Because many of historic resources are dispersed within rural or suburban settings it is not feasible for these municipalities to include many historic resources within defined historic district boundaries. Subsequently, municipalities have inventoried their historic resources and created historic resource lists.
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Background
The Pennsylvania land use state enabling law is titled the Municipalities Planning Code. The Code authorizes the enactment of zoning ordinances which municipalities can use to protect historic resources within their municipal boundaries. Section 603 (g) (2) states that, "zoning ordinances shall provide for the protection of natural and historic features and resources." This can be interpreted as mandated. In Section 603 (b) (2) it further states that, “Zoning ordinances…. may permit, prohibit, regulate, restrict and determine: size, height, bulk, location, erection, construction, repair, maintenance, alteration, razing, removal, and use of structures."
In 1961, the Borough of Lititz, Lancaster County was the first borough to include historic preservation regulations in its zoning ordinance to protect a historic district. In fact, the wording in Lititz’s regulations parallels those of the Pennsylvania Historic District Act. And in 1985, West Whiteland Township, Chester County was the first township in Pennsylvania to include historic preservation regulations in its zoning ordinance with the tiered classification system. Subsequently, many municipalities in Pennsylvania, especially townships, have included preservation regulations in their zoning and subdivision ordinances, although no one knows for certain how many have done so. A guesstimate is between 75 to 150 municipalities—mostly townships.
Generally, a minimum of three classes have been devised. Class I or A includes resources that are either eligible to or listed in the National Register of Historic Places; Class II or B are resources that are only historically or architecturally significant to the municipality; and Class III or C are resources that are fifty years and older but have not retained their architectural integrity. There are variations on these classification criteria.
According to Carole Wilson, the former historic preservation specialist for the Lancaster County Planning Commission, local governments in Lancaster may include in their Class I the local historical or architectural significance (such as the house where the founder of the town lived “using a parallel criteria as the National Register but with a local focus.”
Some municipalities due to the anti-regulatory sentiments of private property rights advocates invite voluntary submission of historic resources to be included on a municipality’s historic resource list—townships of Lower Merion, Radnor and Tredyffrin have taken that route. This seems contrary to the regulatory nature of zoning ordinances which classifies land uses and imposes them on property owners whether owners are agreeable or not.
The decision of the Pennsylvania Supreme Court United Artists’ Theater Circuit, Inc., v. City of Philadelphia, Philadelphia Historical Commission (1991) should provide some guidance as regards the legality of designating private property as historic resources. The court stated that, “Analysis of our case law and related law from other jurisdictions, the texts of the constitutional provisions and policy concerns of this Commonwealth compels us to conclude that the designation of a privately owned building is not a taking under the Constitution of this Commonwealth.”
A problem of the classification system is that it may exclude historically and architectural significant properties that for various reasons may not have been determined eligible to the National Register. Another problem is the fact that some properties may have been determined eligible to the National Register several years ago but, over time have lost architectural integrity and under present assessment by the Pennsylvania Historical and Museum Commission these formerly eligible resources may no longer be determined eligible to the National Register.
A further problem with the classification system is that there may be finite amount of eligible National Register properties within a municipality thereby relegating non eligible historic properties to an “inferior” status with the likelihood of these properties judged as expendable and less worthy of preservation.
Carole Wilson has noted that municipalities have the option of having different regulations for Class I and Class II properties if they so choose, “but” she says, “there is no requirement to do so and the same regulations may apply to both classes. In that event, the classification serves only to recognize the level of significance.” *
If that is the case why bother with a classification system? If we consider how properties are reviewed by Boards of Historical Architectural Review (as authorized by the Pennsylvania Historic District Act) each property within the boundaries of the historic district, and the work proposed for it is reviewed on a case by case basis. Some buildings may have been individually listed or determined eligible to the National Register, others may not, some may reflect a specific architectural style while others are vernacular in style, but all come under the same regulatory review process regarding their alteration, restoration, demolition or razing. In traditional “pyramidal” zoning, properties are segregated according to their uses and unless “grandfathered” are required to conform to regulations specific to those uses. A residential property remains residential, as do industrial, institutional, commercial properties, and so on. The historical classification system of historic properties is not so easily classified due to their unique attributes, in addition to the various problems referred to above.
Each project is considered as to the impact it will have on the property itself, its neighbors, and the district as whole. Marshalling historical and architectural facts, referencing relevant treatments and design criteria aids in the HARB’s deliberations and its recommendations and avoids the accusation of arbitrary or capricious decisions.
