Renewed Energy Sustainable Historic Assets As

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101

RENEWED ENERGY: SUSTAINABLE HISTORIC ASSETS AS

KEYSTONES IN URBAN CENTER REVITALIZATION

Michael N. Widener*

I. INTRODUCTION

This tale of historic proportionality begins with an illustrative

“numerator,” second-generation First Baptist Church (“First BC”). Located

at 302 West Monroe Street in Phoenix, Arizona,1 the church was built in

1929 and expanded in 1948.2 Local architects Fitzhugh & Byron prepared

working drawings and supervised initial construction,3 but First BC was

designed mainly by George Merrill, architect of the American Baptist Home

Mission Society in New York.4 Designed primarily in Italian Gothic style,

the church includes Moderne5 and other architectural movement elements,

* Adjunct Professor at Arizona Summit Law School and Sperling School of Business,

University of Phoenix; Zoning Adjustment Hearing Officer, City of Phoenix; and Of Counsel,

Bonnett, Fairbourn, Friedman & Balint, P.C. The author and his wife own an NRHP-listed family

farm in Tennessee. See TENN. HIST. COM’N, TENN. HIST. Q. 90, 104 (2001).

1 U.S. DEP’T OF THE INTERIOR, NAT’L PARK SERV., NATIONAL REGISTER OF HISTORIC

PLACES INVENTORY—NOMINATION FORM (1981),

http://pdfhost.focus.nps.gov/docs/NRHP/Text/82002081.pdf [hereinafter NOMINATION FORM].

2 First Baptist Church (Addition to); Third Avenue at Monroe; 1948, ARIZ. MEMORY

PROJECT, http://azmemory.azlibrary.gov/cdm/ref/collection/pmhbd/id/353 (last visited Sept. 26,

2014). The Arizona Memory Project website has sixteen sheets of digitized blueprint drawings of

the addition. See id. While these drawings were prepared in connection with an addition, they

contain details of the front elevation, front window, and main entry of the church structure. See id.

3 See NOMINATION FORM, supra note 1. The first floor’s plan for the church is shown on the

last page of the nomination form. Id.

4 Robrt L. Pela, Majestic Ruins: Phoenix’s First Baptist Church and More, PHOENIX NEW

TIMES, May 3, 2012, available at http://www.phoenixnewtimes.com/2012-05-03/culture/phoenix-

s-first-baptist-church-surrounded-by-constant-change/full/.

5 NOMINATION FORM, supra note 1. “Moderne” describes certain styles of architecture

popular from 1925 through the 1940s; it has expression in styles traditionally classified as Art

Deco, Streamlined Moderne, and WPA Moderne. For descriptions of these styles, see generally

ROBERT M. CRAIG, ATLANTA ARCHITECTURE: ART DECO TO MODERN CLASSIC, 1929-1959, at

17–23 (1995). The church has a porthole window and less filigree. See FLICKR,

http://www.flickr.com/search/?q=First+Baptist+Church+Phoenix (last visited Sept. 26, 2014).

http://en.wikipedia.org/wiki/Phoenix,_Arizona

http://en.wikipedia.org/wiki/Fitzhugh_%26_Byron

http://en.wikipedia.org/wiki/George_Merrill

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102 Q U I N N I P I A C L A W R E V I E W [Vol. 32:nnn

incorporating an auditorium with a stage.6 Its congregation relocated six

miles north during 1968.7 First BC was placed on the federal National

Register of Historic Places (“NRHP”) on February 8, 1982.8

Thirty years after its historic designation, First BC is a useless ruin.9 In

its present disrepair,10

First BC is not preserved, unless “preservation”

means leaving the main structure windowless and vulnerable to nature,

while accessible to determined thieves, vandals, and graffiti artists, along

with the occasional tourist.11

Owned today by the Housing Opportunity

Center, an Arizona non-profit,12

this church is a poster child for

“landmarking” without forethought, promoting urban blight through the

ravages of vandalism, arson, and squatting. In our secular society, unless the

NRHP listing is removed or First BC is adaptively repurposed or

demolished soon, this 20,000 square foot,13

four story main building with a

6 See NOMINATION FORM, supra note 1.

7 Id.

8 See id. At the time of the placement of First BC on the register, its owner was H.A.V.C.

Partnership. See id. This partnership consisted of a Phoenix Suns’s professional basketball player

and several Arizona real property developers. See CERTIFICATE OF GENERAL PARTNERSHIP AND

FICTITIOUS NAME OF H.A.V.C. PARTNERSHIP, RECORDS OF MARICOPA COUNTY, ARIZ. (1980),

available at http://156.42.40.50/UnOfficialDocs2/pdf/19800106325.pdf.

9 See Pela, supra note 4.

10The building has no roof atop about 75% of its span, and the windows, including a “rose”-style

stained glass window that would have been located on the second story level, are missing from

their frames. See id.; see also FLICKR, supra note 5. The church interior was gutted by fire in

January, 1984. See Hanson v. Commercial Union Ins. Co., 723 P.2d 101, 102 (Ariz. App. 1986).

The fire damage to the roof over the original sanctuary was not repaired, nor its roof replaced, in

the past thirty years. See Pela, supra note 4. Video of the property’s interior is connected to a

story by Brandon Hamilton, Architects Draft Ideas to Renovate 1929 Phoenix First Baptist

Church, ABC 15 ARIZONA Jan. 4, 2014, available at http://www.abc15.com/news/region-

phoenix-metro/central-phoenix/architects-draft-ideas-to-renovate-1929-phoenix-first-baptist-

church.

11

Plenty of photographs of First BC are readily available from Flickr. See FLICKR, supra

note 5. A reasonably current aerial view of First BC is available at Google Earth. See GOOGLE

EARTH, http://www.google.com/earth/ (last visited Sept. 26, 2014) (search “302 W Monroe St,

Phoenix, AZ”). A portion of the 1948 addition is occupied by Release the Fear, a non-profit health

and human services organization focusing on “youth life skills” development. See RELEASE THE

FEAR, http://www.releasethefear.org/ (last visited Sept. 26, 2014).

12

Editorial Staff, Adapt-A-Building, PHOENIX MAG., Sept. 2010, at 28, available at

http://web.archive.org/web/20100825173901/http://www.phoenixmag.com/lifestyle/valley-

news/201009/adapt-a-building/2/.

13

See NOMINATION FORM, supra note 1.

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seven story bell tower,14

situated on 20,625 square feet of land,15

faces

vacancy and continued dilapidation into the twenty-second century.

First BC has little present utility and few future prospects in its current

condition; the main structure continues to buckle. Such neglect desecrates

the church and its designation as a heritage property.16

The property is

marooned; the current expense of major renovation for a purposeful use

cannot be borne by a non-profit without a bequest from a naive donor

cherishing a damaged relic. It has scant potential as church, its condition

aside, because increasingly fewer young Americans are “churched.”17

There

is no reliable marketing evidence that renters desire to occupy a building for

housing or commercial purposes because it looks like a former church.

When historic preservation of vacant buildings lacks any “repurposed

implementation strategy,” a doom similar to First BC awaits designated

properties.18

This paper addresses the duality of development objectives

14

Id.

15

Property Information, MARICOPA CNTY ASSESSOR’S OFFICE,

http://mcassessor.maricopa.gov/?s=112-20-079-C (last visited Sept. 26, 2014).

16

Forthrightly, persons affiliated with First BC’s owner have contemplated its potential

future uses, including housing; but happy thoughts (i.e. “[i]t’s one of the great undeveloped

treasures of Downtown” ”, see id.; or “the ruins give off a romantic and charming vibe making the

future still very bright,” see Hamilton, supra note 10) do not a strategy for sustainable utility

create. See Editorial Staff, supra note 12, at 28 (internal quotation marks omitted). The proposed

use in the Phoenix Magazine article duplicates existing entertainment venues located within

blocks of First BC. See id. But the proposed use is not achievable on a cost-effectiveness basis

without philanthropic support measured in the hundreds of thousands of dollars, merely to shore

up the structure from the ravages of neglect. Maintenance work in the First BC interior began

during the first week of November, 2014, for a rumored opening as a garden and “events venue”

in 2015, see Nadine Arroyo Rodriguez, Did You Know: Historic Church Under Renovation for

2015, 91.5 KJZZ Aug. 8, 2015, available at http://kjzz.org/content/40795/did-you-know-historic-

church-under-renovation-2015.

17

See DAVID T. OLSON, THE AMERICAN CHURCH IN CRISIS: GROUNDBREAKING RESEARCH

BASED ON A NATIONAL DATABASE OF OVER 200,000 CHURCHES 16 (2008).

18

Government agencies themselves are miscreants in the preservation department. See, e.g.,

Ashley Southall, V.A. Is Faulted over Landmarks’ Condition, N.Y. TIMES, Nov. 8, 2013, at A22,

available at http://www.nytimes.com/2013/11/08/us/va-is-faulted-over-deterioration-of-

landmarks.html?_r=0. Readers should not infer the author’s singular dislike of one property type

as historic assets. In the same year First BC was NRHP-listed, the San Marcos Hotel in downtown

Chandler, Arizona, received like designation. See Weldon B. Johnson, ‘Jewel in the Desert’

Glittering Again in Downtown Chandler, ARIZ. REPUBLIC (Jan. 5, 2014, 8:35 AM),

http://www.azcentral.com/community/chandler/articles/20140105chandler-san-marcos-hotel-

anniversary.html. This landmark property remained boarded up between 1980 and 1987 because

its owners were unable to raise funds to renovate and operate the hotel. See id. Just lately has the

hotel’s fortunes improved. See id.

Historic notoriety promises nothing for an asset’s utility in urban revitalization, and bad

planning is seldom affected by an asset’s original use or its owners’ good intentions. San



balanced with the protection of historic assets in delivering high-quality

built environments, along with meeting seemingly disparate goals of

enhancing community sustainability while maintaining iconic urban places.

As the fiftieth anniversary of the National Historic Preservation Act

(“NHPA”) approaches in 2016,19

I propose better integration of preserving

structural historical assets with the host planet. This paper argues that

historic preservation must do far more than “preserve visual treasures.”

Failure to accommodate both preservation virtues dooms neglected historic

properties to “structural relics” status, awaiting demolition while locals,

aware of their dilapidation, stay clear.20

Preservationists in the private and

public sectors must frame preservation strategies, joining the past, present,

and future of municipal development and infusing sustainability into

designated properties. Historic assets that have transcended their original

purposes can be useful and sustainable.21

Repurposing these parcels triggers

Antonio’s S.H. Kress & Co. department store, built in 1938, is a fixture on the city’s vaunted,

historic Houston Street; this building was vacant between the early 1990s and late 2010, when one

restaurant occupied the ground floor of this 168,000 square foot building. See Benjamin Olivo,

Plans, no details, for Kress building, THE DOWNTOWN BLOG (Feb. 26, 2010),

http://blog.mysanantonio.com/downtown/2010/02/plans-no-details-for-kress-building/; see also

Federal Realty Begins Restoration of Historic Kress Building and Welcomes Texas de Brazil to

Houston Street, PR NEWSWIRE (May 10, 2010), http://www.prnewswire.com/news-

releases/federal-realty-begins-restoration-of-historic-kress-building-and-welcomes-texas-de-

brazil-to-houston-street-93266799.html.

19

See National Historic Preservation Act of 1966, Pub. L. No. 89-665, 80 Stat. 915.

20

Protracted vacancies in all types of buildings contribute to urban blight, regardless of their

owners’ best intentions. Yet attempts at private citizen intervention to curb blight lead to

controversy and litigation arising from trespass and vandalism. See, e.g., Kris Maher, Foes of

Urban Blight Take Aim at Landlords, WALL ST. J., Jan. 3, 2014,

http://online.wsj.com/news/articles/SB10001424052702303640604579298510595796766

(describing community endeavors to “call out” abandoned building owners using social media and

to create public art on abandoned buildings, as well as noting owner backlash in Baltimore).

21

In the private sector, there has been some movement to seek some common ground

between preservationists and “green building” advocates, groups at cross-purposes until recently.

See JEAN CARROON, SUSTAINABLE PRESERVATION: GREENING EXISTING BUILDINGS 55 (2010).

In 2006, at the National Preservation Conference in Pittsburgh, hosted by the National Trust for

Historic Preservation, a summit of professionals in preservation and green building communities

attempted to formulate common goals for greening historic properties. See Kim A. O’Connell,

Finding Common Ground, TRADITIONAL BUILDING (June 2007), http://www.traditional-

building.com/Previous-Issues-07/JuneFeature07.htm. The major stumbling block today is that

assessment guidelines for LEED certification contemplate new construction, leaving just 11 of 69

points specifically applying to adaptive reuse of buildings. See id. Failure to consider the unique

characteristics of historic structures continues to be a source of discord between the two camps.

See id. For more information regarding the LEED, see generally U.S. GREEN BLDG. COUNCIL,

GREEN BUILDING RATING SYSTEM: FOR NEW CONSTRUCTION AND MAJOR RENOVATIONS

(LEED-NC) (2002), available at http://www.usgbc.org/Docs/LEEDdocs/LEED_RS_v2-1.pdf.



improvements to the quality of neighborhood life, while modestly satisfying

those who feel a need to control inauthentic uses of heritage tracts. Historic

preservation today must contribute to urban centers’ livability.

