Innovative Tools For Hp

ited by regulation, and that use threatens a nuisance-like harm to other property owners (based on 'background principles" of the ~tate's property and nuisance law), compensation is not required, even if the owner loses all economic value, because the disputed use is not consid­ ered inherent in the property rights of the owner in the first place. Lucas has little direct relevance for historic preserva­ tion and downzoning because these land-use techniques are rarely used to restrict nuisance-like property uses. Nonetheless, the Lucas decision may indirectly result in more takings claims-or at least threatened takings claims-because of the perception that the Supreme Court is growing more sympathetic to property owners. At the same time, it is important to note that the Court in Lucas reaffirmed the broad regulatory authority of state and local governments, and acknowledg that only on "rare" or "extraordinary" occasions does a regulation actually deprive a property owner of all economically viable usc. As a precaution, however, lawyers are now advising local governments to include a safety valve that allows for exceptions to the law in any regulation that somehow limits the activity a property owner may undertake on his or her property. The safety valve may be a variance or special permit procedure or an economic hardship provision in the ordinance or statute. SPOT ZONING Spot zoning usually refers to the rezoning-to either a more or less restrictive land-use classification than is applied to the surrounding area-of a small area or a specific parcel. The term generally carries a negative connotation because it is implied that the rezoning is not intended to satisfy a legitimate public purpose but, instead, is a means of increasing economic benefits for the owner of the property and is in di egard of plan­ ning principles (Ziegler 1990 and Rohan 1981 b). Unlike districtwide rezonings, downzoning/spot zoning a specific parcel is more closely scmtinized in the courts. Downzoning can be particularly difficult in preservation situations when one specific resource is being protected in an area that is surrounded by newer development 01 a completely different sort. Downzoning can serve as a last ditch alternative, or it can supplement landmark designation or demolition moratoria. Any objection by a court is likely to be based on "voiding the creation of "islands" of incompatible development, historic or otherwise. Planning and zoning commissions will generally use the following criteria to judge whether a rezoning is invalid or unconstitutional due to spot zoning: The size and number of parcels; Compatibility with surrounding uses; Public benefit; and Compliance with the comprehensive plan.

These are the same criteria a court would apply if a rezoning were challenged. HOW TO DO ZONE D wnzoning may entail a comprehensive reclassifi­ cation of properties in a neighborhood or the rezoning of an individual parcel. This report deals primarily with large-scale downzonings. Depending on the circum­ stances, downzonings are either initiated by one or a group of property owners, a neighborhood group with an interest in the area, or the planning department. In cases in which downzoning is a reflection of a new planning policy, the impetus may have originated with residents of the area, but it is planners who usher the rezoning through the approval process. Citizens or neighborhood groups interested in downzoning must contact the planning and zoning department to get assistance with their request. Downzoning can be accomplished in several ways. In undeveloped areas, it may mean increasing the minimum lot size. In urbanized areas, it can be accom­ plished by decreasing the allowable density within a given district (from medium- to low-density residential, for example) or by changing the zone classification from commercial to residential or industrial to commercial. Administratively, there is no difference behveen downzoning and any other type of rezoning or request for change of the zoning ordinance and map. There are three constitutional i u. (in addition to the takings issue) that must be acknowledged by the local government with regard to all rezonings. TI1ese issues are procedural and substantive due process, and equal protection. Proce­ dural due process relates to whether the affected property owner was given advance notice and opportunity to comment on the rezoning, and whether the hearing was fair. Substantive due process ensures that the proposed downzoning erves a legitimate public purpose that is supported in a comprehensive plan. Equal protection provides that the affected property owners will receive comparable treatment to others in similar situations and that low-income groups are not being excluded from the community as a result of the downzoning.

LEGISLATIVE V. QUASI-JUDICIAL ACTS Some states view rezoning of small parcels of land as quasi-judicial. This has several consequences; most notably, the merits of the rezoning will be subject to greater scrutiny than in a legislative setting. The applicant V\rill be required to submit evidence and establish a record that proves that the rezoning is justified. States that treat rezonings this way include Colorado, Idaho, Kansas, Maryland, Montana, Nevada, Oregon, and Washington (Ziegler 1990). Even in these states, however, comprehensive rezonings or rezonings of large areas are still viewed as legislative acts. Courts tend to use three general criteria in evaluating rezoning proposals (see, for example, Rohan 1981 b and Ziegler 1990): 27

The physical scope of the proposed zoning change. Is it a large parcel or wil'l there be charges of spot zoniDg? The impact of the proposed rezoning on the surround­ ing land uses and public facilities. Can the area reasonably support the development that will come as a result of the zoning change? The depth and extent of the planning process that led to the request for zoning change. Is the downzoning based on sound planning principles? Will the change throw off an otherwise balanced mix of land uses in the commu­ nity? Many communities have adopted criteria for evaluat­ ing rezoning requests. Local ordinances elaborate on the criteria that the zoning commission will use and provide lists of considerations that might be included when considering a zoning change. This helps to "level the playing field" to assure rezoning applicants that their case will be subject to the same criteria and level of scrutiny as everyone elses. Pasco County, Rorida, list 16 considerations which, when applicable, will be taken into account. A few of the questions that will have to be answered are: Does the zoning change lead to the crcation of an

isolated district unrelated to adjacent and nearby

districts?

Will the downzoning adversely influence Living

conditions in the neighborhood?

Does the change adversely affect property values in

adjacent areas?

Is the resulting change out of scale with the needs of the neighborhood or the county?

RELAnON TO THE COMPREHENSIVE PLAN The importance of the comprehensive plan in downzonings should not be underestimated. The general requirement found in state zoning enabling legislation is that zoning must be in accordance with a comprehensive plan. Although this rule applies to both initial comprehensive zonings and to rezoning, most challenges to downzoning occur when a property is being rezoned (Ziegler 1990). Most districtwide downzonings represent an effort to make the zoning consistent with a new comprehensive plan, a new planning policy of the city, or to revise errors made in earlier plans. Courts look favorably upon comprehensive amendments to the zoning ordinance when they are tied to valid community goals, such as affordable housing, historic preservation, and stable property values.

Under New York City's comprehensive zoning amend­ ments, the excessive paving of front yards and elimination of landscaping is prohibited. Off-street parking //lust now be accommodated in the "side lot ribbon."

