hearing in February that "(H)is department only reviews publicly funded projects and will not be overseeing how homeowners and others take care of private property." (copy attached)
After the Glimmerglass designation was in place, NYS Parks was never held accountable for its deception. At the same time, it used the heavy weight of its office to enforce the designation.
On November 21, 2003, I received an e-mail from a private property owner within the Glimmerglass district.
"Well, it finally happened. The Glimmerglass designation
is even MORE than SHPO said it would be!" the property owner
"After 9 months of pushing and pulling the town through SEQRA, and getting them ready to issue a negative declaration, lo and behold, SHPO says my plans are not in keeping with the character of the district. They were ready to issue a letter of resolution indicating adverse impact before we even had a chance to present our side "
In later correspondence, he declared, " they out right lied to us!"
"I remember getting the information and saying to my wife that this could be trouble," he continued. "Then I read the articles and felt assured that this designation would only be the cause of positive results. No one, me included, understood that SHPO basically controls the permitting of state agencies. But then again, why would ordinary folks have cause to understand this. The issue was brought up by a few of the better informed, but those concerns were 'allayed' by Ms. LaFrank and Mr. Kuhn. I have found in the newspaper archives several quotes that say just so! And now when we refer back to these quotes I am told that I am taking them out of context. Interestingly, the NYSPARKS website blatantly lies as well, saying once again that historical designation will not place any controls on the private property owner: 'you can alter, dispose (etc).' Well it seems that no we can't!"
The story of deception during the Glimmerglass Heritage National Register Historic District illustrates the need for reform.
Spin-off Effects of Regulatory Impact of National Historic Sites
This hearing represents a greatly needed public forum about the regulatory impact of listing in the National Historic Register. Another area of potential impact is on the availability of mortgage listing. The inflexibility inherent in designation has been known to dampen the interest of lenders.
In September 1996, I stayed at the Rochell Haus, a gracious old farmhouse with a view of Seneca Lake, in Hector, New York, that had been converted to a bed and breakfast. Susan Rochell, who with her husband Henry owned the Rochell Haus, told me of their travail obtaining a mortgage to do alterations to the interior and rear of the house to convert it for their new business. The banks declined to give them a mortgage for their alterations to make the circa 1830s house into a bed and breakfast on the grounds that the building was on the National Historic Register. Finally, they approached their Congressman for help. The only solution, which was then in his hands, Mrs. Rochell told me, was to have the house deleted from the National Historic Register. The Congressman used his influence to have the historic registration for the house finally removed, and the bank gave the mortgage to the Rochells.
No property should be included within a National Historic District or Site or for listing for eligibility for registration within a District or as a Site without the written consent of the property owner.
Every property owner within a proposed National Historic District or Site or listing for eligibility as such, or within a State Historic District being developed with the intent of inclusion in the National Register, should be clearly notified of the enforcement consequences under both state and federal law of the listing on the register or placement on the eligible list.
Pressure to Increase the Number of National Historic Sites
A troubling new development related to the National Trust for Historic Preservation could spell pressure to increase the number of listings, whether justified or not, and have impact on private property rights. According to Eric Gibson, in an article entitled "Trust Us: This is How Travel Gets 'Historic,'" on April 15 in The Wall Street Journal (copy attached). The National Trust for Historic Preservation is reacting to potential Congressional cutback in their funding by replacing the congressional appropriation with full reliance on private funding. The organization intends to "expand the number and diversity of historic places associated with the Trust." Hotels will be an important source of new historic sites, with sites such as Boston's Omni Parker House where JFK proposed to Jackie mentioned as an example.
Gibson fears trivializing the historic designation, but, for
property owners, a more practical concern could arise. Historic
districts might proliferate, with many property owners caught
inside who would opt out if allowed. Or historic sites might
be chosen at the behest of localities or neighbors who could
benefit from the listing, but the property owner would not be
allowed to decline to be listed.
The Congress should deliberate about the possible conflict with the Congressional Charter of the National Trust for Historic Preservation if listing on the National Historic Register is commercialized.
Thank you for convening the National Parks Subcommittee hearing about issues related to listing on the National Historic Register.