Sustainability is aided when preservationists partner with sustainability and

economic development promoters of revitalization initiatives in central

business districts.22

Some critics opine that America’s major cities already have designated

most of the extant significant historic buildings of the twentieth century and

prior, so city landmarks commissions today endeavor to save from

destruction far fewer genuinely precious buildings and other structures,

along with putative heritage-worthy districts.23

Celebrated urban geographer

Jane Jacobs would disagree vigorously that designation of old buildings

wastes these resources.24

Jacobs believed that to withstand urban self-

destruction, a supply of diversified, lively, and economically viable

neighborhoods or enclaves must increase incrementally to meet

continuously growing demand.25

Therefore, a wholly-sufficient reason for

ongoing preservation action is to “zone for diversity,” curbing redundancy

of the most profitable (hence, duplicated) uses that are diminishing

neighborhoods’ curb appeal.26

Channeling Jacobs’s views, perhaps, groups

continue efforts to save historic properties in urban areas, including through

crowd-sourcing preservation initiatives.27

No matter one’s justifications for

22

See CIVICVISIONS LP, ICONS, PLACEHOLDERS & LEFTOVERS: MIDTOWN EAST REPORT 22

(2013), available at http://midtown21c.org/files/2013/02/Icons-Placeholders-Leftovers-Midtown-

East-Report1.pdf (intelligently discussing the topic of landmark preservation juxtaposed to the

process of “creative fission” (transformative development activity)); see also Nat’l Bldg. Museum,

Historic Preservation Vs. Sustainability?, YOUTUBE (Mar. 23, 2012),

https://www.youtube.com/watch?v=awFBEQawGDs.

23

See CIVICVISIONS LP, supra note 22, at 19–21. 24

See JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES 187–88 (Vintage

Books ed. 1992).

25

See id. at 255–56.

26

Id. at 252–53.

27

See PARTNERS IN PRESERVATION, http://partnersinpreservation.com/ (last visited Sept. 26,

2014). Each year, Partners in Preservation nominates historic and cultural monuments from a pool

of applicants in a major United States city or metro area and asks the public to vote on finalists to

receive corporate rehabilitation funding. See FAQ, PARTNERS IN PRESERVATION,

http://partnersinpreservation.com/faq/#.VCb-UfldUXU (last visited Sept. 26, 2014). In 2012,

Partners in Preservation selected 40 sites in New York City, ranging from the Lower East Side

Tenement Museum, to the Greenpoint Manufacturing and Design Center, to the 1964 World’s Fair

Rocket Thrower, as nominees for funding. See New York City 2012, PARTNERS IN PRESERVATION,

http://partnersinpreservation.com/new-york/#.Usw6D8KA384 (last visited Sept. 27, 2014). The

four sites with the most votes received full funding and an advisory committee decided how to

distribute the remaining money. See id. In 2013, thirteen historic places in Washington, D.C.,



landmark listing, however, for many owners of “dated” buildings, historic

designation is “more curse than blessing,” due to the regulatory implications

of listing.28

Historic designation of entire enclaves increasingly impacts

densification of urban cores by constructing new and taller development.29

To some degree, this unproductively exploits the nation’s landmarks-

designation laws30

with devastating economic, social, and environmental

impacts because of slowing necessary densification, development of urban

cores,31

and accompanying business expansion and job growth.

Describing how preservation proceeds along a more enlightened path,

this paper proceeds as follows. In Part II, I summarize the roles of

governments (at all levels) and private parties in employing “historic

places” registers. In Part III, I trace briefly the evolution of preservationist

philosophies and their lingering impacts on development trends in urban

cores, as well as how urban planning specialists assess effects upon urban

growth of registering properties on historic lists.32

Part IV argues for the

utility of adaptive reuse through repurposing designated buildings without

stripping their historic essences. In Part V, I illustrate an adaptive reuse

model that allows urban centers to redeploy historic assets in establishing

livable mixed-use urban villages. Part VI argues for new paradigms of

urban historic preservation in which benchmarks of success in sustainability

and utility become vital metrics in heritage conservation. This paper

concludes by advocating new methods for resonating historic preservation

with urban-center economic growth and community sustainability goals.

Maryland, and Virginia received grants by popular demand. See Washington, D.C. 2013,

PARTNERS IN PRESERVATION, http://partnersinpreservation.com/dc-metro/#.Usw6P8KA384 (last

visited Sept. 27, 2014).

28

VISHAAN CHAKRABARTI, A COUNTRY OF CITIES: A MANIFESTO FOR AN URBAN

AMERICA 139 (2013) [hereinafter A COUNTRY OF CITIES]. See also Vishaan Chakrabarti, Building

Hyperdensity and Civic Delight, THE DESIGN OBSERVER GROUP (June 13, 2013),

http://places.designobserver.com/feature/a-country-of-cities-building-hyperdensity/37899/.

29

See K. AL-KODMANY & M.M. ALI, THE FUTURE OF THE CITY: TALL BUILDINGS AND

URBAN DESIGN 67–72 (2013); see also A COUNTRY OF CITIES, supra note 28, at 139, 143; Jess R.

Phelps, Moving Beyond Preservation Paralysis? Evaluating Post-Regulatory Alternatives for

Twenty-First Century Preservation, 37 VT. L. REV. 113, 134–41 (2012).

30

A COUNTRY OF CITIES, supra note 28, at 139, 143.

31

See id. at 143, 145.

32

Compare EDWARD GLAESER, TRIUMPH OF THE CITY: HOW OUR GREATEST INVENTION

MAKES US RICHER, SMARTER, GREENER, HEALTHIER, AND HAPPIER 11–12, 135–36, 161–63,

260–64 (2011) (arguing that historic preservation and bureaucracy should not prevent modern

growth), with J. Peter Byrne, Historic Preservation and Its Cultured Despisers: Reflections on the

Contemporary Role of Preservation Law in Urban Development, 19 GEO. MASON L. REV. 665

(2012) (critiquing Glaeser for exaggerating the effect of preservation laws, among other things).



II. PRESERVATION REGISTRY PROGRAMS AFFECTING URBAN HISTORIC

PROPERTIES

A. Federal Engagement in Historic Preservation

The United States first enacted legislative protections to preserve

historical and cultural resources more than a century ago.33

The Antiquities

Act, passed in 1906,34

prohibited the unlicensed appropriation, excavation,

injury, or destruction of any historic or prehistoric ruin, monument, or

object of antiquity belonging to the federal government or controlled by the

United States without the federal government’s permission.35

In 1935,

Congress enacted the Historic Sites, Buildings, and Antiquities Act,36

legislation declaring that historic preservation was a national priority.37

This

Act provided the federal government with limited ability to preserve

buildings and historic sites of “national significance.”38

In 1966, Congress

passed the National Historic Preservation Act (“NHPA”).39

Of preservation

laws currently in force, the NHPA’s Section 106 process provides the most

extensive federal protection for qualified cultural and historic resources.40

The NHPA declares that “the historical and cultural foundations of the

United States should be preserved as a living part of our community life and

development in order to give a sense of orientation to the American

people . . . .”41

The NHPA established the NRHP, which lists resources,

including buildings, structures, districts, and other objects, “significant in

American history, architecture, archaeology, engineering, and culture.”42

The NRHP theoretically intends to be a “planning tool”43

to identify

properties significant enough to warrant consideration in federal decision-

33

See 16 U.S.C. §§ 431–433 (2012).

34

Id.

35

Id.

36

See 16 U.S.C. §§ 461–467 (2012).

37

See JOHN J. CULLINANE, MAINTAINING AND REPAIRING OLD AND HISTORIC BUILDINGS

50 (2013).

38

36 C.F.R. § 60.1(b)(2) (2015).

39

National Historic Preservation Act of 1966, Pub. L. No. 89-665, 80 Stat. 915 (codified as

16 U.S.C. §§ 470–470x-6 (2012)).

40

See John M. Fowler, The Federal Preservation Program, in RICHER HERITAGE: HISTORIC

PRESERVATION IN THE TWENTY-FIRST CENTURY 35, 45 (Robert E. Stipe ed., 2003) (referring to

the NHPA as “the centerpiece of federal protection for historic properties”).

41

National Historic Preservation Act § 1(b).

42

16 U.S.C. § 470a(a)(1)(A) (2012).

43

36 C.F.R. § 60.2(a) (2015).



making about future development.44

The process for identifying eligible properties and listing them on the

NRHP is governed by federal regulations45

defining types of properties

eligible for listing, including individual buildings, other structures, and

entire “districts” of property.46

A property eligible for listing on the NRHP

hypothetically must affect the American people in ways rendering it as a

resource above similar other properties deserving federal protection.47

The

eligibility process follows an inquiry into whether the property has inherent

historical and cultural significance:48

The quality of significance in American history, architecture, archeology,

engineering, and culture is present in [the properties] . . . that possess integrity of

location, design, setting, materials, workmanship, feeling, and association and

(a) that are associated with events that have made a significant contribution to

the broad patterns of our history; or

(b) that are associated with the lives of persons significant in our past; or

(c) that embody the distinctive characteristics of a type, period, or method of

construction, or that represent the work of a master, or that possess high artistic

values, or that represent a significant and distinguishable entity whose components

may lack individual distinction; or

(d) that have yielded, or may be likely to yield, information important in

prehistory or history.49

The NRHP is a broadly inclusive inventory of properties maintained

by the National Park Service, meeting eligibility requirements of

significance and property type.50

Historic preservation officers at the state,

44

See id.

45

See 36 C.F.R. § 60.4 (2015) (establishing NRHP criteria for determining designation

eligibility).

46

Id.

47

See id.

48

See Exec. Order No. 11,593, 36 Fed. Reg. 8,921 (1971).

49

36 C.F.R. § 60.6 (2015).

50

Doreen M. Pulley & Elwin C. Robison, Emergency Repairs for Historic Façades, in

BUILDING FAÇADE MAINTENANCE, REPAIR, AND INSPECTION 91, 98 (Jeffrey L. Erdly & Thomas

A. Schwartz eds., 2004). A not well-understood fact: this listing is an honorary status with only

federal tax credit “leverage” over the private owner’s decisions regarding whether and how to

preserve, rehabilitate, or renovate a listed property at the federal level. Id. The listing status of a

building may be revoked if inappropriate alterations are implemented. Id. Except for the private

owner’s federal (and perhaps state) tax credit jeopardy, de-listing of a property has little impact on

the owner beyond the “loss of face” in the historic preservation community. See id. Demolition of

the improvements, however, may trigger local inputs and decision-making. See Fowler, supra note

40, at 44; see also Akram Ijla et al., Historic Designation and the Rebuilding of Neighborhoods:

New Evidence of the Value of an Old Policy Tool, 4 J. URBANISM 263, 265 (2011). NHPA is



tribal, and sometimes local government levels conduct research to identify

and nominate properties to the NRHP based on the criteria set forth in the

NHPA and Park Service regulations.51

In the case of First BC, Janus

Associates, a private firm, was contracted by H.A.V.C. to prepare the

NRHP nomination form.52

Disturbingly, in the present day, Janus architects

in 1982 described First BC’s physical condition as “excellent.”53

B. State and Local Engagement in Historic Preservation

Engaging Historic Preservation Officers at the state level in NHPA

activities spawned growth of state and local laws and regulations governing

protection, if not preservation, of additional historic assets.54

The original

states comprising the original thirteen colonies were among early promoters

of such legislation: Massachusetts passed conservation restriction

legislation in 1969,55

followed by Connecticut in 1971.56

The Uniform

Conservation Easement Act (“UCEA”), drafted by the National Conference

of Commissioners on Uniform State Laws and approved by the American

Bar Association in 1981, provides a framework for many states’

conservation easement legislation.57

The UCEA expressly provides that

conservation easements may be modified by their holders (grantees) or

terminated by mutual agreement of the parties, and otherwise provide for

easement administration.58

All fifty states provide preservation services

arising directly from federal preservation programs authorized under the

National Historic Preservation Act (“NHPA”), such as nomination of

properties for inclusion in the NRHP, consultation with federal agencies

“invoked” for protection of historic assets through Section 106 of that Act only if federal

undertakings involve NRHP listed or eligible properties. See SHERRY HUTT ET AL., CULTURAL

PROPERTY LAW: A PRACTITIONER’S GUIDE TO THE MANAGEMENT, PROTECTION, AND

PRESERVATION OF HERITAGE RESOURCES 6 (2004); Fowler, supra note 40, at 45–46.

51

HUTT ET AL., supra note 50, at 6–7.

52

See NOMINATION FORM, supra note 1.

53

Id.

54

See Fowler, supra note 40, at 42–43.

55

See MASS. GEN LAWS ANN. ch. 184, § 31 (West 2003).

56

See CONN. GEN. STAT. § 47-42a–47-42d (2013).

57

Jessica E. Jay, Third-Party Enforcement of Conservation Easements, 29 VT. L. REV. 757,

759–60 (2005); see also NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS, UNIFORM

CONSERVATION EASEMENT ACT (1981), available at

http://www.cals.ncsu.edu/wq/lpn/PDFDocuments/uniform.pdf.

58

See Jessica E. Jay, When Perpetual is Not Forever: The Challenge of Changing

Conditions, Amendment, and Termination of Perpetual Conservation Easements, 36 HARV.