28

California, Rorida, and New Mexico, among other states, make large rezonings contingent on amendments to the comprehe sive plan ("Criteria for Rezonings," Zoning News, March 1990). In states that do not man­ date comprehensive planning, an amendment to the zoning ordinance is equivalent to an amendment to the comprehensive plan. If a plan does exist but does not accurately reflect what development has actually occurred (and which large downzonings or rezonings are planned), the comprehensive plan should be amended to reflect the new policies and to lend legal clout to the proposed rezonings. Maryland and Mississippi use what is called the "Change or Mistake" rule for rezonings. This requires the rezoning applicant to show that there is a mistake in the original zoning designation or that "a change in circumstances subsequent to enactment of the original classification justifies the rezoning" (Ziegler 1990). There are many instances in which new community goals not adequately articulated in earlier planning polici and d ments or the zoning ordinance constitute a "change in circumstances." Historic preservation and affordable h using are two good examples of this. It has only been within the last two decades that the importance of protecting a community's historic resources and the value of historic preservation as an economic d velopment tool have been widely acknowl dged at the local level. By the same token, affordable housing really reached a crisis point only in the 1980s. Communities are now routinely addre sing these issues and others (e.g., homelessness and solid waste disposal) in their comprehensive plans. An implementation tool such as downzoning is simply one the many mechanisms communities use to accom­ plish these objectives.

CASE STUDIES Twenty communities responding to the APA survey said they had used downzoning as a tool to protect historic resources or neighborhood character. We have

Left: Prior to the citywide d07Ullzoning effort, zoning regulations ill New York City neighborhoods permitted structures much taller and bulkier than what existed. The downzonillg restricts the bulk of new buildings by coul/ting all floor ai'ea (including attics) within a building into the FAR. The purpose is to help neighborhoods retain their low-density character (right).

chosen to highlight three fairly divergent examples­ from the neighborhoods of New York City to down­ town Portland, Maine, to downtown Boston-to illustrate the possibilities of the technique. Contexualism in New York City Arguably the largest downzoning in history was undertaken in 1989 by the New York City Planning Department. There had been widespread concern by residents in the city's many low-density residential areas about incompatible high-density infill develop­ ment and conversions of attics and garages to apart­ ments. Older houses were being tom down and replaced with boxy rowhouses. In many areas, the new development included curb cuts for driveways and unattractive paved surfaces where one would normally expect a front yard. The proliferation of curb cuts severely reduced the availability of on-street parking in the neighborhoods. The general sentiment among the residents and neighborhood groups was that a low-density neighbor­ hood embodies a certain character that was worth preserving and that none of the new construction that was occurring was compatible with existing develop­ ment. When the citizens put pressure on the planning department to evaluate the situation, planners agreed that there was a problem. But the department also recognized that compromises would have to be made to continue construction of some new housing to allow affordable housing to be built (Hornick 1990). The comprehensive zoning amendment changed the regulations for development in the city's four existing low-density zones, R3-1, R3-2, R-4, and R-5. In several of the districts, the new zoning reduced the allowable floor area ratio (FAR), thus eliminating the incentive to tear down houses and build to the maximum density

(New York City, Department of City Planning, 1989). The crafters of the new regulations sought to encour­ age development tha is contextual-that fits in with what is around it-but not "cookie cutter." They decided on a general height limit for roofs of 35 feet, with perimeter waUs limited to 21 feet in height. These restrictions create sloping roofs with varied apex points. Setbacks are allowed to vary in an effort to make the streetscape look int r sting. Houses that are built with usable attic space are eligible for 20 percent more FAR, thus encouraging sloped r fs. The new regulations also created six additional low­ density zones to be used in neighborhoods where the existing zoning is inappropriate or does not reflect what is built there. These zones will have to be mapped before they have any effect. The city is now in the process of identifying neighborhoods that warrant the extra protection the new districts can provide. As these new district are proposed, they must go through the land-use approval process, which requires community board review and approval by the city plan commission and the city council. Reducing Building Heights in Portland, Maine In 1987, Portland, Maine, began developing a new downtown plan, the Downtown Vision, as part of the city's overall revision of its comprehensive plan. A major objective of the process, according to Philip Meyer, the city's chief urban designer, was "to protect what we had in terms of character while at the same time encouraging growth and development," (Meyer, telephone conversation, July 17, 1991). At approximately the same time that the Downtown Vision was under consideration, the city council was ushering through Portland's first historic preservation ordinance. A previous attempt to pass such an ordi­

29

nance was defeated by one vote in 1980, and the issue lay dormant for most of the decade. In the late 1980s, however, a number of k y historic buildings were demolished, including several in the downtown. These losses spurred interest in getting the ordinance passed, and it won by a clear majority in the city council in August 1990. Despite the fact that the Downtown Vision was being worked on at the same time as the historic preservation ordinance, the plan did not include preservation as a main objective. As Meyer put it, "We didn't want to fight the preservation battle again in doing the plan, but we were very careful to emphasize the need for a sensitive response to our existing historic buildings." To that end, a laundry list of urban design and zoning policies were instituted that protect and enhance the historic elements of downtown. Most importantly, height limits were increased in some areas to con en­ trate density and were reduced in other areas to protect views of historic districts and building and th water­ front. First, the previous citywide limit for buildings, which was 125 feet, was increased to 210 f et on Con­ gress Street, the main thoroughfare through dmvntowl1. In historic and waterfront districts, maximum heights were limited to 65 feet. These changes in new height limitations reinforce the historical form of the city, with the tallest buildings creating a spine down the middle of the peninsula and heights gradually decreasing to the waterfront. As the plan states: The height policy directs and encourages the most intensive growth in the cme of the downtown where it can be best acconunodated. Building height should be moderated in the historic area and near the waterfront where the impacts of large-scale new developmenl would be detrimental.