In fact Carole Wilson makes the best argument for jettisoning the classification system she says “If all these [ordinary] buildings were torn down leaving only the Class 1 buildings, there would no longer be a community [sense of place] because these resources constitute the bulk of the community.” Is it not another way of saying that the historic environment would no longer exist?
Several municipalities justify the classification of historic properties as a means of providing zoning incentives to property owners depending on the property’s classification. Certain zoning incentives may waive setbacks for new additions or new construction of an accessory building, or waive the requirement of off street parking. In order to preserve historic mansions, formerly the dwelling of single families multi unit conversions may be allowed. There may also be incentives for non residential uses in residential areas which would otherwise be prohibited such as a bed and breakfast establishments, daycare centers or adaptive reuse of abandoned historic uses as churches into art galleries, professional offices, community centers, and even dwellings.
The classification system is considered by some property owners as potentially arbitrary as there is an element of subjectivity to the classification system. If a property has not been submitted to the Pennsylvania Historical and Museum Commission for a determination of eligibility it automatically relegates the property to a Class II or Class III status. In regards to zoning incentives a Class I may be provided with incentives that a Class II designation may not receive, on the other hand a Class I is burdened with stricter regulations and the property owner can be denied a demolition permit whereas a Class II owner may simply be required to undergo a 90 day demolition delay.
There are situations whereby properties designated as Class II should have been classified as Class I, an example of this situation occurred in the Township of Lower Merion, Montgomery County which resulted in the demolition of La Ronda, a Spanish Revival Style mansion—a rare example of that style in the region. The disputes that have occurred among property owners and local government officials regarding the historic resource classification system raise concern.
Class III properties are often defined as those which are 50 years and older but over time have lost their character defining features through inappropriate renovations or deferred maintenance, or are undistinguished architecturally or historically and these properties may be considered expendable. Some municipalities have additional classifications with dubious if not confusing designations.
The question has often been raised as to whether there are financial incentives associated with the historic resource classification system for owners of historic properties? I am unaware of any, other than indirectly by providing via special exceptions modification to use, area, and bulk regulations which may have financial benefits and result in the preservation of historic properties and their immediate environment. Many local governments do provide financial incentives but, not as far as I am aware, tied to the tiered classification of historic properties in zoning ordinances. See sidebar.
Other reasons some townships are partial to the classification system is that they believe it reduces the administrative review process in that only certain types of properties are included in the municipality’s classification system excluding a large portion of properties from historic preservation regulations. In addition, by reviewing a smaller portion of properties the municipality reasons that this diminishes the incidence of legal challenges and controversies.
Political consideration come into play regarding the classification system in that certain properties are simply excluded from the review process, as when inclusion on the historic resource list is voluntary in contrast to regulations in historic district ordinances (authorized by the PA Historic District Act) wherein all buildings and structures are included in the review process. The idea is that by excluding properties there is likely to be less opposition to the passage of historic preservation zoning regulations.
The Township of Lower Merion demonstrates that using the classification system does not prevent controversy or potential legal challenges as was the case with the La Ronda mansion. In certain communities the political clout of individual property owners threatening litigious action against the municipality sways some members of governing bodies from listing historic resources on their historic resource list.
Are there more advantages than disadvantages to the classification system of historic resources? To find an answer it might be useful to assess the review process as it is administered by historic district ordinances (authorized by the PA Historic District Act, or by home rule municipalities such as Philadelphia and Pittsburgh) wherein all properties in historic districts are reviewed either administratively by the codes department or planning officials, or by the historical commissions or Boards of Historical Architectural Review (HARB), but certainly not excluded from the regulatory arm of the municipality.
Since no property is exempt (ideally) from the review process in a historic district regulated by a historic district ordinance authorized by the PA Historic District Act it prevents an accusation that the onus of regulations is unjustly borne by some rather than by all property owners.
Summary of the pros and cons of the historic resource classification system:
Pros:
• Zoning incentives for various classes i.e. parking, uses, set backs, other
• Potentially fewer controversies regarding demolition denials or approvals due to fewer Class I properties
• Historic district boundaries are impractical hence a historic resource classification list is the only option
• Limiting review of properties according to a classification system relieves administrative oversight of the preponderance of properties
Cons:
• Criteria for classification systems may be open to challenges due to their subjectivity (arbitrariness)
• Reliance on National Register and determination of eligibility to Class I limits the extent of historic resources for highest protection
• Eligibility to the National Register may change over time and thus be challenged by a property owner and/or the SHPO/PHMC
• Voluntary compliance by property owners regarding the listing of their historic properties on the municipality’s historic resource list is contrary to the Municipalities Planning Code’s regulations in the traditional classification of uses
• Reluctance of property owners to have their properties classified as a Class I because it limits their ability to demolish their historic buildings or structures nullifies the preservation of a municipality’s historic preservation goals.