ENVTL. L. REV. 1, 26–31 (2012).



regarding actions affecting properties listed (or eligible for listing) in the

NRHP, and review of applications for federal rehabilitation tax credits and

associated benefits.59

States foster the protection of historic properties through their own

laws and programs by maintaining state registers,60

appropriating funds to

preserve public buildings, protecting private properties from potentially

harmful governmental actions, and authorizing adoption of local

preservation ordinances, easement programs, and rehabilitation tax

incentive programs.61

The State Historic Preservation Office (“SHPO”) is

the key agency responsible for identifying and protecting historic and

cultural resources in the United States.62

Because it intersects nearly every

heritage preservation program in the United States, whether governmental

or private action is involved, a SHPO often is the agency that individuals,

organizations, or government officials with preservation issues are most

likely to encounter.63

In addition, nearly all states have enacted laws providing local

governments with authority to adopt and implement similar ordinances.64

59

See Fowler, supra note 40, at 48, 61. These credits are described in the Economic

Recovery Tax Act of 1981, which generally replaced the rehabilitation tax incentives under earlier

laws, beginning January 1, 1982, with a 25% investment tax credit for rehabilitations of historic

commercial, industrial, and residential buildings. See 36 C.F.R. § 60.2 (2015); see also Treas. Reg.

§ 1.48-12 (2012). This can be combined with a fifteen-year cost recovery period for the adjusted

basis of the historic building. 36 C.F.R. § 60.2 (2015). These opportunities are codified in the

Internal Revenue Code. See, e.g., I.R.C. §§ 38, 280B (2012).

60

For example, in the State of California, designation occurs through the California Register

of Historical Resources (CRHR), which is maintained by the State Historical Resources

Commission. See California Register, CAL. STATE PARKS,

http://ohp.parks.ca.gov/?page_id=21238 (last visited Sept. 27, 2014). California also has a roster

of “California Historical Landmarks” and “Points of Historical Interest.” See California Historical

Landmarks, CAL. STATE PARKS, http:/ohp.parks.ca.gov/?page_id=21387 (last visited Sept. 27,

2014); see also California Points of Historical Interest, CAL. STATE PARKS,

http:/ohp.parks.ca.gov/?page_id=21750 (last visited Sept. 27 , 2014); CAL. PUB. RES. CODE §

21084–21084.1 (West 2014). In the State of Arizona, the State Historic Preservation Officer

maintains an Arizona Register of Historic Places under legislation passed in 1974. See ARIZ.

STATE PARKS, FINAL ARIZONA STATE HISTORIC PRESERVATION PLAN UPDATE 81 (2009),

available at http://azstateparks.com/SHPO/downloads/SHPO_Plan_2009_Final.pdf. From its

inception, the Arizona Register’s listing was conceived as a lower-status designation, suited for

properties having less historic significance than those on the NRHP. See id.

61

See Elizabeth A. Lyon & David L.S. Brook, The States: The Backbone of Preservation, in

RICHER HERITAGE: HISTORIC PRESERVATION IN THE TWENTY-FIRST CENTURY, supra note 40, at

81, 86.

62

See id. at 82–87.

63

See id. at 83.

64

See Sandra G. McLamb, Preservation Law Survey 2001: State Preservation Law, 8

http://www.preservationnation.org/information-center/law-and-policy/legal-resources/preservation-law-101/federal-law/national-register.html



Some local governments have successfully relied on broad grants of

authority to enact preservation ordinances;65

the initial ordinance of this

kind was adopted in Charleston, South Carolina, in 1931.66

Other so-called

“Dillon Rule” states, such as the Commonwealth of Virginia, where a local

jurisdiction’s authority must be express, require detailed authority to be

provided.67

Illustrations of such explicit enabling laws are those of

Indiana,68

Maryland,69

and North Carolina.70

On the local level, municipalities or counties establish historic

preservation officers and, frequently, commissions that recommend to the

community’s legislative body the listing of a property or district upon a

municipal roster of “landmarks,” “historic sites,” or the like.71

For example,

in New York City, buildings are identified for their special character and

worthiness for preservation by the eleven-member Landmarks Preservation

Commission.72

Their uniqueness and worthiness for preservation are

confirmed for listing, or rejected, by the City Council.73

In addition, some

historic preservation is incorporated into municipal codes as a form of

zoning overlay district or adaptive reuse ordinance, which is the case, for

example, in Los Angeles74

and Phoenix.75

WIDENER L. SYMP. J. 463, 464 (2002).

65

See, e.g., A-S-P Assocs. v. City of Raleigh, 258 S.E.2d 444, 448–50 (1979); CHINO, CAL.,

CODE title 8, §§ 8.60.050–8.60.270 (2013), available at

http://library.municode.com/index.aspx?clientId=16002; LAGUNA BEACH, CAL., CODE §§

25.45.002–25.45.014 (2014), available at http://qcode.us/codes/lagunabeach/.

66

See NORMAN TYLER, HISTORIC PRESERVATION: AN INTRODUCTION TO ITS HISTORY,

PRINCIPLES, AND PRACTICE 39 (2000).

67

See Local Government Authority, NAT’L LEAGUE OF CITIES, http://www.nlc.org/build-

skills-and-networks/resources/cities-101/city-powers/local-government-authority (last visited

Sept. 27, 2014). Most non-home rule states (39 of them) apply the principle known as “Dillon’s

Rule” to determine the bounds of a municipal government’s legal authority; in those jurisdictions,

municipalities must ask permission of the state or commonwealth legislature to pass local

legislation. See id. By contrast, in home rule states, an amendment to the state constitution grants

cities, municipalities, and/or counties the ability to pass laws to govern themselves as they see fit

(so long as they obey the state and federal constitutions).

68

See IND. CODE ANN. §§ 36-7-11-1–36-7-11-22 (LexisNexis 2009).

69

MD. CODE ANN. §§ 8.101–8.501 (LexisNexis 2010).

70

N.C. GEN. STAT. ANN. §§ 160A-400.1–160A-400.14 (West 2000).

71

See McLamb, supra note 64, at 468–69 (discussing the role of state historic preservation

officers in local matters).

72

About the Landmarks Preservation Commission, NYC LANDMARKS PRES. COMM’N,

http://www.nyc.gov/html/lpc/html/about/about.shtml (last visited Sept. 27, 2014).

73

See, e.g., Winnie Hu, Council Poised to Intervene on Enclave’s Landmark Status, N.Y.

TIMES, Mar. 25, 2006, at B.1, available at

http://www.nytimes.com/2006/03/25/nyregion/25fieldston.html?pagewanted=print&_r=0.

74

See L.A., CAL., CODE § 12.20.3. Similarly, the Old and Historic District, the Old City



Local designation typically mandates that an owner obtain a

“certificate of appropriateness” or a demolition permit from a locally

appointed body when removing portions of a structure, or making

alterations or additions to the designated asset.76

Often, specific guidelines

specify what is permitted in modifying a structure’s exterior design,

construction materials, paint colors and shapes, styles and locations of

windows, doors, external lighting fixtures, and barricades like fences and

walls.77

In some cities, designation requires that specific levels of

maintenance and restoration be performed at the owner’s expense.78

Local

review of proposed changes (including review of the owner’s wholesale

demolition of the property improvements) by persons acquainted with the

neighborhood environment deters disruption of the local community’s

historic fabric.79

Therefore, local designation carries the greatest potential

for historic assets’ protection.80

C. The Nature of Preservation Restrictive Covenants/Easements

A basic approach to thinking about historic preservation restrictions is

to view them as negative easements. In effect, instruments documenting

negative easements contain the landowner’s promises to not exercise certain

property rights otherwise available because of the landowner’s conveyance

of those rights to another party, whether it be a government agency or a

non-governmental organization like a “land trust.”81

Two primary types of

negative easements are the façade easement and the conservation

District, and the Old City Height Districts are three overlay zoning districts defined in

Charleston’s zoning ordinance. See CHARLESTON, S.C., ZONING ORDINANCES art. 2, part 6, §§

54-230–54-249, available at https://library.municode.com/index.aspx?clientId=14049; see also

Matthew A. Young, Adapting to Adaptive Reuse: Comments and Concerns About the Impacts of a

Growing Phenomenon, 18 S. CAL. INTERDISC. L.J. 703, 703 (2009).

75

See PHX., ARIZ., ZONING ORDINANCE ch. 5, §507 TAB A(K)(2)), available at

http://www.codepublishing.com/az/phoenix/ (“[H]istorically significant buildings and their related

landscape setting should be retained and restored, or put to adaptive reuse . . . .”).

76

See Ijla et al., supra note 50; see also Katherine Ridley & Mark Silberman, Certificates of

Appropriateness; Changes Requiring Certificate—Criteria; Compatibility with Historic

Character, 9A N.Y. PRAC., ENVTL. L. & REG. IN N.Y. § 14:46 (2d ed. 2013).

77

See Christine Kreyling, Something Old Something New, 72 PLANNING 34, 34–39 (2006).

78

See, e.g., Paul K. Asabere & Forrest E. Huffman, Real Estate Values and Historic

Designation, ILL. REAL EST. LETTER 11, 12 (1995).

79

See Ijla et al., supra note 50.

80

See id.

81

See Kepple v. Dohrmann, 141 Conn. App. 238, 249 (2013).



easement.82

In the case of the former, the owner is prohibited from

demolishing or altering the exterior of an historic building without the

easement grantee’s prior consent.83

This easement does not affect the

owner’s use of the building or, usually, the owner’s prerogatives where the

interior is concerned.84

A property’s placement on the NRHP ensures that

the National Park Service will have, for so long as a property is on the

register, a façade easement.85

In a typical conservation easement, the

historic property owner agrees to both limit the use of the property and

preserve a structure’s outward appearance.86

Conservation easements

typically are subject to some negotiation; while all development is not

prohibited, development that would alter the character of the property’s

historic context is limited.87

Sometimes, a conservation easement is used

merely for preserving a private property’s open space along roadways or in

cluster developments.88

In summary, the private landowner does not part with ownership rights

but creates in the “dominant estate,” however defined in the instrument, a

privilege to enjoy or restrict that owner’s use of its property, which becomes

the “servient estate” under the instrument.89

Of course, lasting in perpetuity,

such easement’s benefits and burdens pass with any conveyance affecting

the servient or the dominant property, whatever the case may be.90

Notably, no federal, state, or local law or regulation categorically

prohibits demolishing heritage resources.91

Prohibiting demolition

altogether without the property owner’s prior consent constitutes either ultra

82

Id. at 248.

83

Id.

84

Id. The logic of this type of easement is simple; historic (due to age) residences built

without kitchens or lavatories seldom would appear on registers if their owners were relegated to

use of “out buildings” in the colder climates or seasons for ablutions, food preparation, and other

bodily functions.

85

See Preservation Easements, NAT’L TRUST FOR HISTORIC PRES.,

http://www.preservationnation.org/information-center/law-and-policy/legal-

resources/easements/#.U1GhzVxR5G4 (last visited Sept. 27, 2014); see also NAT’L PARK SERV.,

EASEMENTS TO PROTECT HISTORIC PROPERTIES: A USEFUL HISTORIC PRESERVATION TOOL

WITH POTENTIAL TAX BENEFITS (2010), available at http://www.nps.gov/tps/tax-

incentives/taxdocs/easements-historic-properties.pdf.

86

See Kepple, 141 Conn. App. at 248.

87

See id. at 249.

88

Id.

89

See id.

90

Kepple, 141 Conn. App. at 249–50.

91

Douglas B. Aikins, Demolition of Historic Structures; CEQA Compliance and Tactics, 30

CAL. REAL PROP. J. 19, 19 (2012).



vires action by the government or a regulatory taking requiring just

compensation—although cases invalidating historical preservation

regulations are fewer since the U.S. Supreme Court in 1978 decided Penn

Central.92

Communities deal with demolition in many instances, however,

by requiring the owner of the historically-designated property to obtain a

demolition permit, following one or more public hearings in which

advocacy frequently affords opposing viewpoints on the salvage potential of

the project.93

III. PRESERVATION PHILOSOPHIES’ IMPACTS ON HISTORIC ASSETS’

USAGE IN AMERICAN URBAN CENTERS

Having described the basic tools of historic preservation, I now

summarize preservation advocates’ philosophies throughout our nation’s

history. Several land use scholars have identified three phases of

preservation thought and action in American life: monumentalism,

aestheticism, and revitalization. Professor Carol Rose was among the first to

detail the three phases (or primary preservation philosophies) in a 1981

article entitled Preservation and Community: New Directions in the Law of

Historic Preservation.94

A. Monumentalists’ Era

Monumentalists, early advocates of preserving historic assets, have

been labeled collectively as persons exhibiting an “elite assertiveness of a

class- and ethnicity-based traditionalism.”95

“Monumentalists, who focused

92

Id.; see Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 138 (1978).

93

See Aikins, supra note 91, at 19–20 (describing the historical preservation ordinance

procedures of a handful of California municipalities); see also Historic Preservation Commission,

CITY & COUNTY OF S.F. PLANNING DEP’T, http://www.sf-

planning.org/index.aspx?page=1892#expect (last visited Sept. 27, 2014).