Particular attention is paid in the Downtown Plan to protecting views of "visual landmarks," which in Portland include several churches, City Hall, and an observatory. The plan stresses how important it is to surround landmarks with structures of similar scale. Landmarks must also be able to be "read against the sky" and not dwarfed by neighbors. The new height limits contained in the Downtown Vision for Portland serve preservation two ways. First, they reduce development pressure in historic districts by decreasing the allowable density, thus eliminating the incentive to demolish and build larger buildings. Second, they enhance the visibility and attention paid to other individual landmarks by protecting views of landmarks and view corridors to the waterfront. Interim Downzoning in Boston Most property reclassifications that result in downzoning are meant to be permanent. In some cases, however, downzoning can be used on an interim basis to decrease development pressure on a specified area until there can be a detailed analysis of what is appro­ 30

priate in the long-term. In the case of Boston, the height limits in the downtown were significantly reduced under the Interim Planning Overlay District plan. Although it was initially billed as an interim ordinance, the primary objective was to get protective controls in place to give the city some time to complete a perma­ nent revision of its downtown zoning ordinance (Collins et al. 1991). In 1987, the Boston Redevelopment Authority adopted the Interim Planning Overlay District (IPOD) ordinance, which imposed significant height restrictions across the city for two years. The interim controls were necessary to protect the quality of the historic down­ town from the effect of unbridled growth. The ordi­ nance established four types of districts-priority preservation, restricted growth, medium growth, and economic development. Each district has a different range of allowable heights within it. The restrictions were based on the character of the buildings and the current land uses in the clistricts. The h ight limits range from 40 feet with FARs of 2:1 in the priority preservation districts to 300 feet with FARs of 14:1 in the economic development districts. AU the IPODs, except the priority preservation district, have bonus provisions for developers to secure more height and density for their projects. To be allowed more density, developers must prove that the project is compatible with the surrounding structures and that the public benefits outweigh any burdens being imposed. Special design review requirements apply in the economic development districts for projects request­ ing more density or height. Developers must also provide child care facilities for the employees of the proposed building. In order to lL her through major development projects that 'were already in the works, certain pockets within each lrOD ,vere set aside for planned unit developments. Building heights in the rUDs cannot exceed 400 feet. Both this concession and the density bonus provisions were seen as a key factors in getting the development community to support the entire lrOD process. According to many, the success of the IPOD process was due to the willingness of the Boston Redevelop­ ment Authority to involve developers in the planning process. Although some argue that the new height limits still allow too much density, most preservationists and planners are satisfied with the result of the multiyear downzoning process. Although the examples offered here are from big cities, downzoning is a relatively simple technique that can be used almost anywhere--including small tmvns and neighborhoods. In fact, several of the examples of conservation districts offered in Chapter 2 of this report use downzoning to accomplish the objectives of the districts.

Chapter 4. Preservation and t e

Comprehensive Plan

Comprehensive plans represent the only format unified overview of the quality of life in a community. They are a status report on how a community is performing in the way of providing affordable housing, safe transportation systems, job growth, economic development, and a clean environment, among other indicators. Each of these issues is typically addressed in an element of the plan. They also provide a forum for setting goals about what the community "vants to be in th future. A municipality's authority to do comprehensive planning comes from state planning and zoning enabling legislation. Comprehensive plans are a declaration of policy and intent of a local government, and, in some states (e.g. Florida and Oregon), they have the power of law. Even when comprehensive plans are only advisory, courts have historically supported the land-use and zoning decisions that were articulated in them. Historic preservation is an important element in establishing a community's character and its residents' quality of life. A preservation program provides a historical context for future planning and land-use policies, especially as these policies affect urban design. Older neighborhoods and buildings help determine what style and scale of future development is appropri­ ate. Using past architectural styles and a historical urban form as a benchmark, historic preservation gives community residents a connection to the history of their home, neighborhood, city, and region. This "sense of place" fosters pride and gives people a greater incentive to remain active in the community as citizens, neigh­ bors, and property owners. TYPES OF LOCAL PRESERVATION PLANS Communities with a strong policy commitment to preservation will, as a matter of course, include preservation concerns in several other elements of their comprehensive plan. Some communities, given adequate staff time and a policy commitment (or where required by state law), break out the elements of the plan into separate documents. These docu­ ments an: produced by staff, task forces, or steering committees with expertise in that policy area. Local historic preservation plans, ill fact, are often a detailed off-shoot of an clement in the community's compre­ lwnsive plan. Kane County, Illinois, for example, recently published a historic preservation plan that was developed as a component of the its new compre­ hensive plan.

Kane County's plan is a good response to a common challenge for county preservation programs. The county's jurisdiction contains three types of settlement patterns: urban fringe areas, a handful of rural villages, and agriculhlrallands. The plan has specific goals and objectives to address the differing historic preservation concerns confronting each geographical area. For example, the goal for the suburbanizing and urban fringe areas is "to maintain the elements of the landscape that contribute to its attractiveness and historical character." The objectives then list ways in which this can be accomplished. One of these is to "retain existing buildings, including barns and creameries, by facilitating their reuse in ways appro­ priate to their new environments." The goal for the rural villages is to "maintain the historic character [of the villages] while encouraging their development as commercial and cultural centers." Two of the seven objectives put forth to achieve this are to "permit new construction in village centers that is compatible in design and placement with existing structures" and to "separate the historic village from surrounding new development through the use of open space and landscaping" (Kane County 1989). Communities may also develop specific historic preservation plans, such as neighborhood, historic district, or resource-based plans that prescribe a detailed strategy for a specific area. Some of these plans and studies are funded through the Certified Local Governments (CLG) program of the National Park Service, if the city has received that distinction. A 1990 survey by the National Park Service of State Historic Preservation Officers indicated that 13 percent of CLG grants to local governments went to the development of preservation plans (Morris 1990). Most communities that have locally designated districts or districts listed in the National Register of Historic Places have published an inventory of existing resources with detailed design guidelines for new construction and alterations. Although these documents are often referred to as plans, they do not contain policies and recommendations. Instead, their purposes are to educate the public on the history of the district, inform property owners what property alterations are acceptable according to local ordi­ nances, and enable the local historic commission to administer the historic preservation ordinance. Other preservation plans go several steps further to outline strategies for expanding the district and identify problems or conflicts within the districts. 31

Eugene, Oregon, for example, did a specific plan for its West University Neighborhood. Th purpose was to develup effective methods for id tifying and resolving c nflicts between new buildings and the neighborhood's historic properties ( ity of Eugene 1990). Identifying such conflicts is an integral part of the state of Oregon's preservation requirements for communities. (More details on the state program can be found below.) Eugene's West University eighborhood plan does contain an inventory of historic resources in the area. The inventory ranks the properties according to their architectural and historical significance. The catego­ ries used to assign significance--Primary, Secondary, Contributing, and Noncontributing-are those used throughout the preservation field. The survey information is part of the basis for the plan's recom­ mendations. One of these recommendations points to certain areas of the neighborhood that have enough structures of primary and secondary significance to be nominated as ational Register historic or locally designated conservation districts. It is important to note that great care should be taken in developing criteria for determining rank in an inventory. Criteria should include subjective elements. Also, it must be recognized that criteria and evaluation methods change over the years-including those used to measure what is aesthetically significant or of value. WHAT PRESERVAnON GAINS IN THE PLANNING PROCESS Comprehensive planning serves a number of purposes that can help to advance preservation values and concerns. As mentioned above, preparing Retaining aspects of Kane County's agricultural heritaxe in /lew development, StIch as keeping farmsteads in new subdivisions (above, in the background; and right) is a goal of the county's historic preservation plan.

