A Libertarian perspective on historic designation

All across America, local governments are stripping property owners of their rights, reducing the value of real estate assets while also gentrifying neighborhoods at the expense of moderate and low income free- and leaseholders, and raising the bar for the businesspeople who serve local needs. The actions, often achieved with neither the "due process" nor the "just compensation" guaranteed by the Constitution of the United States, are hidden behind the pious and seemingly idyllic but cynical and frequently sinister screen of historic preservation.

The situation in Philadelphia is especially dire. If an area is designated as a Historic District under Section 14-2007 of the Philadelphia Code, no work -- however minor -- may be done to the exterior of a building without first submitting an application and obtaining approval from the Philadelphia Historic Commission. Some small repairs are approved routinely, imposing only delays and burdensome paperwork requirements on the applicant. Many projects, however, are disallowed unless the work helps bring a building into conformance with original construction details. The latter range from the composition and profiles of mortar used in pointing brick and masonry to specification of the materials which must be used when roofing is replaced -- and, along the way, include everything from the types of replacement doors and windows to be installed, the columns supporting porch roofs, and the spindles used in railings and banisters.

Owners are deprived of the use and enjoyment of their property when modifications they desire are disallowed. Further, when exterior work is performed, they are often faced with costs many times higher than those of perfectly adequate, craftsmanlike, attractive alternatives. Moreover, although the Philadelphia Historic Commission claims in its informal guidelines that it cannot compel a property owner to do any work, merely to do jobs the freeholder elects to initiate in a suitable manner, the Code includes a vague statement that all buildings in a historically designated area must be kept in good repair; it is accordingly possible that an owner may be compelled to do work the Commission, or zealous neighbors, deem appropriate.

Some cities offer owners tax-oriented incentives for alleged improvements, Philadelphia does not. This factor in combination with the requirements of the Code, was found by researchers at Temple University to reduce the value of the class of properties studied -- small multifamily buildings in Center City -- causing them to conclude that the city's regulations lowered property values relative to similar structures in comparable but non-designated neighborhoods, were "confiscatory." The reduction in property values, a factor contrary to the anecdotal claims of designation proponents, has also been found in a comparison of several Washington DC neighborhoods. Both of these studies involved sophisticated statistical analyses and were published in authoritative peer-reviewed journals.

A further problem is the manner in which an area is designated as a historic district in Philadelphia. Any individual or organization may submit a "nomination" to the Philadelphia Historic Commission. If the Commission determines the nomination to be reasonable, it is obliged to hold hearings at which any interested parties may testify, then makes a decision.

The Philadelphia Code does not provide any basis for the decision, however. There are no standards whatsoever related to surveys of stakeholders or percentages of affected parties who may approve or disapprove of the designation. Further, city employees working for the Historical Commission provide support to individuals and groups preparing nominations. When the present Mayor, John Street, was President of City Council, he was deposed in a Pennsylvania Supreme Court case involving the Historical Commission and stated: "... this Commission would have grabbed even the slightest, most flimsy straw and used it as an excuse to certify that building and then subsequently prohibit its demolition."

At the present time, the University City Historical Society (UCHS) and the Spruce Hill Community Association (SHCA) are paying a consultant $25,000, with an additional $5,000 "contingency" reserve, to prepare documentation to support a nomination of Spruce Hill as a Historic District under the Philadelphia Code. The combined membership of the two groups is under 500, and largely comprises relatively affluent owner-occupants. The area being proposed for certification, in contrast, has an economically as well as racially and otherwise diverse population of 16,000 with six times as many leased as owner-occupied properties.

A serious problem is that SHCA purports to speak with the "voice of the community." Like similar organizations in other sections of the City, it has positioned itself to do so over the years because most of its programs are of little interest or consequence to the general population so few residents pay any attention to what it does. Yet, when representatives of the City and of the University of Pennsylvania and other major institutions in the area wish to "get community opinion," the officers of SHCA make themselves readily available and highly accommodating.

An effort is being made to form a coalition of socially active and other informal neighborhood groups to negotiate a compromise nomination with UCHS and SHCA. Rather than simply attempt to have the nomination rejected, thereby depriving those who want their property historically designated, the proposal is to apply for a blanket preliminary approval for the neighborhood as defined by UCHS and SHCA, but to request actual certification on a block-by-block basis and only for those blocks meeting the criterion that some yet-to-be-determined percentages of residents and or property owners agree and do not object to this action.

At present, the effort has a dual focus.

1) Raising the issue in various forums to help apprize the community of the proposal and its ramifications.

2) Sending the message that a group far larger and more representative of the neighborhood than the UCHS and SHCA can and will demonstrate opposition at the time of the hearings, while showing the extent to which the nomination and possible designation are polarizing what may be the most diverse yet harmonious neighborhood in Philadelphia.

The first point is being achieved in part by letters, news coverage, and other promotion in the local weekly newspaper (The University City Review), the University of Pennsylvania student newspaper (The Daily Pennsylvanian), and the cultivation of contacts for inclusion in appropriate items in one or both of the major city papers (The Inquirer and The Daily News). The City Paper and Philadelphia Weekly are also being targeted. Designation opponents are also attending monthly SHCA Board of Directors' meetings to establish a record of community opposition and to question particulars such as the lack of a survey of neighborhood residents and the source of the funds being paid to the consultant for preparing the documentation.

The second point is planned to be achieved by a campaign involving leaflets and petitions.

This is as strong an issue, not only in Philadelphia but nationwide, as Libertarians are likely to encounter at the local level. Not only Libertarians in the sense of those who have rejected the intrusive government principles of both the Democratic and Republican Parties, but all who cherish the rights granted to Americans under the Constitution of the United States and accept the responsibilities attendant to them.

And as the late Speaker of the US House of Representatives, Tip O'Neill, once said, "All politics is local." Libertarians might not have agreed with Speaker O'Neill on much, but this one is hard to contest.

shhd208