94

See generally Carol M. Rose, Preservation and Community: New Directions in the Law of

Historic Preservation, 33 STAN. L. REV. 473 (1980). Professor Rose’s third phase is somewhat

different than that identified here; hers identifies the virtue of assessing a building’s, structure’s, or

district’s importance to the community. See id. at 490–91. Thus, the central direction of this last

phase is community building, in which the larger perspective is that of community needs. See id.

This author’s defined third philosophy presumes urban revitalization is the more consequential

perspective; in downtown redevelopment, as a function of sustainability and economic

empowerment, effective but thoughtful adaptive reuse is the primary community need in

management of historic assets. See id. at 512–17.

95

MICHAEL HOLLERAN, BOSTON’S “CHANGEFUL TIMES”: ORIGINS OF PRESERVATION &

PLANNING IN AMERICA 9 (1998) (footnote omitted); see Todd Schneider, From Monuments to



on sites associated with the Founding Fathers, worked primarily to save

opulent mansions that had once housed the rich and powerful.”96

Monumentalists themselves were usually part of the upper-class, having the

leisure to pursue preservation, whereas members of the working-class had

more immediate concerns.97

Later, monumentalists cautioned against the

prospect of historic buildings “passing into the hands of improper people,”98

typically immigrants. In this manner, the mission of preservation arose for

“informing foreigners and less enlightened natives as to American traditions

and values,” a view sometimes described as nativism.99

Because individual buildings were historical documents,

monumentalists believed they had the power, as heritage buildings’

observers, to order our knowledge of our past.100

By controlling which

historic structures were preserved and how they were presented to the

public, monumentalists consolidated their own elite status and identity.101

This phenomenon occurred singularly in the South in the 1930s, where

preservation focused upon the confederate states’ past and their elite.102

Farther north, the New York City Landmarks Preservation Commission had

designated one-hundred thirteen buildings by the 1970s, and one-hundred

five of these structures had been built by—and for—the wealthy.103

B. Aestheticists’Ascent

Aestheticists originally followed Charles Mulford Robinson, who

wrote that the first preservation priority was to save what is good and take

“no account of either sentiment or history, only of [structural]

aesthetics . . . .”104

Aligned with the City Beautiful movement beginning in

Urban Renewal: How Different Philosophies of Historic Preservation Impact the Poor, 8 GEO. J.

ON POVERTY L. & POL’Y 257, 263 (2001).

96

Schneider, supra note 95, at 263.

97

HOLLERAN, supra note 95, at 9.

98

Id. at 235 (footnote omitted; internal quotation marks omitted).

99

Id. at 234 (internal quotation marks omitted). Professor Carol Rose prefers to characterize

this attitude of preservation as “inspiration,” a way of fostering a sense of community. See Rose,

supra note 94, at 481–82.

100

See HOLLERAN, supra note 95, at 8–9.

101

See id. at 9.

102

See Briann Greenfield, Marketing the Past: Historic Preservation in Providence, Rhode

Island, in GIVING PRESERVATION A HISTORY: HISTORIES OF HISTORIC PRESERVATION IN THE

UNITED STATES 117, 118 (Max Page & Randall Mason eds., 2004); see also HOLLERAN, supra

note 95, at 266.

103

Henry G. Cisneros, Preserving Everybody’s History, in CITYSCAPE 85, 85 (1996).

104

HOLLERAN, supra note 95, at 162 (internal quotation marks omitted). This otherwise



the 1890s, which advocated expression of a city’s enduring civic and

cultural structure by preserving landmarks,105

Aestheticists created

preservation commissions in government bureaucracies across the country

that, even today, decide primarily on aesthetic grounds106

whether property

owners will be allowed to modify protected historic structures.107

Proposed

modifications to an historic neighborhood were (and still today, in many

communities, can be) halted, either fairly or unfairly, by invoking

preservation’s legal protections.108

One former chair of the New York City

Landmarks Preservation Commission complained about a “‘growing

tendency to use designation for purposes outside the law . . . [such as] to

maintain the status quo, [or] to prevent development . . . .’”109

With the passage of the NHPA, federal policy makers clearly chose the

pathway of aestheticism in providing governmental protections by

expanding the National Register of Historic Places (“NRHP”) and creating

a review process for federal actions affecting historic properties.110

The

NHPA concurrently required federal agencies to make use of historic

became understood to be preservation (and architectural control) for architectural merit alone. See

Rose, supra note 94, at 484.

105

HOLLERAN, supra note 95, at 161–63; WITOLD RYBCZYNSKI, CITY LIFE: URBAN

EXPECTATIONS IN A NEW WORLD 136–48 (1995).

106

See, e.g., Constance Epton Beaumont, Making Design Review Boards Work,

ARCHITECTURAL REC. 34 (1992) (discussing how a design review board makes its decisions based

on how well proposed changes “will harmonize with . . . existing architecture”).

107

See JULIA H. MILLER, A LAYPERSON’S GUIDE TO HISTORIC PRESERVATION LAW: A

SURVEY OF FEDERAL, STATE, AND LOCAL LAWS GOVERNING HISTORIC RESOURCE PROTECTION

9 (1997).

108

The “hammer” possessed by such review agencies is that if a contractor or developer’s

project is denied as “certified rehabilitation,” preservation tax credits are not available; in some

cases, exploiting those tax credits is the owner’s sine qua non for undertaking such projects. See

Jennifer Kuntz, A Guide to Solar Panel Installation at Grand Central Terminal: Creating a Policy

of Sustainable Rehabilitation in Local and National Historic Preservation Law, 10 VT. J. ENVTL.

L. 315, 331 (2009).

109

JOHN J. COSTONIS, ICONS AND ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL

CHANGE 30 (1989) (citation omitted); see Kenneth T. Jackson, Op-Ed., Gotham’s Towering

Ambitions, N.Y. TIMES, Aug. 30, 2013, at A19, available at

http://www.nytimes.com/2013/08/30/opinion/gothams-towering-ambitions.html (stating that the

landmark designation’s goal “seems to be to preserve anything that will maintain the streetscape,

whether or not the individual structures have significance. Entire blocks are frozen on the logic

that the first buildings ever put there are also the best that could ever be imagined there”).

110

See Schneider, supra note 95, at 261. This is the notorious “Section 106” consultation

process. See GrizCulturalHeritage, NHPA Section 106 Process.mov, YOUTUBE (May 17, 2012),

https://www.youtube.com/watch?v=UxJJ6MyMQeg. This movie takes the viewer on a tour of the

step-by-step process of assessing the consultation required under federal engagement with heritage

resources. See also HUTT ET AL., supra note 50, at 6.



buildings to “the maximum extent feasible,”111

foreshadowing William

Sumner Appleton’s adaptive reuse initiatives.112

But incremental ascent of a

revitalization philosophy has not muted aestheticists. Midtown Manhattan

preservationists, among other stakeholders,113

caused former Mayor

Michael Bloomberg’s office to withdraw, on November 12, 2013, its “East

Midtown Rezoning” plan to rezone a seventy-three block swath of east

midtown.114

That rezoning plan was “designed to spur the construction of a

new generation of bigger, state-of-the-art skyscrapers and in the process to

raise hundreds of millions of dollars for transit improvements in the [same

Midtown] area.”115

Preservationist stakeholders argued that destroying

“architectural gems” in the Grand Central neighborhood and others in East

Manhattan would result from the plan’s adoption.116

The City’s Municipal

Art Society and the New York Landmarks Conservancy submitted to the

city’s Landmarks Preservation and Planning Commissions a list of

seventeen buildings in Midtown East needing protection from

redevelopment.117

The fallout for availability, both of office inventory for

growth among the city’s commercial tenants and for transit improvements

and pedestrian plazas, is palpable.118

Some version of the rezoning plan may

be revived during Mayor de Blasio’s administration,119

should

revitalizationists convince the City Council to use the city’s heritage assets

in both a sustainable and responsible way.

C. The Rise of Revitalization’s Preservationists

William Sumner Appleton focused on the aesthetic nature of historic

111

16 U.S.C. § 470h-2 (2012).

112

See infra Part C.

113

The other camps argued that (a) Midtown East already was overdeveloped, and (b) the

mass transit system already was overtaxed. See Jackson, supra note 109.

114

See Charles V. Bagli, End of Proposal to Raise Skyline on the East Side, N.Y. TIMES, Nov.

13, 2013, at A1, available at http://www.nytimes.com/2013/11/13/nyregion/support-evaporates-

for-bloombergs-plan-to-rezone-east-side.html; Gus Delaporte, Zoned Out: Midtown East Rezoning

Put on Hold, COMMERCIAL OBSERVER (Dec. 17, 2013, 1:00 PM),

http://commercialobserver.com/2013/12/zoned-out-midtown-east-rezoning-put-on-hold/; Daniel

Geiger, Midtown East Rezoning’s Demise May Be Short-Lived, CRAIN’S NEW YORK BUS. (Nov.

12, 2013, 5:32 PM),

http://www.crainsnewyork.com/article/20131112/REAL_ESTATE/131119961#.#.

115

Geiger, supra note 114.

116

Id.

117

Delaporte, supra note 114.

118

See Bagli, supra note 114; Geiger, supra note 114.

119

See Delaporte, supra note 114; Geiger, supra note 114.



neighborhoods and is considered the guiding figure of revitalizationists.120

He did not, however, “make common cause with neighborhood

preservationists” in the sense of fighting development for the principal

purpose to elevate nativism or beauty as an ideal.121

Later revitalizationists

expanded his approach to encompass “preservation of the city itself—its

mix of economic uses, varied physical and social fabrics and human

scale.”122

In other words, most such preservationists view designation of

landmarks as a major catalyst for urban renewal characterized as

revitalization.123

The federal government adapted this school of thought into its urban

planning initiatives. “The Neighborhood Redevelopment Program in the

1960s encouraged local authorities to rehabilitate older buildings instead of

replacing them.”124

In the 1970s, programs like Urban Homesteading and

Neighborhood Housing Services directly linked preservation with low-

income housing, intending to stem the worst results of gentrification.125

Executive Order 13006 directed federal agencies to locate low-income

housing in downtowns and to give highest priority to occupying historic

districts.126

The revitalizationists’ goal in preservation is to transform a

symbol of decline of America’s cities—decaying buildings—into valued

assets that can spark neighborhood revitalization.127

Revitalizationists allied themselves with New Urbanism planners and

other environmentalists, especially in the 1990s,128

and today engage in

sustainable development, shedding their earlier tendencies to affirm anglo-

saxon predominance or embrace architectural glory for its own sake.129

120

See Michael Holleran, Roots in Boston, Branches in Planning and Parks, in GIVING

PRESERVATION A HISTORY: HISTORIES OF HISTORIC PRESERVATION IN THE UNITED STATES,

supra note 102, at 55, 67–69.

121

Id. at 69.

122

ROBERTA BRANDES GRATZ, THE LIVING CITY: HOW AMERICA’S CITIES ARE BEING

REVITALIZED BY THINKING SMALL IN A BIG WAY 248 (1994).

123

See Judy Mattivi Morley, Making History, Historic Preservation and Civic Identity in

Denver, in GIVING PRESERVATION A HISTORY: HISTORIES OF HISTORIC PRESERVATION IN THE

UNITED STATES, supra note 102, at 211, 211–12; see also Schneider, supra note 95, at 261.

124

Schneider, supra note 95, at 261.

125

See id. at 266–72. These abuses center upon driving out long-term residents from what had

been low-income neighborhoods before rents and purchase prices spike following concerted

efforts to rehabilitate dilapidated tenements. See, e.g., David B. Fein, Historic Districts:

Preserving City Neighborhoods for the Privileged, 60 N.Y.U. L. REV. 64, 80–81 (1985).

126

See Exec. Order No. 13,006, 61 Fed. Reg. 26,071 (May 21, 1996).

127

See Schneider, supra note 95, at 262.

128

Holleran, supra note 120, at 70.

129

See HOLLERAN, supra note 95, at 236; see also Congress4NewUrbanism, CNU 20—New

https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1996612775&pubNum=0001043&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)



Rehabilitation of existing buildings conserves the built environment instead

of consuming increasingly scarce natural resources for new construction.130

Furthermore, rehabilitation work reduces the heavy burden on landfills

imposed by demolition and construction detritus.131

Revitalizationists generally try to leverage preservation as a tool to

help expand economic opportunities in targeted areas.132

The Boston

Chamber of Commerce first recognized the financial benefits of

preservation more than seventy-five years ago.133

Today, revitalizationists

engage in economic development at unprecedented levels, most notably

through the National Trust’s National Main Street Center (“Main Street”).

Main Street is a national consulting operation that coaches communities in

reviving their downtown areas.134

In its thirty-two-year history, Main Street

has worked with more than 1,500 communities to produce a net total of

109,664 new businesses and more than 473,000 net new jobs.135

According

to their data, every public dollar spent on Main Street programs has

generated $18 in private new investment; these programs in total have

generated almost $55 billion in reinvestment.136

D. Influences of These Movements

These three movement philosophies rationalize community tendencies

to “save local history at all costs,” assess the realistic functionality of

proposed preservation assets before landmark designation, or repurpose

Urbanism and Historic Preservation: Collaboration Strategies, YOUTUBE (May 29, 2012),

http://www.youtube.com/watch?v=ghc0BqkrSKo.