32

a comprehensive plan can bring historic preservation concerns to the forefront of local public policy when preservation is used to help meet the goals of each plan element. For example, the housing element of a comprehensive plan contains analyses of existing housing stock and describes what community hous­ ing needs are not being met. There are several com­ mon solutions to housing problems that involve preservation. Rather than just planning for the construction of new housing to meet shortages, a preservation-minded plan encourages rehabilitation. One goa[ outlined in the Asheville, North Carolina, comprehensive plant for example, is to "promote the conservation of Asheville's older housing stock by developing new tools and creative programs to assist with rehabilitation efforts." The implementation portion of the plan stipulates that money from the capital improvements program will be allocated to assist in developing rehab programs. omprehensive plans also contain clearly defined strategies for implementing goals and policies. The Atlanta preservation plan sees the implementation portion of the plan as "necessary to define what tasks need to be accomplished, who will accomplish them, and when they need to be accomplished." This is not just rhetoric. The plan include details on the imple­ mentation process, tasks, responsibilities, and time frame. The process refers to the individuals (in this case, the city's zoning administrator and the executive director of the urban design commission) who will implement the program on a day-to-day basis and the groups that will support them. The list of eight specific tasks includes: Meet with the city attorney to establish logistics and appropriate procedures for implementa­ tion; and Work to obtain passage of ordinances and enabling legislation as well as proposed increases in city staff allocation to support preservation activities. The responsibilities section delegates which groups, departments, and others are charged with each of the eight tasks, and the time frame section specifies the

As recommended in its historic preservation plan, the city of Atlanta is analyzing how existing zoning classifications and floor area ratios in the downtown affect preservation efforts. Shown here, tire historic Carnegie Building with the Peachtree Westin Hotel as {/ backdrop.

months in which each task is to be completed (Atlanta Comprehensive Development Plan 1991). Finally, plans offer a forum for inter- and intragovernmental cooperation. The Kane County, lllinois, preservation plant for example, acknowledges that municipal annexation of previously unincor­ porated land can result in the loss of protected status of historic sites and districts iff in fact, the annexing municipality does not have a historic pr s rvation ordinance. The plan encourages formal agreements between the county and its municipalities to "recog­ nize one anothers' landmarks and afford them appropriate protection." Atlanta/s comprehensive historic preservation program contains implementation strategies to coordinate the objectives of the program with those of the comprehensive plant the community development department, and other agencies whose programs affect preservation. The following actions are recom­ mended for coordinating historic preservation with the comprehensive plan: Incorporate the provisions of the preservation

program into the city's comprehensive plan;

Build cooperative working relationships between the urban design commission and the department of community development in designating and protect­ ing historic resources; Examine the implications of existing zoning classifica­ tions and FARs on preservation in neighborhoods, the central area, and the Peachtree corridor.

There are very specific recommendations for adding preservation programs to community devel­ opment programs: The urban design commission should work with Easements Atlanta to expand and market the facade easement program; The business improvement loan fund and the housing rehabilitation program should be applied to preserva­ tion; The tax abatement system used for the housing enterprise zone program should be applied to historic multifamily structures; and City offices should be located in historic buildings

when possible.

STATE MANDATES FOR PRESERVATION PLANNING States with growth management laws are provid­

ing a built-in framework for incorporating preserva­ tion ideals into the comprehensive plan. Six of the eight states that mandate local planning (Florida, Delaware, Rhode Island, Georgia, Maine, and Ver­ mont) require that those plans provide for the protec­ tion of historic and cultural resources; the two other states with mandated planning, New Jersey and Washington, recommend that preservation planning be done. The implications of three of these programs are discussed here.

Florida: Incorporating Preservation Values in Plan Elements Rorida has both a state comprehensive plan and mandates planning at the local level. The state plan includes preservation values in one of its 25 goals and in the policies of seve.ral other goals. The law requires that local governments plan for preservation of historic resources. Specificany, preservation values must be addressed in the communitys future land-use, housing, and coastal zone management elements or in a separate preservation element. For example, under the future land-use element, historic district boundaries must be mapped, and historic properties meriting protection must be identified. The housing element requires identification of historically significant housing for the purposes of conservation, rehabilitation, and replace­ ment. The coastal zone management element contains policies that guide redevelopment and historic preserva­ tion near the coast. County and municipal plans may also include historic preservation in their overarching goals. One 33

such goal in the Broward County, Florida, compre­ hensivC' plan is to "protect Broward County's natural and historic resources through well-planned patterns of growth and development" (13roward County Comprehensive Plan 1990). This goal has 10 underly­ ing objectives, one of which is to "protect histuric resources within Broward County from deterioratiun and loss." Five specific directiv s are set forth to reach this objective: The Broward County Land-Usc Plan and local land­ usc plans shall map and maintain a current list of historically, architecturally, and archaeologically significant properties, and address the protection of these historic resources; Local land-use plans shall ensure the protection of historic resources; Local government entities with historic resources should implement programs that preserve and/or rehabilitate historic resources through techniques such as historic preservation ordinances, building code provisions, and tax incentives; Local government entities shall coordinate their historic resource protection with applicable state and federal laws; and Broward County and its local government entities shall consider the impacts of land-use plan amend­ ments on historic resources.