• Disputes by property owners who believe that their properties should be in the Class I category rather than in the Class II category
• Difficulty in drafting criteria for each classes of historic resources rather than one criteria for all historic resources
• Classification system places exclusive importance on national standards rather than on local standards of historical significance
• Ethnic and racial bias may enter in excluding properties on local historic resource lists
• Classification systems as applied in historic districts will, over time, destroy the “tout ensemble” of the district
Historic preservation planning
Had many of those well intentioned municipalities addressed historic preservation issues by initiating a historic preservation plan first rather than launching itself into the regulation phase it might have weighed the advantages and disadvantages of the classification of historic properties. It is typical of municipalities to respond to preservation advocates and their concerns over the imminent demolition of historic resources by drafting regulations before the goal of those regulations are clear but questions like the following probably should have been asked and answered:
• What is a historic resource?
• What kinds of resources do we have?
• Where are those resources located?
• Why do we want to preserve them?
• How should they be preserved?
• Who is responsible to preserve them?
• How much regulation do we want to impose?
• What are the trends that have the potential to threaten these historic resources?
• What incentives can we provide to help preserve these resources?
• Do we have the administrative ability to impose regulations?
• Do we have qualified personnel to administer a preservation program?
• What are our ultimate aims?
• Do the municipalities, the businesses and other sectors have contrary goals vis-à-vis historic preservation?
• Is there public support for these preservation initiatives?
• What needs to be done to gain public support?
• Are there regulations in the municipal code that are contrary to the preservation goals of the municipality?
To regulate or not to regulate
Typically municipalities respond to preservation advocates concerns over the potential or imminent demolition of a historic resource by too often rushing into the regulatory phase rather than the planning phase of the process. The result is that there is no consensus and clarity as to how these regulations are to be interpreted or administered.
Historic district guidelines are essential (although rarely referred to by historical commissions or HARBs), but guidelines cannot substitute for a clear vision as to what the ordinance was enacted to achieve. Most historic preservation ordinances do include a purpose section, but these tend to resemble a list of goals of equal value canceling each other out.
One of the important questions that should be posed is what the expectations are with the passage of historic preservation regulations. Members of governing bodies, municipal staff, historical commissions and HARBs may have their unique perspective or interpretation of the purpose of the ordinance if they have even given any serious thought to it.
For example, a commission member may be thinking in terms of preservation in curatorial terms rather than preserving neighborhood character, another member may, in her turn, consider the importance of adaptive use and economic viability as upper most in importance. A borough council may weigh the advantages of a new commercial enterprise which requires demolition of a historic building and each body has an independent vision as to what is a “good” for the community. These disparate views confuse the public and permit approval or disapproval may appear as arbitrary and ultimately sabotage the preservation effort.
Historic preservation regulations out of conformance with the MPC
One persistent and annoying oversight in the Municipalities Planning Code is the lack of authority of a municipality to create a historical commission. This should be addressed and membership requirements should be considered similar to but not exclusively like those required in the PA Historic District Act.
Along with the establishment of a historical commission and its duties and responsibilities is the issue of the timeline for review and deliberation by the historical commission of historic preservation projects within the limits stipulated in the MPC for the issuance of zoning permits, including appeals. The zoning permit is issued by right whenan applicant meets the requirements of the zoning ordinance.
If the zoning officer determines that the proposed work application does not meet the standard and guidelines, or ordinance criteria he will require that the historical commission review the project and either make its recommendations to him/her or the regulations may require a conditional use application which devolves the decision to the governing body or require the applicant to apply for a special exception permit which relegates the decision to the zoning hearing board. The inclusion of a historical commission to review projects affecting historic resources on the municipality’s historic resource list often extends the allotted time for review beyond the mandated time limits as required by the MPC placing the municipality in a legally vulnerable position.
Another problem is when a municipality excludes the special exception or conditional use zoning alternatives when a preservation project does not meet the “by right” criteria of the zoning ordinance and simply relies on the historical commission to recommend the issuance of the permit either directly to the zoning officer or to the governing body. How does the municipality’s solicitor justify or explain this apparent anomaly? It would be helpful to those of us who are not lawyers to know.
These ostensible MPC infractions are due to the lack of direction in the MPC as it relates to the regulation and protection of historic resources. Article VI, Section 603 (g) (2) “Zoning ordinances shall provide for protection of natural and historic features and resources.” Provides the authority some would say mandate for protection of historic resources, but leaves the details to municipalities to resolve with the result that that it leaves them vulnerable to legal challenges.