130

See AMY L. ARNOLD, STATE HISTORIC PRES. OFFICE, PRESERVATION SHORE TO SHORE:

PLANNING TO PRESERVE: MICHIGAN’S STATE HISTORIC PRESERVATION PLAN 2001-2006 (2002),

available at http://michigan.gov/documents/hal_shpo_preservation-shore-to-shore_51222_7.pdf.

131

See, e.g., DONOVAN RYPKEMA, THE ECONOMICS OF HISTORIC PRESERVATION: A

COMMUNITY LEADER’S GUIDE 33 (1994).

132

See Ijla & Ryberg, supra note 50, at 267, 279.

133

See HOLLERAN, supra note 95, at 241.

134

See Main Street Consulting Services, NAT’L MAIN STREET CENTER,

http://www.preservationnation.org/main-street/field-services/#.U1H2rVxR5G5 (last visited Sept.

28, 2014). Arizona’s Main Street Program is codified in ARIZ. REV. STAT. §§ 41-1501–41-1505,

and its regulations appear in ARIZ. ADMIN. CODE §§ R20-1-701–R20-1-712.

135

See Main Street Reinvestment Statistics, NAT’L MAIN STREET CENTER,

http://www.preservationnation.org/main-street/about-main-street/reinvestment-statistics-

1.html#.Uscjg8KA384 (last visited Sept. 28, 2014); see also Kennedy Smith, Op-Ed., Main Street,

U.S.A., Is Still in Business, N.Y. TIMES, Mar. 16, 2000, at A22, available at

http://www.nytimes.c§om/2000/03/16/opinion/l-main-street-usa-is-still-in-business-293539.html.

136

See Main Street Reinvestment Statistics, supra note 135.



assets while maintaining essential façade features of currently-designated

sites. In the case of First BC, the aestheticists’ view prevailed, since the

church’s nomination occurred nearly three years before the fire ravaged its

interior.137

Fifteen years lapsed between the First BC congregation’s

departure and the church campus’s placement on the NRHP.138

Meanwhile,

additional churches in downtown Phoenix, bereft of neighborhood

environments, lost attendance and financial contributors.

It became

progressively less likely that First BC would experience a church revival;

and its interior architecture was too distinctively identified with worship

functions to be well-suited for an alternative use in its interior

configuration, other than, perhaps, as a museum, library branch, or

archive.139

Since the standard for NRHP designation today is not

functionality, however, First BC’s façade easement stymies contemporary

refurbishment, removing it from the inventory of sites that could better be

developed for greater livability in Phoenix’s urban core. This property’s

treatment confirms NHPA’s critics’ assertion that merely connecting a

historical narrative to a surviving building should not justify preservation

designation.140

Edward Glaeser argues that the correct, although delicate, balance

between protecting architectural treasures and increasing density for city

growth, along with competitiveness, is meant to allow as much new

development as possible in areas where rebuilding is permitted, even if it is

immediately adjacent to the most important and exemplary architectural

treasures.141

Carol Rose identifies community building as the essential

137

See Pela, supra note 4.

138

See id.

139

Museum attendance in the United States is waning. BETTY FARRELL & MARIA

MEDVEDEVA, CTR. FOR THE FUTURE OF MUSEUMS, AM. ASS’N OF MUSEUMS, DEMOGRAPHIC

TRANSFORMATION AND THE FUTURE OF MUSEUMS 12 (2010), available at

http://culturalpolicy.uchicago.edu/sites/culturalpolicy.uchicago.edu/files/Demographic-

Transformation.pdf. The prognosis for increases in museum attendance is poor. See id. at 13.

140

See, e.g., U-Haul Co. of E. Mo., Inc. v. City of St. Louis, 855 S.W.2d 424, 428 (Mo. App.

1993) (observing that the current use of the structure, not its obsolete former use, must be

evaluated by historic preservation regulators, remarking that regulatory purview does not include

preventing effective use of the property that, denied, might result in the property’s deterioration or

ruin, concluding: “If the public weal demands preservation because of architectural significance

irrespective of cost the power of eminent domain is available”). Edward Glaeser’s argument, too,

is economic—that unrestricted preservation (among other factors) inhibits building heights to the

point of decreasing available housing stock, rendering city dwelling unaffordable except to the

wealthy, in turn adversely affecting community diversity and vitality. Glaeser, supra note 32, at

11–12, 261.

141

See Glaeser, supra note 32, at 157, 262–64.



rationale for preservation, which establishes a framework in which dwellers

have a shared community experience.142

J. Peter Byrne argues that

preservation affords personal freedom; in walkable, authentic

neighborhoods built to human scale (including historic districts), the

individual feels “removed from the demanding structures of bureaucratic

worklife,”143

government controls, and modern consumption pressures,

giving rise to one’s personal identity.144

Still, the issue of preservation as an impediment to urban-center

functionality transcends land inventory availability, density-anchorage,

community-building, or personal development agendas, giving way to

essential forward-looking municipal planning. Challenges in restoring

buildings after being damaged, such as buildings worn by the elements or

the mere passage of time, cause ruin and disuse of designated structures,

fostering blight. Design and construction issues arise from the very nature

of materials, scale, and methods of construction. This is apparent when

today’s materials are no longer compatible with those incorporated in a

structure’s original construction or when the original materials’ products

violate contemporary performance standards, such as those associated with

energy conservation and other sustainability elements. Simply summarized,

changing use standards render some types of building forms, floor heights,

and column grids incongruent with contemporary construction methods,

condemning such features to defy restoration efforts.145

Because restoration

to an original condition is virtually impossible for some historic assets,

assessment of their adaptive reuse potential prior to their protected

designation is sound land use planning. Designating properties for

preservation without serious forward planning is not virtuous or sustainable

behavior; it aids neither neighborhood dwellers, developers, nor urban

center individuals. Governments and preservation stakeholders should not

succor first-stage thinking146

in heritage protection.

142

See Rose, supra note 94, at 488–94.

143

J. Peter Byrne, The Rebirth of the Neighborhood, 40 FORDHAM URB. L.J. 1595, 1602

(2013).

144

See id. at 1602–05.

145

See CIVICVISIONS LP, supra note 22, at Executive Summary. This phenomenon is known

as “inherent vice” issues. Id. While one may hope that modern technology will afford a solution

eventually to the challenges of incompatibility, it’s likely that more resources will be poured into

coding to create high-definition three-dimensional images of the probable appearance of an

historic site than to train craftsmen to build eighteenth century door frames or to sculpt gargoyles.

146

See THOMAS SOWELL, APPLIED ECONOMICS: THINKING BEYOND STAGE ONE 6–14 (rev.

ed., enlarged ed. 2009). Stage one thought considers the immediate results of an action without

determining what happens next, over a period of years—other than in terms of political fallout



IV. ADAPTIVE REUSE AND ITS SUSTAINABILITY

IMPLICATIONS IN URBAN CENTERS

Adaptive reuse occurs when old property is refurbished in a way that

changes its use, often triggering new regulatory conditions.147

The

consumption of land and raw materials, including non-renewable resources,

is diminished when adaptive reuse is substituted for demolition or full

remodeling of an existing structure.148

Demolition is unneeded if an older

building can cost-effectively be adapted to current uses and an energy-

efficient status, which promotes sustainability.149

A majority of buildings ultimately outlive their original purposes, due

to obsolescence or redundancy, when a change in demand for their brand of

utility occurs.150

But adaptive reuse conserves resources by using

sustainable construction practices, which reduces greenhouse gas emissions

and other environmental waste in this era of global climate change.151

Many

prior to the politician’s next election campaign. See id. The desire to “do something” to save an

old building without any end-game assessment of its future function or sustainability may be

temporarily satisfying, but ultimately underserves the community. Cf. id. at 7–14.

147

See, e.g., ST. PETERSBURG, FLA., CODE § 16.30.020 (1992) (“Adaptive Reuse of Historic

Buildings Overlay”). The purpose of the section is to “encourage the retention and productive

reuse of structures that have historic, architectural, or cultural value to the City instead of seeing

their underutilization or demolition because their original use has become functionally obsolete.”

Id. at §16.30.020.1.

148

Kuntz, supra note 108, at 329–30.

149

DONALD F. FOURNIER & KAREN ZIMNICKI, ENG’R RESEARCH & DEV. CTR., ERDC/CERL

TR-04-7, INTEGRATING SUSTAINABLE DESIGN PRINCIPLES INTO THE ADAPTIVE REUSE OF

HISTORICAL PROPERTIES 1 (2004), available at

http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA431746. This

work gives specific guidelines to help integrate concepts of sustainable development into the

adaptive reuse of historical buildings in a way that enhances the built environment while

preserving the nation’s cultural endowment.

Sustainable development is development that meets the needs of the present without

compromising the ability of future generations to meet their own needs. It contains

within it two key concepts:

[1] the concept of ‘needs’, in particular the essential needs of the world’s poor, to

which overriding priority should be given; and

[2] the idea of limitations imposed by the state of technology and social

organization on the environment’s ability to meet present and future needs.

WORLD COMM’N ON ENV’T & DEV., OUR COMMON FUTURE 43 (1987).

150

See Craig A. Langston, The Sustainability Implications of Building Adaptive Reuse (2008)

(unpublished paper, CRIOCM Int’l Research Symposium on Advancement of Construction

Management and Real Estate, Beijing, China), available at

http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1003&context=sustainable_develop

ment.

151

See Craig A. Langston, On Archetypes and Building Adaptive Use 1 (2011) (unpublished



historic buildings enjoy two advantages in advancing preservation

initiatives. First, they are in relatively accessible locations in central city

areas, inducing greater heritage tourism.152

Historic properties tend to be

inherently sustainable as a function merely of location.153

Since many of

them were built either in communities before automobile ownership became

widespread or where mass transit use was commonplace, their locations

inherently are pedestrian- and transit-oriented.154

These assets’ preservation

complements mass transit systems within cities’ central business districts,

including inducing tourist use of transit opportunities.155

Second, prior to sophisticated heating and cooling systems, these

structures were built with intimate knowledge of climate conditions by local

builders from locally-sourced materials.156

As a matter of design, therefore,

they feature environmentally-sensitive characteristics. Here, historic

preservation in itself becomes an act of sustainability,157

albeit not of

optimizing sustainable practices.158

Other attributes of historic assets are

paper, 17th Annual Pacific Rim Real Estate Society (PRRES) Conference, Gold Coast, Australia),

available at

http://www.prres.net/papers/langston_on_archetypes_and_building_adaptive_reuse.pdf.

152

See, e.g., Xiaobo Su, Heritage Production and Urban Locational Policy in Lijiang, China,

35.6 INT. J. URB. & REG. RES. 1118, 1118-9 (2011) (acknowledging the “centrality of heritiage to

urban regeneration and economic restricting in Western cities,” a form of “boosterism” in

municipal entrepreneurship); Maria Panaritis, Application Idea Considered to Make Center City

Tourism Easier, PHILLY.COM, Nov. 2, 2014 (smartphone application enables visitors in walking

distance to navigate to heritage sites). Where heritage tourists visit in downtowns (including their

routes between historic sites and retailing opportunities) yields important data for promoting city

core revitalization, see, e.g., Astrid D.A.M. Kemperman, Aloys W.J. Borgers, Harry J.P.

Timmermans, Tourist Shopping Behavior in a Historic Downtown Area, 30 TOURISM MGMT. 208

(2009) (describing and predicting tourist shoppers’ route choice behavior in a downtown area).

153

See WBDG Historic Pres. Subcommittee, Sustainable Historic Preservation, WHOLE

BUILDING DESIGN GUIDE, http://www.wbdg.org/resources/sustainable_hp.php (last updated Dec.

2, 2013).

154

See Ijla et al., supra note 50, at 263.

155

Id.

156

See ERIC ALLISON & LAUREN PETERS, HISTORIC PRESERVATION AND THE LIVABLE CITY

175 (2011); see also Kaid Benfield, When values collide: balancing green technology and historic

buildings, SWITCHBOARD: NATURAL RESOURCES DEFENSE COUNCIL STAFF BLOG (June 25,

2012), http://switchboard.nrdc.org/blogs/kbenfield/when_values_collide_balancing.html..

157

See Langston, supra note 151, at 4; see also Kuntz, supra note 108, at 329–30. As Ms.

Kuntz notes, because of the waste from building debris and new construction’s energy

consumption, restoring an old building virtually always is a more efficient use of resources. Id.