Oregon: Identify Threats to Historic Resources. The local historic preservation planning require­ ment in Oregon's land-use planning law goes several steps further than other states'. A comprehensive plan must examine conflicts that may result in the alteration or demolition of historic resources. The examination process includes a review of applicable plans and policies, existing zoning, planned public and private improvements, the condition of the historic resource, and other local factors. Typical conHicts unveiled in this process include current threats (e.g., historic buildings in an advanced state of disrepair) and future threats (e.g., street widening, subdivisions, freeway extensions). If there is a potential conflict, the community must determine how likely it is that the conflict will occur. The city of Eugene, for example, examined the ratio of the value of historic buildings to the value of the lots on which they sit. When a building's value was lower than the land it was on, properties were considered to be likely candidates for demolition. The city also looked at the land values of areas containing historic resources and compared those values to surrounding land values. This analysis revealed that a large number of historic properties were situated on land that was valued lower than the surrounding parcels. Historic properties in those situations were consid­ ered to be threatened with demolition due to redevel­ opment pressure. 34

The next step Oregon communities must undertake is to analyze the economic, social, environmental, and energy (ESEE) cons quences of allowing conflicting land uses. These ESEE analyses consider the public consequences-not those faced by individual prop­ erty owners. The results of the analysis are used to decide how to proceed. The choices are: to design a program to protect the threatened resource; to design a program tha t balances protection of the resource while allowing the conflicting use; or, finally, to allow the conflicting use and let the resource go. Interspersed throughout this process are commu­ nity workshops-not just public hearings-to help determine the value of the resource to the community. The results of the entire process-identifying re­ sources and scenarios to protect them, balancing their protection with other uses, or leaving protection up to the property owner-become part of the community's comprehensive plan. Rhode Island: Implementation Is the Key The Rhode Island Compreh nsive Planning and Land-Use Regulation Act of 1988 requires communi­ ties to include a natural and cultural resources element in their comprehensivE' plan and tie it to an implementation program. The implementation program-for all elements, not just preservation­ defines the specific public actions to be undertaken to achieve the goals of the element. It also contains a schedule for these actions. The preservation requirement is straightforward: "The element shall include policies for the protection of the historic and cultural resources of the municipal­ ity and the state." These policies and implementation techniques must be identified and included in the implementation program. The plan piaces particular emphasis on the impact of new develupment on the rural historic areas that surround the jurisdiction and historic districts in a town. It suggests an open space acquisition program to help create a buffer between urban, suburban, and rural zones, with the ultimate goal of preventing sprawl into the surrounding countryside. Although the state of Rhode Island does not specifically require municipalities to draw urban growth boundaries, the policy in place does indeed advocate a physical limit to new development. HISTORIC PRESERVATION AND URBAN GROWTH BOUNDARIES Six of the eight states with growth management laws, and selected communities in other states (e.g., Lexington and Georgetown, Kentucky, Boulder, Colorado, and Minneapolis-St. Paul), are using urban growth boundaries as a means to balance local growth and control sprawl. These boundaries are also commonly referred to as urban limit lines or urban service areas. The buundary consists of a

mapped line that identifies the outermost limit of a city's planned expansion. Urban services (streets, water, sewers, etc.) are provided only within the boundary. The technique is d signed to encourage compact urban development in and around existing urban areas in a way that uses land and public services efficiently and economically. It also serves to protect the rural and agricultural areas that surround cities from development. In Oregon, the state that pioneered the technique in the mid-1970s, a city's urban grm·vth boundary must contain a 20-year supply of land zoned to accommodate housing, commercial, and industrial development, and the infrastructure necessary to support it. Outside the boundaries, land is zoned exclusively for agricultural and forest lands. Cities are required to reach agreement! with ti1eir county on where the boundary is set. Urban growth boundaries are not effective unless they are integrated into the compreh nsive plan, development review process, and zoning ordinance. In the state of Washington's growth management law, growth boundaries are a required element of the local comprehensive plan. The comprehensive plan contains the demographic

data and background studies that support a local government's decisions about the location and volume of land necessary to support all possible uses in a given time frame. For example, the housing element of a community with a 20-year growth boundary would contain housing needs projections for that period of time, includiGg the amount, type, density, and location of development. The goals and policies in each element of the comprehensive plan are used to evaluate proposals for development withh1 the boundary. Zoning controls are an integral part of developing the boundary. Often minimum lot sizes must be increased outside the boundary to ensure that they remain agricultural and forested lands. Within the boundary, it is sometimes necessary to increase the allowable densities to encourage certain types of development and to promote compact development. Using urban growth boundaries as a growth management technique can have an impact on the protection of historic resources. The boundaries can be used as a tool to encourage revitalization and redevelopment of existing neighborhoods and downtowns. A key element of keeping a historic

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Boulder's urban growth boulldary necessitatfd the adoption of in/ill development policies and guidelines to protrct the charactrr of t17r city's neighborhoods and collln1rrcial areas.

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Area 2B Area 3

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neighborhood or commercial area viable is that it must be used. By discouraging exurbanization, urban growth boundaries can serve to steer development into older historic areas and established neighbor­ hoods. This redevelopment, however, must be guided by design controls to make both rehabilita­ tions and infill development compatible and contex­ tual with the urban fabric and historical development patterns of the community. The effects of urban growth boundaries on estab­ lished urban areas are not always 01 asurable in the short term. Lexington-Fayette County, Kentucky, for example, drew its first 20-year urban limit line in 1958. The purpose of the limit line was to protect the scenic horse farms and agricultural areas that sur­ round the city. The goal of protecting these areas is shared by planners, developers, and citizens. Horse farms are what Lexington is known for and what makes it a unique part of the country. The original urban service area was analyzed and redrawn during the 1980 comprehensive plan process. During the most recent comprehensive plan update in 1988, it was determined tha t the land identified in the 1980 urban service area is generally adequate to meet the area's development needs until 2005. Lexington-Fayette County planning director Dale Thoma reports that, as of January 1992, only 500 acres out of the 12,000 to 14,000 developabl acres within the boundary had been developed (Thoma, telephone conversation, February 20, 1992). Given the amount of land still available, the boundary has yet to create significant development pressure in established neighborhoods. However, the community r assesses the growth boundary every f w years to determine if there is ample developable land for residential, commercial, and industrial uses. Thoma projects that developers' willingness to build only within the boundary will wane as the remaining acreage within the 20-year boundary is developed. Thoma also points to the acceptability of certain types of infill development in Lexington as an operative factor in how well a growth boundary may work. He says "a group of townhomes in a single-family neighborhood is about the most radical thing you might get." In other words, a policy to encourage infill development must be sensitive to the political environment of the community and the residents' willingness to accept higher densities than already exist. A 1991 analysis of urban growth boundary systems in Oregon indicated that communities had allocated too much land for future development within the boundary to make it an effective growth management tool. The biggest problem, in fact, has been spraWl within the boundary. Consequently, the urban growth boundaries in that state have not created a demand for infill or redevelopment in older urban neighborhoods and historic areas within the city (Greenleaf and Kelly 1991). 36