I have reviewed countless historic preservation zoning ordinance amendments that appear in part to be in violation of the MPC. Oddly, as of this writing I am not aware of any litigation against municipalities that regulate and protect their historic resources in their zoning ordinances. Several legal challenges have been filed since the 1970s against municipalities who administer historic district ordinances authorized by the Historic District Act, Act 167 of 1961 as amended. The cases have the gamut from Court of Common Pleas, Commonwealth Court, and Pennsylvania Supreme Court, all these adjudicated cases and decisions have been in favor of the municipalities’ police powers to protect and regulate historic resources within their jurisdiction. Perhaps this impressive record substantiates the constitutionality of regulating historic resources as legitimate as long as:
• The means is in the interest of the general public and requires governmental action,
• The means are necessary to effectuate that purpose, and lastly,
• The means cannot be unduly oppressive upon the property holder, considering the economic impact of the regulation, and the extent to which the government physically intrudes upon the property*.
In conclusion, when historic preservation zoning regulations conform to the three prong test above substantive due process issues appear to be adequately addressed, the concern is in the due process aspect in that deviations from the requirements of the MPC may be the devil in the details that place municipalities in harms way.
*Refer to the U.S Supreme Court decision in Penn Central Transportation Co. v. New York City. 438 U.S.(1978).
* The Historic Resource Zoning Classification Dilemma: A Rebuttal By Carole Wilson 12/2009
Funding Historic Preservation
Financial incentives for historic preservation projects do exist. An example is through the Community Development Block Grant (CDBG) Entitlement Communities Program which provides annual grants on a formula basis to eligible municipalities called “entitlement communities.” Such funds have been used for façade improvement programs for residential as well as commercial or mixed use properties in historic districts. The City of Reading provides façade improvement grants to eligible residential property owners in its Centre Park Historic District.
A different example with the same purpose is the Meadows Racetrack and Casino gaming fund which has funded all kinds of projects including $51,700 toward the Downtown Charleroi Façade Improvement Project. The Pennsylvania Historical and Museum Commission Keystone Grant continues to be active, but is presently limited to project planning rather than for brick and mortar activities. The Department of Community and Economic Development provides several grants and loan programs which municipalities can apply for and subgrant to eligible property owners.
The Commonwealth’s Main Street and Elm Street Programs have been used for similar reasons, but none of these are tied to zoning incentives per se. Through the PA Department of Community and Economic Development local governments can apply for an Anchor Building Revolving Loan Program Grant which they then can subgrant to developers.
The Anchor Program is especially useful for those “white elephant” buildings like defunct department stores, movie theaters, or old hotels which have been closed for years and have an adverse impact on the central business district. Whatever the financial incentives why limit them to a classification system? Lastly, there are a plethora of grants that do not necessarily advertise themselves for historic preservation purposes, but may be creatively used to rehabilitate a historic property. In addition if the property is a contributing resource to an eligible or listed National Register historic district, and is funded directly or indirectly by federal dollars the project will be required to meet the Secretary of the Interior’s Standards for the Treatment of Historic Properties, likewise if the property is eligible or listed on the National Register of Historic Places.
Lastly the federal government provides a Rehabilitation Investment Tax Credit to private property owners who rehabilitate an income producing building individually listed on the National Register of Historic Places or contributes to a historic district listed on the National Register.
It pays to check various federal and Pennsylvania state agency websites for grant opportunities. There is a Housing Urban Development booklet on using Community Development Block Grant funds for historic preservation projects. It is available online at: http://www.hud.gov/offices/cpd/environment/library/subjects/preservation/index.cfm
Michel R. Lefevre, AICP is a historic preservation planner for the Bureau for Historic Preservation at the Pennsylvania Historical and Museum Commission (PHMC). He has held this position since 1989. Prior to this, Lefevre was the historic preservation officer for the City of Reading, Pennsylvania for 11 years.
He has written historic preservation articles for local and national government publications and authored two PHMC publications: Historic District Designation in Pennsylvania and a Manual for Pennsylvania Historical Architectural Review Boards and Historical Commissions. He coordinated the 2000-2005 Historic Preservation Plan and has developed hundreds of seminars, workshops, conferences and special events to inform Pennsylvanians about their cultural heritage. He received a B.S. in Public Policy and a M.A. in Public Administration from the Pennsylvania State University, Harrisburg at Middletown, and is certified as a planner by the American Institute of Certified Planners.