158

See, e.g., ALLISON & PETERS, supra note 156, at 175 (stating that the Green Building

Council must take an active approach to incorporate historic preservation into its policy for federal

funding and the LEED point system to achieve “true sustainability”); see also Kuntz, supra note

108, at 330 (providing shortcomings that include inefficient windows and insulation that result in

air leaks that lead to high utility consumption, as well as dated heating and cooling equipment that



less salutary, however, in communities where population density targets are

still beyond reach. Especially in growing cities, tension persists between

preservation interests and densification.159

Where central city

neighborhoods are not developed at the density that city planners and

managers seek, historic designation of structures or districts reduces the

supply of land for more efficient development, supplanting parcels that lend

themselves ideally to mixed use or transit-oriented projects.160

From the

growth perspective, historic designation of property effectively “down-

zones” the historic assets’ parcels and impacts denser zoning that might

ideally implement uses on immediately adjoining lots.161

V. ILLUSTRATING THE SUSTAINABILITY POTENTIAL OF REPURPOSING

HISTORIC PROPERTY ASSETS

Will Bruder, a renowned Phoenix-based architect, and Robert Pela, a

local theater critic, journalist, and art gallery owner, participated in a panel

discussion during Phoenix Urban Design Week in 2013162

on prescriptions

for Phoenix’s full-blown downtown163

resurgence. Bruder identified the key

to creating a “20-minute city” downtown as adding dense and affordable

housing, and replacing auto-centricity with walkability in scalable

pedestrian environments.164

“Dense,” to Bruder, meant primarily

congregated developments of attached housing stock, built vertically to a

significant height, like the Roosevelt Point Apartments development at the

northern perimeter of downtown Phoenix.165

Pela added two ingredients

chronically lacking in Phoenix’s downtown and impairing its livability:

pedestrian access to necessaries (primarily, groceries) and schools.166

Pela’s

compromise thermal performance).

159

Ijla et al., supra note 50, at 266.

160

See id.

161

Id.

162

See Alexandra Scoville, Final Downtown Devil Discussion of semester examines

Phoenix’s Identity and the arts, DOWNTOWN DEVIL (Apr. 11, 2013),

http://downtowndevil.com/2013/04/11/43439/phoenix-arts-identity-bruder-robrt-pela/.

163

The author’s contrived Phoenix downtown’s boundaries are Margaret T. Hance Park’s

alignment on the North, Jackson Street on the South, 3rd Avenue on the West, and two-hundred

fifty feet east of the eastern right of way of 7th Street on the East.

164

See, e.g., JEFF SPECK, WALKABLE CITY: HOW DOWNTOWN CAN SAVE AMERICA, ONE

STEP AT A TIME 11 (2012) (describing a general theory of “walkability,” including elements of

utility, safety, comfort, and human interest).

165

Michael Widener, Pondering Pela’s Paradox, Part Premier, TERRA INCOGITO (Apr. 16,

2013), http://www.terraincogito.com/pondering-pelas-paradox-part-premier.

166

Id.



view is that the “creative class” (Richard Florida’s now shopworn term for

young professionals and technologically cognoscenti who self-identify as

connoisseurs of upmarket urban living167

) would not locate downtown if

they could not purchase essential goods affordably and send their children

to school in safe, academically-respectable institutions.168

Downtown Phoenix has not housed a supermarket in recent memory.

The marginal “groceries” business in this urban core has been dominated by

one enterprise, Circle K Corp., with its limited inventories of staples, since

the mid-1950s.169

The conventional wisdom of supermarket chains’ new

store development is grounded in rigid demographic fundamentals.170

Rooftops and houses under construction (at the time of the analysis), family

average incomes, and grocery expenditures numbers trigger vertical

development of a supermarket. “Premature” opening of a supermarket

without sufficient middle class households within a prescribed radius is

forbidden. While residents believe that downtown retail necessaries must

address demand to spur downtown Phoenix population growth,

supermarkets proceed under another “order of business.”

167

See, e.g., RICHARD FLORIDA, WHO’S YOUR CITY? HOW THE CREATIVE ECONOMY IS

MAKING WHERE TO LIVE THE MOST IMPORTANT DECISION OF YOUR LIFE 117–19 (2008).

(describing urban clusters with high “location quotients” as a metric demonstrating significant

“place satisfaction”). Historic assets in Europe are seen as soft locational factors in attracting

knowledge-based industries and qualified and creative workforces. See EUROPEAN UNION,

LEIPZIG CHARTER ON SUSTAINABLE EUROPEAN CITIES 3 (Final Draft2007), available at

http://ec.europa.eu/regional_policy/archive/themes/urban/leipzig_charter.pdf; see also Byrne,

supra note 144, at 1604.

168

See Widener, supra note 165.

169

The Phoenix Public Market, the first downtown grocery not affiliated with a chain in

decades, opened a half-mile north of downtown in the fall of 2009 but closed in the summer of

2012. See ABC15 Arizona, Phoenix Public Market going out of business, YOUTUBE (May 7,

2012), http://www.youtube.com/watch?v=cMfObLo0rZ0. The Oakville Grocery Co. opened in

2011 and closed before Phoenix Public Market’s demise. See OakvilleGroceryTV, Oakville

Grocery Grand Opening Press Conference, YOUTUBE (July 3, 2011),

http://www.youtube.com/watch?v=7Q9_68ZvB5c; see also Kristena Hansen, Oakville Grocery

booted by Phoenix CityScape had trail of financial woes, ARIZ. REPUBLIC (Oct. 15, 2011, 12:00

AM) http://www.azcentral.com/business/articles/2011/10/15/20111015phoenix-oakville-grocery-

booted-cityscape-financial-woes.html.

170

See, e.g., Jason M. Carpenter & Marguerite Moore, Consumer Demographics, Store

Attributes, and Retail Format Choice in the US Grocery Market, 34.6 INT’L J. RETAIL &

DISTRIBUTION MANAGEMENT 434–52 (2006) (describing traditional neighborhood markets).

Elements for study include median household income, household size, vehicle availability, and

estimated drive times. Resident and market-based surveys are also conducted in these analyses.

See Heidi Guenin & Nathan McNeil, Evaluating Grocery Store Siting: A Case Study at SE 122nd

and SE Foster (Dec. 10, 2009) (unpublished final paper, Portland State Univ.), available at

http://nathanmcneil.files.wordpress.com/2010/05/grocerystoresiting-final.pdf.



Chain-store, mega-market shopping as the primary venue to buy one’s

necessaries is a fairly recent concept. In old European cities, even in the

most capitalistic among them, “supermarkets” still tend to be located at the

edges of town.171

In contrast, on traditional “high streets,” supermarkets are

bulked-up neighborhood grocers by American superstore standards.172

A 15

to 20,000 square foot marketplace would compete successfully in numerous

major European cities’ central business districts.173

A trend away from

American hypermarket or superstore retailing is evident, however, from

Safeway’s and Wal-Mart’s implemention of small-format grocery stores in

Arizona and California.174

In Phoenix’s downtown, a grocer of that scale

might become a gathering place of sorts, serving the community fellowship

purpose that churches traditionally held in congested residential city cores.

The opportunity to repurpose First BC lies in its immediate context.

The property lies only four city blocks from the closest light rail stations.175

Across from the church is a 1,700-stall, Adams Street city-owned parking

garage. Two blocks from the church, to the south, at the 305 Building on

West Washington Street, is a 1,340-stall, city-owned parking garage. A

downtown Valley Metro bus traverses Van Buren Street on the north side of

the church, and a portion of that bus route is only a quarter mile from

Phoenix’s downtown bus terminal. The mass and vehicular transportation

opportunities in the area of First BC abound; coordinated planning between

the owners of First BC and the city to implement a marketplace could

resolve the “groceries dilemma” for Phoenix’s downtown core. The optimal

171

See ANDREW SETH & GEOFFREY RANDALL, THE GROCERS: THE RISE AND RISE OF THE

SUPERMARKET CHAINS 163–87 (2d ed. 2001).

172

See PETER COLEMAN, SHOPPING ENVIRONMENTS: EVOLUTION, PLANNING AND DESIGN

40–41 (2006). See generally Rosa Colomé & Daniel Serra, Supermarket Key Attributes and

Location Decisions: A Comparative Study Between British and Spanish Consumers (Univ.

Pompeu Fabra, Working Paper No. 469, 2000), available at

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.43.1335&rep=rep1&type=pdf.

173

Sainsbury’s Supermarkets in high streets are approximately 18,000 square feet. Cf. Harry

Wallop & Graham Ruddick, Could Supermarkets’ Race for Shop Space Backfire?, TELEGRAPH

(Jan. 28, 2012),

http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/9046596/Could-

supermarkets-race-for-shop-space-backfire.html. In addition, there is evidence that far smaller

grocers can survive in city centers, even integrating with historic American buildings. See, e.g.,

RHONDA PHILLIPS ET AL., SUSTAINABLE COMMUNITIES: CREATING A DURABLE LOCAL

ECONOMY 222–50 (Earthscan Tools for Community Planning Ser., 2013) (describing a

Burlington, Vermont, Co-Op City Market experience).

174

See NIGEL F. PIERCY, MARKET-LED STRATEGIC CHANGE: TRANSFORMING THE PROCESS

OF GOING TO MARKET 522 (4th ed. 2009).

175

See GOOGLE EARTH, http://www.google.com/earth/ (last visited Sept. 26, 2014) (searching

for “302 W Monroe St, Phoenix, AZ”)



sustainability solution, in short, is to repurpose the property, establishing a

marketplace inside First BC.176

Whether interior details of the church are preserved as design

amenities is an issue for Phoenix’s Historic Preservation Commission, but

even if the SHPO determined that essential interior architectural features

could not be modified, pop-up retail shops inside the structure remain a

possibility.177

These shops, although small and temporary, can build trade

and synergy by prolonged consumer exposure. Pop-up retail allows a

company to affordably create a unique environment, engaging its customers

while generating an ambience of relevance and interactivity178

—precisely

176

No doubt some will conjure, completing this sentence, Jesus cleansing the temple of

money changers, as described in the Holy Bible. Mark 11:15–19 & 27-33 (King James); Matthew

21:12–17 & 23–27 (King James); Luke 19:45–48, 20:1–8 (King James). Since the Middle Ages, a

town’s major cathedral has functioned as a kind of marketplace, with different commercial

activities centered on the different portals, particularly during the regular fairs. Textiles were sold

around the north transept, while meat, vegetable, and fuel sellers congregated around the south

porch. See OTTO VON SIMSON, THE GOTHIC CATHEDRAL: ORIGINS OF GOTHIC ARCHITECTURE

AND THE MEDIEVAL CONCEPT OF ORDER 167 (Princeton Univ. Press, 3d ed. 1988). Money-

changers (critical when each town or region used its own currency) had banques near the west

portals and also in the nave itself. See id. Wine sellers plied their trade in the nave, although

occasional 13th-century ordinances survive which record them being temporarily banished to the

crypt to minimize disturbances. See id. If there are no longer to be sacred ceremonies inside First

BC, does it matter whether the marketplace operates inside or immediately outside the doorways

of the structure?

177

That churches are suitable for retail conversion is evident from these sites: 6 Creatively

Converted Chapels and Churches: Bookshops, Bars & More, URBAN GHOST (Jan. 18, 2011),

http://www.urbanghostsmedia.com/2011/01/6-creatively-converted-chapels-churches/; C.J.

Hughes, Church Turned Club is Now a Market, N.Y. TIMES, Mar. 17, 2010, at B7, available at

http://www.nytimes.com/2010/03/17/realestate/commercial/17limelight.html?_r=0; James White,

Prophet exchanged for profit as Tesco opens latest convenience shop . . . in a church, DAILY

MAIL (Nov. 11, 2010, 9:48 AM) http://www.dailymail.co.uk/news/article-1328629/Tesco-opens-

latest-convenience-shop—church.html. Limelight Marketplace, on The Avenue of the Americas,

featured three floors of assorted shops under one roof until it failed in 2013; at its peak, it housed

60-odd specialty shops, cafes, and salons. See Hughes, supra. David Barton Gym will be

converting part of the Gothic Revival brownstone buildings into a workout and personal training

operation. See Storied Limelight Getting David Barton Gym, PAGE SIX (Dec. 15, 2013, 10:35 PM),

http://pagesix.com/2013/12/15/storied-limelight-getting-david-barton-gym/.

178

See, e.g., Billy Gray, On 10th

Anniversary of First NYC Pop-Up, Retailers Look Back,

COMMERCIAL OBSERVER (Dec. 5, 2012), http://commercialobserver.com/2012/12/on-10th-

anniversary-of-first-nyc-pop-up-retailers-look-back/; see also Matt Townsend, The Staying Power

of Pop-Up Stores, BUSINESSWEEK (Nov. 11, 2010)

http://www.businessweek.com/magazine/content/10_47/b4204026293305.htm. Environments of

pop-up stores are described narratively and depicted in Liliane Wong, Sustainability: Industry

Standards and Innovation, in DESIGNING INTERIOR ARCHITECTURE: CONCEPT, TYPOLOGY,

MATERIAL, CONSTRUCTION 66, 83–86 (Sylvia Leydecker ed., 2013).



the sort of neighborhood vitality envisioned by Jane Jacobs.179

In

communities like Birmingham, Alabama, pop-up retail opportunities are a

staple, joining businesses and the community, and energizing downtown

street life in the bargain. Birmingham calls its retailing initiative, one

element of its twenty-four-hour mixed-use district, “The Street Life

Project.”180

First BC offers both a wind-break and a defined space that is attractive

to consumers due to the interior architectural uniqueness on its first floor. A

project within this space defines adaptive reuse. If First BC’s roof remains

open to the elements, the interior space may be occupied by roofed

temporary structures, such as in ISO containers modified for sales space.181

If these temporary structures have locking windows and doors, merchandise

security concerns are well mitigated. Since the greenest building is one

already erected,182

First BC’s interior marketplace is inherently sustainable.