On the other hand, the Boulder, Colorado, phased development system-its version of an urban growth boundary-has had measurable effects on historic preservation and infill development since its incep­ tion in the city's 1978 comprehensive plan. Within the city's jurisdiction, lands are designated as Area 1, 2, or 3. Area 1 is alread y developed, Area 2 is urban reserve (i.e., it is designated for future annexation and development), and Area 3 is open space. The city only approves development in areas where the full range of urban services already exist-that is, Area 1. The result is that most new development has occurred inside the city limits. This "confined development" has brought the adoption of infill policies and design guidelines for commercial and residential areas. One unique mecha­ nism in place is the "house behind a house" ordi­ nance. It allows single-family lots to be subdivided to add a second house behind the principle house. Allowing homeowners to build the second unit prevents conversions of historic houses to rooming houses-an obvious temptation in a town with a 22,000-student university. More than 100 second houses, or alley houses, ha ve been built under the ordinance. All were subject to design review guide­ lines to ensure that they are compatible with the neighborhood (McGeyser, telephone conversation, January 10, 1992). Not every neighborhood has been amenable to this style of infil!. According to Ruth McGeyser, the city's historic preservation planner, a number of neighbor­ hoods have been downzoned at the request of the residents to prevent neighbors from subdividing their lots. Since the adoption of the 1978 comprehensive plan, the city has strongly encouraged all large-scale retail development to be built in the center of town. In 1979, the city extended an urban renewal district to help the Crossroads Mall (which is less than a mile from downtown) to expand to become a regional shopping center. Conversely, this policy has meant turning down proposals for outlying shopping centers. AU new development within downtown Boulder­ in both the historic district and the surrounding area-is subject to fairly stringent design guidelines. The purpose of the guidelines for new construction in the historic district is to "achieve compatibility with the surroundings." For the nonhistoric areas, the design guidelines reinforce the downtown as a pedestrian-oriented environment by "encouraging architectural solutions that are interesting in their designs and that will house interesting activities." These solutions include recommendations to provide direct access from the street to retail shops, to ensure easy visibility from the sidewalks into stores and to permit sidewalk cafes. These provisions are added to the typical requirements for compatibility between

new and old buildings with respect to height, mass­ ing, scale, and uniformity among architectural features, such as aligning cornices and similar win­ dow configurations. PLANNING AHEAD WITH URBAN GROWTH BOUNDARIES Urban growth boundaries can also serve as an impetus for protecting historic resources on both sides of the boundary that are not yet subject to development pressure. Just as environmentalists can alert planners as to the location of sensitive lands like wetlands and floodplains, historic preservation offices can provide maps and inventories of historic sites, landscapes, and archaeology. In the environmental realm, this is known as advanced identification-that is, targeting sites, neighborhoods, or open land for regulatory protection before it is threatened by development. A caveat is in order here with regard to publicly identifying historic and archaeological sites. These resources should only be mapped in general terms. Site specific loca tions of archaeological sites should not be made publicly available and should be given to developers judiciously. To specify the exact location of the sites will only put them at risk when the maps and plans are distributed to a wide audi­ ence. The increasing use of urban growth boundaries and their support by preservationists points to some interesting trends. First, they represent the melding of planning and preservation ideals. A basic tenet of the urban growth boundary concept is the contain­ ment of development and the prevention of exurban sprawl. This serves planning ideals by keeping urban areas vital and protecting agricultural and environ­ mentally sensitive lands. It serves preservation ideals by encouraging the continued use of historic build­ ings rather than their abandonment to sprawl. The challenge planners and preservationists face together is to encourage new infill and adaptive reuse and rehabilitation of older buildings that complement historic development patterns while maintaining a regulatory environment that is receptive to economic development. Creating a balance--in terms of appropriate design, types of uses, and quality­ between new development and existing development is something that conservation district ordinances have successfully addressed. Such districts might be very effective preservation tools in areas that use urban growth boundaries. A detailed discussion of how conservation districts work is contained in a Chapter 2.

STATE AND FEDERAL PRESERVAnON PLANNING The federal government has also mandated all state historic preservation offices to prepare and implement a comprehensive statewide historic preservation plan. Because the National Historic Preservation Act of 1966 did not explicitly articulate what the plan is to entail, many SHPOs have presented detailed inventories (also known as historic contexts) of their states' historic resources as their comprehensive plan. Other more progressive states have adopted plans that include inventories but also contain proactive strategies for achieving preservation goals through better coordina­ tion with other agencies, increasing the role of the public, and developing an overall vision for preserva­ tion in their states. Moreoever, in the last several years, the National Park Service, which oversees the activities of the SHPOs, has been developing new planning requirements for the states. In the future, SHPOs will be required to produce plans that provide an assessment of current important issues facing preservation, establish goals and objectives that provide a vision for the state (and for the SHPOs' work program), and that are developed with the input of outside agencies and professionals. The National Park Service believes that enhanced planning activity at the state level will help the SHPOs better serve local planners and preservationists by providing much­ needed technical assistance as well as a stronger voice in the state legislature.

In the last decade, preservation concerns and values have found their way into the comprehensive plan and the overall planning process. Too often, preservationists and planners have viewed each other as obstructionists who really do not understand one another's purpose or motivation. Today, many communities are recognizing the value of preservation from both a design and economic development point of view. Increasingly, municipalities are including a preservation element in their comprehensive plans or, at a minimum, incorpo­ rating preservation techniques into other standard elements of the plan, including housing and urban design. A 1991 review of 300 comprehensive plans by the Planning Advisory Service of APA's Research Department indicated that almost half of these have a preservation element or have incorporated preservation into other elements. This suggests that planners are looking at preservation as part of the planning solution, rather than a problem to be dealt with. State-mandated planning laws have been instrumental in making this a reality.

