National Historic Register Challenges Private Property Rights
By Carol W. LaGrasse
Reprinted from the New York Property Rights Clearinghouse, Vol. 9, No. 2 (Spring 2005)
The word "challenge" derives from the Latin calumnia, meaning trickery, from calvi, to deceive. Keeping in mind the negative nuance to this word's origin, historic districts and sites placed on the National Register are indeed a challenge to private property rights. Formal registration of a property is purportedly all innocence during the proposal stage, with well-meaning recognition and voluntary protection, coupled with the benefits of grants and tax breaks. But once formally instituted, the "recognition" becomes a heavy burden to property owners. Recognition suddenly becomes regulation.
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, property owners are invariably afraid to "go public." As a result, the little news that is published about the intrusion of historic preservation on private property rights is only the tip of the iceberg.
The New York State Office of Parks, Recreation and Historic Preservation acts as the State's go-between to the National Historic Register. The state agency is dishonest to the public about the enforcement potential as a result of a designation, whether state of federal. Typical of the false disclaimers by NYS Parks is this misleading statement downloaded from their web site:
"There are no restrictions placed on private owners of registered properties. Private property owners may sell, alter or dispose of their property as they wish, although an owner who demolishes a certified registered property may not deduct the costs of demolition from his/her federal income tax."
During the designation process, NYS Parks has been successful in quieting public concerns about the negative impact of historic registration. Afterwards, when a proposed specific project is up for government review, the agency steps in. This intrusion on private property rights is possible because local permitting and permit review by the State Department of Environmental Conservation 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-makingmost commonly, the permit process. Consideration of the impact of the project on a designated historic site can be very expensive, involving high-paid experts for elaborate professional studies of the proposal and contrived "alternatives." The permit may only be issued after this expense is augmented by "mitigations," such as costly changes to the project to make it have what the NYS Parks considers to be less "impact" on a registered site.
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.
Several property owners from the area of the proposed 15,000-acre district contacted the Property Rights Foundation of during the spring of 1989. Early that year, a lively debate was taking place in the Cooperstown region, where the district was being proposed for an area around Otsego Lake. In March, the Cooperstown newspaper, The Freeman's Journal," 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 wrote a letter to the editor that was published in May in The Freeman's Journal. 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 the Cooperstown project chairman, Robert J. Poulson, Jr., a few days later. He pronounced my letter "wrong" and "alarmist." The designation protects property rights, he said, because the actions of federal or state agencies, such as a highway widening, 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."
After the Glimmerglass designation was in place, NYS Parks was never held accountable for its deception. It then 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 declared.
He wrote that he had spent in excess of $100,000 on engineering and architectural development plans to construct his buildings on commercial property on the north end of Otsego Lake, replacing ones that were so dilapidated that the county codes officer said that they were condemnable.
"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 outright 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 district debate illustrates the need for reform. On April 21, U.S. Representative Devin Nunes (R Cal.) held a hearing of the National Parks Subcommittee on issues related to the National Historic Register. At a minimum, no property should be included within a Registered Historic District or Site without the written consent of the owner. Every property owner within a proposed Historic District or Site should be clearly notified of the enforcement consequences of the listing. Because listing for eligibility often triggers infringements on private property rights, these protections should also apply to eligibility listing.
One spin-off effect of potential impact by listing on the Historic Register is the reduced availability of mortgages. 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 dating from the 1830's 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 property, 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 on the grounds that the building was on the National Historic Register. As a last resort, they asked their Congressman to help. The Congressman used his influence to have the historic registration for the house removed, Mrs. Rochell told me, and a bank finally gave them the mortgage.
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,'" during April in The Wall Street Journal, the National Trust for Historic Preservation is reacting to a potential cutback in its federal funding by seeking full 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. As an example, Gibson mentioned Boston's Omni Parker House where JFK proposed to Jackie.
Gibson fears trivializing the historic designation, but, for property owners, a more practical concern could arise. With historic districts proliferating for commercial reasons, many property owners might be caught inside. Without the consent of all property owners, increased numbers of historic sites might be chosen at the behest of localities or neighbors who could afford to donate to the Trust and could benefit from the listing.
Before problems for property owners are allowed to continue and possibly grow worse, honest information on regulatory impact and mandated property owner consent for Historic Register listing are crucial.