More sustainable still, travelers moving by a variety of modes can be

accommodated in this location. Phoenix can open the public employee

garages to use by the general public’s motorized vehicles during evening

hours and on weekends when competition for stalls is nil. The location of

the marketplace is no more than a twenty minute walk from many portions

of Phoenix’s downtown residential structures. Security risks seem minimal

with locking retail pods, but occupancy charges collected from merchants

179

See JACOBS, supra note 24.

180

See REVIVE BIRMINGHAM, www.revivebirmingham.com (last visited Sept. 30, 2013)

(explaining how Birmingham promoted filling vacant storefronts with pop-up retail and dining

establishments).

181

See Wong, supra note 178, at 85–86. See also ULRICH KNAACK ET AL., PREFABRICATED

SYSTEMS 64–72 (Principles of Construction Ser., 2012); ROBERT KRONENBURG, PORTABLE

ARCHITECTURE: DESIGN AND TECHNOLOGY 44–51 (2008); Emilie Raguso, First Shipping

Container ‘Village’ Headed to Berkeley, BERKLEYSIDE (Nov. 8, 2013, 9:00 AM),

http://www.berkeleyside.com/2013/11/08/first-shipping-container-village-headed-to-berkeley/. In

the event readers wonder how such temporary buildings might get through the door to the interior,

ISOs can be (and typically are) lowered by cranes onto the floor of the structure—in this case

through the compromised roof’s opening—without threatening the condition of First BC’s

remaining roof or doors.

182

See Emily Badger, Why the Most Environmental Building is the Building We’ve Already

Built, ATLANTIC CITIES (Jan. 24, 2012), http://www.theatlanticcities.com/housing/2012/01/why-

most-environmental-building-building-weve-already-built/1016/. The point of the expression,

since existing structures have “embodied energy,” is that the carbon investment in constructing a

new building is much higher (since its materials have to be manufactured and shipped to the site),

making it more sustainable to retrofit an existing structure. See Sarah B. Schindler, Following

Industry’s LEED: Municipal Adoption of Private Green Building Standards, 62 FLA. L. REV. 285,

349 (2010). In fact, the greenest building is the existing structure equipped with carbon-neutral

technology, rendering the structure a “net-generator” of renewable energy.



occupying pop-up shops could pay sentries securing the interior against

historic “souvenir” opportunists.

In addition to sustainability advantages, public exposure, as opposed to

exclusion, creates potential to secure the church building’s future. By

keeping First BC boarded-up and fenced off, the public is blind to its

architecturally-worthy elements, since individuals prefer avoiding a

depressing streetscape like that presented today. Opening the site to public

visitation for secular functions opens linkages to opinion makers, the

business community, government officials, and everyday citizens. Opening

First BC for temporary operations alone could catalyze initiatives by the

business community (in the form of partnerships involving contractors or

trade organizations via private grant funding), the Phoenix government (in

the form of community grants or proposed tax-increment financing), and

possibly crowd-funding,183

enabling joint risk-taking in long-term adaptive

reuse and structural restoration of the interior. First BC as a marketplace

reinforces the artist-studio and the pedestrian open-house atmosphere the

city endorses through its downtown zoning code.184

The Downtown

Phoenix Arts Coalition has joined forces with city government to promote

an increase in authentic street life, boutique amenities, and pedestrian-

friendly access ways in the downtown core.185

These dimensions of

livability may result (subject to overcoming structural integrity limitations

from neglect) in eventual repurposing of First BC for a mixed-use project

that might feature live-work spaces on upper floors or a café in the bell

tower with views of downtown.

Development like this proposed adaptive reuse of First BC fuses Jane

Jacobs’s emphasis on neighborhood variety and Professor Rose’s entreaties

for community-building with Professor Glaeser’s “competitiveness

imperative” justifying urban core density increases. More persons will

frequent downtowns featuring distinctive shopping environments,

particularly in repurposed buildings with unique architecture or décor. Such

place-making increases residential density by tapping into pent-up demand

183

See, e.g., Rod Ebrahimi, How Crowdfunding Could Reshape Real Estate Investing,

FORBES (Dec. 12, 2013, 9:00 AM), http://www.forbes.com/sites/rodebrahimi/2013/12/12/how-

crowdfunding-will-impact-real-estate-investing-an-interview-with-realtyshares/.

184

See PHX., ARIZ., ZONING ORDINANCE ch. 12 (2013), available at

http://www.codepublishing.com/az/phoenix/.

185

See ANDREW ROSS, BIRD ON FIRE: LESSONS FROM THE WORLD’S LEAST SUSTAINABLE

CITY 75–103 (2011). Illustrations of neighborhoods appear at ARTLINK PHOENIX,

www.artlinkphoenix.com (last visited Sept. 30, 2014).



for convenience living and the urban central (“heart of the city”) lifestyle.186

VI. ELEVATED STANDARDS AND ACTIONS FOR

PRESERVING SUSTAINING LEGACIES

A.Imbedding Sustainability Objectives in Historic Designation

Application Processes

If adaptive reuse of an historic property is not intuitive, even less so is

seeking a property’s membership in an historic listing without any

implementation strategy. A solution to such “stage one” planning is for

future historic preservation to borrow from American trademark registration

and mark-maintenance processes. Simplified, a federal trademark

registration lasts for a ten-year term, with ten-year renewal terms.187

Between the fifth and sixth year after the date of the mark’s initial

registration, however, the owner of the trademark (or a successor, if it has

been sold following registration) must file an affidavit avowing continuous

use of the mark.188

If that affidavit is not filed, the mark’s registration is

canceled.189

This sanction curbs persons tempted to register a mark merely

to deprive others of its use.190

The regulatory premise is that the trademark

owner must employ the mark in commerce or lose control of its distinctive

identification power.191

186

See URB. LAND INST. (SING.) AND CENTRE FOR LIVABLE CITIES, 10 PRINCIPLES FOR

LIVEABLE HIGH-DENSITY CITIES: LESSONS FROM SINGAPORE 8, 48–9, 56–61 (2013), available at

http://www.uli.org/wp-content/uploads/ULI-Documents/10PrinciplesSingapore.pdf (describing

relieving density with variety [including in building heights] and promoting innovative and

nonconventional solutions to space shortages). See also J. Peter Byrne, supra note 144, at 1604

(describing how preservation stimulates demand for urban living via enabling “easy, spontaneous

access among the creative class”).

187

DEBORAH E. BOUCHOUX, INTELLECTUAL PROPERTY FOR PARALEGALS: THE LAW OF

TRADEMARKS, COPYRIGHTS, PATENTS, AND TRADE SECRETS 94 (3d ed. 2009).

188

This is the so-called “Section 8 affidavit.” See id. at 92–93.

189

Indeed, a trademark can be continued on the federal register even when not used, if the

registrant shows “special circumstances that would justify nonuse.” Id. at 97. But, to describe

more diverts the reader from the main point: that property rights and privileges generally are

granted to those for purposes of affirmative exploitation, not to thwart the efforts of others in the

marketplace.

190

In addition, a registrant is eligible to file an incontestability affidavit (also known as a

Section 15 affidavit) after the registered mark has been in continuous use in commerce for at least

five consecutive years after the date of registration, though it need not be the five-year period just

following registration. See id. at 93–94.

191

See BOUCHOUX, supra note 187, at 97 (describing why a trademark must be used and what

is considered use).



Similarly, tomorrow’s preservation advocate’s initial application for

landmark designation for property ought to be accompanied by a

supplement known as a Restoration and Use Strategy and Timetable—for

shorthand, here, a “RUST.”192

The initial designation application must

explain, in addition to the data currently collected to evaluate the gravitas of

the nominated-as-historic property, sections describing:

(a) Means of implementation for any use (whether short- or long-term)

proposed to be made of the property, including the target audience/clients for the

proposed use, with market and demographic studies or public surveys supporting

the viability of the continuing or proposed use;193

(b) Sustainability aspects of the property to be listed, including energy

efficiencies achievable from the existing structure and rehabilitation aspects of the

project that will increase efficiencies in utility usage and carbon footprint

reduction;

(c) The source(s) of funds to implement the proposed use(s) and sustainability

elements;194

(d) The budget for implementation, including anticipated revenues from

visitation or use fees associated with interacting with the historic property; and

192

A timetable, while a part of the overall strategy, is called out separately in the acronym

because it is the most critical element of the strategy, especially in this “Age of Immediacy,” the

present time defined by one journalist as “an impatient age of social media and instant

communication.” David Bauder, Age of Immediacy Slowed by Results, DENVER POST (Nov. 7,

2012, 12:01:00 AM), http://www.denverpost.com/ci_21944489/age-immediacy-slowed-by-results.

193

It is expected that most of the applicants will respond either by addressing the existing use

(if the building or other structure is occupied) or, if unoccupied at the application date, that it will

become a “monument” or “museum.” This response ought to be viewed with some skepticism,

although this paper does not advocate the disqualification of a property merely due to this

proposed use. It is a fact, however, that except in regard to iconic historic properties, especially

those away from densely populated areas, museums are experiencing attendance declines, boding

ill for their financial support, in turn boding ill for their maintenance needed for preservation. See,

e.g., J. Freedom du Lac, Struggling to Attract Visitors, Historic Houses May Face Day of

Reckoning, WASH. POST, Dec. 22, 2012, available at

http://www.washingtonpost.com/local/struggling-to-attract-visitors-historic-houses-may-face-day-

of-reckoning/2012/12/22/349116b6-4b93-11e2-a6a6-aabac85e8036_story.html; see also Field

Horne, Op-Ed., No Need to Turn All Historic Structures into Museums, SCHENECTADY GAZETTE,

Aug. 30, 2005, available at

http://groups.yahoo.com/neo/groups/NYSCHIST/conversations/topics/136.

194

Bodies seeking non-profit (e.g., 501(c)) tax-exempt status are required by the Internal

Revenue Service to project a three-year budget on Form 1023, Part IX. See INTERNAL REVENUE

SERV., INSTRUCTIONS FOR FORM 1023, PART IX 12–14 (June 2006), available at

http://www.irs.gov/pub/irs-pdf/i1023.pdf. Many non-profit applicants have not existed three years

at the date of their applications, and the Service knows that. Thus, the Service’s requirement either

is a complete waste of everyone’s time, or subtly invites the enterprise’s organizers to contemplate

if it will survive that long, inviting, in turn, thoughts on how to sustain a doubtlessly worthy

purpose.



(e) A five-year timetable targeting when (1) the “street smart”195

aspect of the

property will be fully implemented and (2) the proposed initial use will be

implemented.

The advocate’s recitation as to these RUST elements should be scored,

and the score should be reported in a widely-distributed publication making

the rounds of historic preservation advocacy groups and involved

governmental officialdom, encouraging strategic planning in preservation

circles. This metric and method should be standard protocol among

designation bodies at each level of government described in Part III,

motivating such “best practices” for careful designation of structures,

districts, and other historic assets, in equal measure, as to their inherent

cultural or historical significance.196

Indeed, a uniform application packet

should be devised for nationwide use in initial designation and in

maintaining the designation status.

The applicant’s advocate must update the RUST every five years for

up to two cycles of additional reporting, including revising, on each

occasion, the five-year implementation timetable, unless implementation of

a use first has occurred, in which event any applicable timetable for

repurposing any affected historic building or structure should be submitted.

If the RUST “plan” cannot be implemented after three reporting cycles, the

asset’s designation as historic property should terminate. Perhaps a historic

designator could grant the advocate one final chance to submit a RUST

modification, but only if it substantially revises the nomination-expressed

use, indicating repurposing of the property for a viable use. This “overhaul”

plan would need to identify a five-year timetable during which repurposing

will occur, along with its implementation budget. Upon the lapse of that

“reset” five-year period, the historic designation attaching to the asset

would terminate if the repurposed site is not open to the public. Fifteen

195

By “street smart,” I mean augmenting the exterior appearance and physical security of the

historic assets, specifically landscaping, exterior securing of portals (doors and windows), and

maintenance of exterior walls and doors to support, not reduce, the aesthetic of the surrounding

neighborhood. Chain link fences with razor wire or boarded-up portals, used as a primary means

of securing a site or building and ignoring the aesthetic impact of these “features,” ought to earn

zero points in the assessment.

196

The National Trust for Historic Preservation’s Best Practices Manual contains Chapter 13,

captioned “Sustainable Practices,” that describes, among other things, the Trust’s sustainability

program. See NAT’L TRUST FOR HISTORIC PRES., BEST PRACTICES FOR THE CARE OF

STRUCTURES AND LANDSCAPES AT NATIONAL TRUST HISTORIC SITES 79–124 (2010), available

at http://barbaracampagna.com/wp-content/pdfs/Best-Practices-Manual_Feb%202010.pdf.



years to make a historically-designated property useful and sustainable is

not medieval, considering that crowdfunding, crowdsourcing, and abundant

free consultation for reuse of abandoned buildings and sites exist.197

Sensible conclusions by the landmark-designating body must include that

the listed historic asset is not sufficiently significant or unique to merit

landmark status, may be beyond rescue for any utility, or simply is not a

point of civic pride according to resident and philanthropy perceptions.