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REFERENCES

Books, Reports, Memos, Interviews, and Technical Papers

Abilene Historic Landmarks, City of Abilene, Texas, Planning Deparment, July 1990. Abrigg, Larry. Planner, City of Abilene, telephone conversa­ tion, October 21, 1991. Argesinger, Floyd. "Governor Requests Review of State's Historic Property Tax Exemption Benefit." Preservation Washington. Office of Archaeology and Historic Preservation. August 1991.

The Economic Benefits of Preserving Community Character: A Practical Methodology. Case studies of Galveston, Texas, and Fredericksburg, Virginia. National Trust for Historic Preservation. 1991. City of Eugene, Oregon. West University Neighborhood Conservation and Development Project Background Report. March 1990. Faxon, Don. Senior Historical Architect, Rhode Island State Historic Preservation Office, telephone conversation, November 14, 1991.

Atlanta Comprehensive Historic Preservation Program, August 1988. Prepared with the assistance of the Southeast Negotiation Network, Georgia Institute of Technology, and Institute for Environmental Negotiation, Univer­ sity of Virginia.

Freilich, Robert H., and Terri A. Muren. "Growth Manage­ ment and Historic Preservation." Prepared for the Atlanta Historic Preservation Steering Committee.

Austin, Kay. Local Preservation Programs Officer, Washing­ ton State Office of Archaeology and Preservation, telephone conversation, October 10, 1991.

Greenleaf, Craig, and John C, Kelly. Growth Management Study: Summary Report. Oregon Department of Land Conservation and Development. July 1991.

Bagne, Conrad E. "A Case for Downzoning: The Right to Reevaluate Districts." Proceedings of the 12th Annual Institute of Zoning and Planning, June 1975.

A GuidI' for Raleigh Ncighborhood Planning. City of Raleigh, North Carolina, Planning Department. October 1991.

Beaumont, Constance E. "Local Incentives for Historic Preservation." Fact Sheet. National Trust for Historic Preservation, May 1991. _ _ _--'. "Preservation Planning and Growth Manage­ ment: Innovations from New England." Preservation Law Reporter, 7 PLR 1018, 1988 Annual. _ _ _-----'. "State Tax Incentives for Historic Preservation: A National Overview." Historic Preservation Forum (Marchi April 1991). Blaesser, Brian, and Alan Weinstein. Land Use and the Constitution. Chicago: Planners Press, 1989. Chittenden, Betty. "Tax Incentives for Rehabilitating Historic Buildings: Fiscal 1986 Analysis." Preservation Assistance Division, National Park Service, February 1987. Collins, Richard c., A. Bruce Dotson, and Elizabeth B. Waters. America's Downtowns: Growth, Politics, and Preservation. Washington, D.C.: Preservation Press, 1991.

Hatmaker, Jan. Planner II, City of Phoenix, telephone conversation, February 4, 1992. Hellerstein, Jerome, R., and Walter Hellerstein. State and Local Taxation: Cascs and Materials. St. Paul, Minn.: West Publishing Company, 1978. Henderson, Diedtra. "Tax Break: Public or Private Benefit." Seattle Times, November 20,1990. Hornick, Sandy. "Context is Everything." Planning, December 1990. Howard, J. Myrick. "Using a Revolving Fund for Down­ town Preservation." Center for Preservation Policy Studies. National Trust for Historic Preservation. 1989. Hunt, E.L. Roy. "Managing Growth's Impacts on Historic and Cultural Resources: The Preservation Plan." Center for Preservation Policy Studies. National Trust for Historic Preservation. Spring 1989.

"Criteria for Rezonings." Zoning News, March 1990.

Kelly, Deborah M., and Jennifer Goodman. Conservation District Projcct Research Report for the National Tmst for Historic Preservation. Prepared by the Preservation Coalition of Greater Philadelphia. June 1991.

Conservation Zoning: Protecting Nashville's Architectuml Heritage. Nashville Metropolitan Historic Zoning Commission, 1989. (brochure)

Landmarks Preservation Council of Illinois and Commis­ sion on Chicago Landmarks. Report of the Task Force on Economic 1nw/tives for Chicago Landmarks. July 1, 1992.

Corpuz, Ray. "Historic Districts vs. Conservation Districts," staff memo from cultural resources manager to the city manager. Tacoma, Washington, March 6,1991.

State of Maryland, S.B. No. 327, Income Tax Deduction­ Preservation of Historic Property, July 1, 1987.

Dennison, Shain, Executive Director, Metropolitan [Nash­ ville] Historic Zoning Commission, telephone conver­ sations, May 2,1991.

Oowntown Height Study. Portland, Maine, Policy Report. Carr, lynch, Hack amd Sandell, consultants. February 1989. Oowntown Vision: A Celebration of Urban Living and a Plan for the Future of Portland. (A component of the comprehen­ sive plan for the city of Portland, Maine.) March 1991. Easley, Gail. Principal, Henigar and Ray, telephone conver­ sation, January 16, 1992.

McGeyser, Ruth. Historic Preservation Planner, City of Boulder, Colo., telephone conversation, January 10, 1992. McIntyre, Suzanne. Planner, Park City Municipal Corpora­ tion, telephone conversation, October 16, 1991. Meyer, Philip L., Urban Designer, City of Portland, Maine, telephone conversation, July 17, 1991. Miles, Don c., et al. Trackside: Preserving Railroad Station Warehouse Districts. City of Tacoma, Washington, Department of Community Development. 1988. Morris, Stephen A. Certified Local Governments 1990: A Status Report. National Park Service, Interagency Resources Division, November 1990. 39

"Neighborhood Conservation Districts in Cambridge." Cambridge Historical Commission, June, 1989. (brochure)

City of San Antonio. Departments of Buildings Inspections and Economic and Employment Development. Annual Landmark Resources Incentives Manual, 1988.

New York City, Department of City Planning. "Lower Density Contextual Zoning Amendment: Answers to Commonly Asked Questions." June 7, 1989.

Schnidman, Frank, Stanley D. Abrams, and John D. Delaney. Handling the Land Use Case. Boston: Little Brown and Company, 1984.

____. Lower Density Contextual Zoning Study. January 1989.

Sivinski, Valerie, Historic Preservation Planner, Tacoma, Washington, telephone conversation, April 21, 1991.

Oregon State Historic Preservation Office. "Special Assess­ ment of Historic Property." Fact Sheet, 1991.

South Carolina Department of Archives and History. "South Carolina Tax Incentive Program for Historic Preservation Projects." Fact Sheet, 1991.

Osborne, Pat. Historic Preservation Officer, City of San Antonio, telephone conversation, October 15,1991. Park City Municipal Corporation. 1990 Historic District Incentives Program. Grant Information Sheet. City of Phoenix, Neighorhood Plans Section. Special Planning District Handbook. June 1988.

Roanoke Vision, Zoning: A Process for Balancing Preservation and Change. Buckhurst Fish Hutton Katz, Thomas and Means Associates, and Margaret Grieve, consultants, 1986. Robinson, Susan, and John Petersen. Fiscal Incentives for Historic Preservation. Washington, D.C.: Government Finance Research Center, 1989. Roddewig, Richard. "Economic Incentives for Historic Preservation." Washington D.C.: National Trust for Historic Preservation, Critical Issues Fund, 1988. _ _ _ _. "Economic Incentives for Historic Preservation in Atlanta." Submitted to the Institute for Environmen­ tal Negotiation and the Atlanta Preservation Center, Inc., December 1987. _ _ _ _. "Preservation Ordinances and Financial Incen­ tives: How They Guide Design." Washington, D.C.: National League of Cities, 1981. _ _ _---', and Christopher Duersken. Responding to the Takings Challenge. Planning Advisory Service Report 416. Chicago: APA, 1989. Rohan, Patrick J. "Comprehensive Plan." Chapter 37 in volume 6 of Zoning And Land Use Controls. New York: Matthew Bender & Co., Inc., 1981a. _ _ _ _. "Spot Zoning." Chapter 38 in volume 6 of Zoning And Land Use Controls. New York: Matthew Bender & Co., Inc., 1981 b Rypkema, Donovan. "The Economic Benefits of Rehabilita­ tion." Information Series No. 53. Washington, D.C.: National Trust for Historic Preservation. 1991. Rypkema, Donovan, and Ian Spatz. "Rehab Takes a Fall." Historic Preservation, September IOctober 1991.

40

"Successful State Advocacy." Case studies of state-level preservation efforts. Information Series No. 52. Washington,o.c.: National Trust for Historic Preser­ vation, 1991. Sullivan, Michael. Historic Preservation Officer, Tacoma, Washington, telephone conversation, April 27, 1992. Summers, John. Nashville City Councilman, telephone conversation, May 6, 1991. Swenson, Keith. Planning Consultant, Bozeman, Montana, telephone conversation, May 4, 1992. Taylor, Christine. Assistant Planner, City of Eugene, Oregon, telephone conversation, October 26, 1991. Thoma, Dale. Lexington-Fayette County Planning Commis­ sion, telephone conversation, February 20, 1992. State of Vermont Division for Historic Preservation, Agency of Development and Community Affairs. Vermont Historic Preservation Plan. Fact Sheet, April 1990. Washington Department of Community Development, Office of Archaeology and Preservation. "Special Valuation: A Local Tax Incentive Program." Fact Sheet, 1990. Williams, Norman. "The Role of Judicial Attitudes in Planning Law." Chapter 4 in American Planning Law, Land Use and the Police Power. Deerfield, III.: Callaghan and Company, 1988. Zellie, Carole. A Study of Conservation Districts. Prepared for the St. Paul, Minnesota, Heritage Preservation Commis­ sion, June 1991. Ziegler Jr., Edward H. "Rezoning Procedures." Chapter 27 in Rathkop!,s, The Law of Planning and Zoning. New York: Clark Boardman Company, September 1990. _ _ _ _."Rezonings: Subtantive Validity and Standards of Judicial Review." Chapter 27A in Rathokop!,s, The Law of Zoning and Planning. New York: Clark Boardman Company, March 1984.

ORDINANCES Abilene, Texas. Historic Preservation Ordinance. Adopted 1984; Historic Tax Reduction Ordinance. Adopted 1985.

Phoenix, Arizona. Special Conservation (SC) District. Supplement adopted August 31,1978.

Atlanta, Georgia. Unified Development Code, Chapter 35, Division 10, "Historic Districts and Landmarks." August 1987.

Raleigh, North Carolina. Neighborhood Conservation District Overlay District. Ordinance No. 292 TC 328. 1988.

Athens, Georgia. Historic Preservation Commission Ordinance. Adopted November 4, 1986.

Seattle, Washington. Landmarks Preservation Ordinance. 1977.

Aurora, Illinois. Preservation Ordinance. Adopted 1990. Bozeman, Montana. Neighborhood Conservation Overlay District. Provisional Adoption, August 19, 1991.

Tacoma, Washington. Landmarks Preservation Commission and Landmarks Special Review Districts Ordinance. Aopted December 12, 1989.

Chicago, Illinois. Rules and Regulations of the Commission on Chicago Landmarks. Adopted July 1, 1987.

Williamsburg, Virginia. Archtectural Review Ordinance. March 1, 1991 (draft).

Nashville, Tennessee. Historic Districts and Landmark Regulations Ordinance. Adopted March 20, 1984, updated August 20, 1988.

PLANS Asheville City Plan 2010. Asheville, North Carolina, City Planning Department. 1987.

Galella, Illinois, Comprehensive Plan. City of Galena, Illinois. May 1991.

Atlanta Comprehensive Development Plan. Atlanta, Georgia, Department of Planning and Development. July 1991.

Kane County Historic Preservation Plan. Kane County, Illinois, Development Department, Planning and Projects Division. November 1989.

Broward County, Florida, Comprehensive Plan. Land Use Element. 1989. Downtown Boulder Urban Design Plan. Boulder Department of Community Planning and Development. January 1986. Restoration Riverside: A Plan for Downtown Historic Districts. Riverside, California, City Planning Department. May 1983. East Greenwich Comprehensive COlllmunity Plan. Town of East Greenwich, Rhode Island, Planning Department. 1991.

Montpelier Master Plan. Montpelier, Vermont, Department of Planning and Development. June 1990. Park City, Utah, Comprehensive Plan. Park City Municipal Corporation. 1985. Union Station District Master Plan. City of Tacoma, Washington, Plannning Commission and Landmarks Preservation Commission. May 1989.

The Plan for EI Paso. Technical Report VII, Historic Preserva­ tion. City of El Paso Department of Planning, Research, and Development. 1988.

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