B. Restoring Historic Assets Harmoniously with Sustainability Needs

Historic preservation regulations for multiple story buildings must

permit solar technology installations on rooftops and, where invisible, other

portions of structures. Façade easements are purposeful for a viewer of

walls and visible roof edges of an historic building. Façade easements

should never address aerial views of a property; few persons fly slowly over

designated parcels to observe the rooftops of these buildings and they

cannot see rooftops more than one story high. Tall buildings burden the

power grid more than single story structures,198

so they should offset that

burden in a relatively unobtrusive manner by employing solar collector

technologies. Conserving non-renewable resources is as meritorious a virtue

as is conserving historic assets and little is lost by permitting taller historic

assets to self- heat and cool if the basic appearance of the façade from the

ground is not compromised.199

In this matter of solar self-sufficiency,

California’s Solar Rights Act200

offers a suitable rule: if proposed

197

See, e.g., N.Y. STATE DEP’T STATE, GUIDEBOOK: OPPORTUNITIES WAITING TO HAPPEN:

REDEVELOPING ABANDONED BUILDINGS AND SITES TO REVITALIZE COMMUNITIES (2004),

available at http://www.dos.ny.gov/opd/programs/pdfs/Guidebooks/ab/AbandonedBuildings.pdf.

198

See, e.g., Colleen Long, New York City office towers use ice to keep cool, ease burden on

city’s power grid, U-T SAN DIEGO (July 24, 2007, 12:19 AM),

http://legacy.utsandiego.com/news/science/20070724-0019-icecooling.html.

199

See, e.g., Kuntz, supra note 108, at 334–35 (stating how Washington State located solar

panels on the roof of its capitol building’s fifth floor, maintaining the beauty of the exterior). In

the same vein, the owners of historically designated assets ought to be permitted to resurface

facades with coatings that do not detract architecturally and contain nano-particulates that absorb

and transfer solar energy for heating and cooling purposes. See, e.g., Timon Singh, Rice

University’s Carbon Nanotube Paint Turns Any Surface into a Solar Battery, INHABITAT (Jun. 29,

2012), http://inhabitat.com/rice-universitys-carbon-nanotube-paint-turns-any-surface-into-a-solar-

battery/.

200

See CAL. HEALTH & SAFETY CODE § 17959.1 (West 2009); see also CAL. GOV’T CODE §§

65850.5(a), 6647301, & 66475.3 (West 2008) (Section 65850.5(a) stating, in relevant part, that

“[i]t is the intent of the Legislature that local agencies not adopt ordinances that create

unreasonable barriers to the installation of solar energy systems, including, but not limited to,



community restrictions increase the cost of an HVAC system or decrease its

potential performance, prohibiting solar energy systems for historic

structures ought to be repudiated as unreasonable,201

so long as the

collectors are mounted to match the roof slope and do not rise more than a

few inches from the roof’s surface.202

For the future, exterior coatings with

solar collection properties (such as imbedded nanocrystals)203

that do not

impact (to the average observer) the appearance of the historic features

should be considered as well, as should solar shingles made to resemble the

building’s theme.204

Self- heating and cooling are imperatives in historic assets’

sustainability, because modern technologies offer the only sensible ways to

control costly and unwanted air exchange through window frames. General

economic polemics on preserving original windows versus replacing them

with efficient but inauthentic windows achieve little, mainly because it is

seldom that one knows in advance how the quality and ultimate appearance

of replacement window materials, proposed by the historic asset’s owner,

will affect the designated asset.205

Original fenestration, though not usually

design review for aesthetic purposes, and not unreasonably restrict the ability of homeowners and

agricultural and business concerns to install solar energy systems”). Essentially any requirement

that solar system panels be invisible to persons atop a building or flying overhead will be

unreasonable under this scheme, although a requirement that they be invisible to persons upon the

ground peering at the roof’s visible edges seems reasonable.

201

See NORTHAMPTON, MASS., CODE § 195-5(A)(14) (2011) (stating that rooftop solar panel

installation is exempt from Historic District Commission review).

202

See HISTORIC DIST. COMM’N, OFFICE OF PLANNING & DEV. & PIONEER VALLEY

PLANNING COMM’N, ELM STREET HISTORIC DISTRICT DESIGN STANDARDS 38 (2010), available

at http://www.northamptonma.gov/DocumentCenter/View/818; see also Supplemental standard

(d)(3)(i) to N.J. ADMIN. CODE § 19:31C-3.8, 45 N.J. Reg. 256(a) 59 (2013). The rules were

promulgated by the Fort Monmouth Economic Revitalization Authority for a former Army post

closed Sept., 2011. See Overview, FORT MONMOUTH REDEVELOPMENT,

http://www.fortmonmouthredevelopment.com/index.aspx (last visited Sept. 30, 2014).

203

See, e.g., Patrick J. Kiger, Sun Plus Nanotechnology: Can Solar Energy Get Bigger by

Thinking Small?, NAT’L GEOGRAPHIC, Apr. 28, 2013, available at

http://news.nationalgeographic.com/news/energy/2013/04/130429-nanotechnology-solar-energy-

efficiency/.

204

See, e.g., Singh, supra note 199; Gemeda Beker, NREL Uses Corning’s Flexible Willow

Glass to Develop Cheap, Efficient Solar Shingles, INHABITAT (Aug. 9, 2013, 2:00 PM),

http://inhabitat.com/nrel-uses-flexible-corning-willow-glass-to-develop-cheap-efficient-solar-

shingles/ (“new [Corning] Willow Glass solar cells are flexible, thin, and durable enough to be

installed directly on rooftops as solar shingles.”). But see NAT’L ALLIANCE OF PRES. COMM’NS,

SAMPLE GUIDELINES FOR SOLAR SYSTEMS IN HISTORIC DISTRICTS 4 (2009) (“Solar shingles

laminates, glazing, or similar materials should not replace original or historic materials;” no

explanation for this outright discouragement, however, is offered).

205

See Jennie G. Alkire, Replacement Windows in Historic Houses: A Study of the College

http://inhabitat.com/stanford-researchers-develop-record-breaking-thinner-solar-cells-that-absorb-more-light/



a majority of an entire wall’s fabric, contributes significantly to the historic

building’s authenticity. From the perspective of those interested in energy

efficiency, however, those windows are not suitable.206

Thus, realizing

energy savings through windowpane and sash replacement presents a

nightmare for local preservation commissions compared to the low visual

impact of solar technology rooftop- or ground-mounted installations on

ordinary vertical improvements. The optimal approach to maintaining

respect for the historic context while achieving sustainability can be found

in those simple design guidelines for historic properties promulgated by the

City of Richmond, Virginia: solar panel rooftop placement should (a) not

require removing historic roofing material visible from the public right of

way, (b) be minimally visible (though it need not be “invisible”) from that

right of way,207

(c) not alter roofing configurations like dormers and

chimneys, and (d) be installed by a method that is “reversible.”208

C. Adaptively Reusing Historic Assets in Physical Crisis

Preservation ordinances must not so hobble attempts at reuse or

redevelopment of historic assets so as to eliminate all incentives to proceed

when it is evident that there is no future in preserving an unused,

dilapidated landmark. Zoning code changes, such as adopting a Planned

Unit Development (“PUD”), overlay, or similar mixed-use zoning

designation for an historic asset’s lot, should induce redevelopment and

reuse that allow for productive repurposing while celebrating a landmark’s

few remaining unique structural qualities.209

An illustration is located two

Hill Historic District in Greensboro, North Carolina 2 (Dec. 1, 2008) (unpublished M.S. thesis,

Univ. of N.C. at Greensboro); see generally ERIN MUSIOL ET AL., AM. PLANNING ASS’N, SOLAR

BRIEFING PAPERS NO. 5: BALANCING SOLAR ENERGY USE WITH POTENTIAL COMPETING

INTERESTS 1–5 (2012) available at

https://www.planning.org/research/solar/briefingpapers/pdf/potentialcompetinginterests.pdf.

Fundamentally, even with computer simulation, no one accurately can predict how the public will

perceive new windows as an authentic replication of original historic building fenestration.

206

See Musiol & Kooles, supra note 205, at 1–2.

207

Design Guidelines for Solar Installations, NAT’L TRUST FOR HISTORIC PRES.,

http://www.preservationnation.org/information-center/sustainable-communities/buildings/solar-

panels/design-guidelines-for-solar.html (last visited Sept. 30, 2014) (“[W]ith the visibility of . . .

solar panels . . . minimized to the greatest extent possible.”).

208

See DEP’T OF PLANNING. & DEV. REVIEW, OLD & HISTORIC DISTRICTS OF RICHMOND,

VIRGINIA: HANDBOOK AND DESIGN REVIEW GUIDELINES 56 (2011), available at

http://www.richmondgov.com/CommissionArchitecturalReview/documents/Old_Historic_Dist.pd

f.

209

See, e.g., ST. PETERSBURG, FLA., CODE § 16.30.020 (1992) (providing an overlay district);



blocks south of First BC. Initially constructed in 1920 and rebuilt in 1928 of

concrete and hollow tile, the J.M. Walker Building, designed by architect

Lee Fitzhugh,210

was Phoenix’s best Neo-Classic Revival Style structure

downtown. It was listed on the NRHP in 1985.211

J.C. Penney initially

occupied it for a department store until 1926, when it vacated the site for a

newer, two story structure.212

The building was remodeled for occupancy by

The Central Arizona Light & Power Company, the leading electric utility in

the state, until the 1940s; afterward, it was used as a furniture store and a

labor union office.213

In 1959, the city purchased the Walker building but

made no public use of it.214

It now houses a sandwich shop on its first floor

and the local American Institute of Architects chapter office on its second

floor.215

For repurposing the building in 2001, the columnar portions of the

façade were retained, although the roof above the facade was replaced

GREENWICH, CONN., MUN. CODE § 6-109 (1988) (establishing an overlay zone encouraging the

adaptive re-use of buildings of historic value and seeking input from the city’s Historic District

Commission on appropriate changes to properties in this overlay district; it does not establish an

historic district). The city of Chandler, Arizona, aided by a consultant, is reviewing city zoning

and development area plans policies to create an adaptive building reuse program, aiding

developers and other owners to “quickly and cost-effectively transform buildings” into

commercial uses. See Michelle Mitchell, Chandler Hires Consultant to Help Find New Uses for

Aging Buildings, ARIZ. REPUBLIC (Feb. 24, 2014, 1:06 PM),

http://www.azcentral.com/community/chandler/articles/20140214chandler-hires-consultant-help-

find-new-uses-old-buildings.html.

210

This is the same Lee Mason Fitzhugh of Fitzhugh & Byron who aided in designing First

BC. Plans sheets for the 1920 and 1928 buildings are available from the Phoenix Museum of

History. See Store Building for J. W. Walker, 1920 (300 or 302 W. Washington); and Store &

Office Building for J. W. Walker, 1928 (30 N. 3rd Avenue), DIGITAL PUB. LIBRARY OF AM.,

http://dp.la/item/26501787c1515ca72624a650f5feb7e1 (last visited Sept. 30, 2014).

211

NAT’L PARK SERV., NAT’L TRUST FOR HISTORIC PRES., NATIONAL REGISTER OF

HISTORIC PLACES 1966 TO 1994, at 30 (1994), available at

https://archive.org/details/nationalregister00nati.

212

See JUNIOR LEAGUE OF PHOENIX, INC., HISTORIC PHOENIX COMMERCIAL PROPERTIES

SURVEY AND NOMINATION TO THE NATIONAL REGISTER OF HISTORIC PLACES 56 (1984).

213

J.W. Walker/Central Arizona Light & Power Building, THE HISTORICAL MARKET

DATABASE (Feb. 17, 2010), http://www.hmdb.org/marker.asp?marker=27628. A photograph of

the Walker Building, taken after possession was assumed by the City of Phoenix (which installed

a wall sign “Municipal Bldg. Annex”) but before restoration, is available at http://vintage-

phoenix.blogspot.com/2013/09/the-jm-walker-building.html. The photograph displays the

building’s extensive pilasters, cornices and dentils.

214

See id.

215

See Jack Fitzpatrick, Downtown Dining: Sticklers, DOWNTOWN DEVIL (Mar. 13, 2012),

http://downtowndevil.com/2012/03/13/24143/downtown-dining-sticklers/; Mike Padgett,

Canalscape Design Competition Heads Arizona Architects’ March Calendar,

ARIZONANOTEBOOK (Mar. 1, 2009), http://arizonanotebook.com/canalscape-design-competition-

heads-arizona-architects-march-calendar.

http://www.hmdb.org/marker.asp?marker=27628



together with the walls, which now are glass panels.216

The original

structure is well-modified: “Stately Corinthian pilasters greet the traffic of

Washington Street, framed by intricate cornice brackets with carefully

carved dentils—details so precise in Neo-Colonial-style buildings.”217

What remains of the columns and the filigree work in the alabaster reminds

the viewer that the Walker building once was grand, a statement of

monumental architecture. Refurbishing the building affords the public a

glimpse of lost craftsmanship, an unlikely opportunity had the building not

been repurposed. Well-maintained and frequently patronized, the Walker

Building today makes a qualitatively different contribution to downtown’s

livability from First BC’s legacy to date. Which structure addresses a

subconscious need for sustainable memories?

A designated property in crisis must be released from the NRHP or

other registry to permit refurbishment to proceed, unless an overlay district

or zoning adjustment process allows restoration and repurposing. In the case

of federal designation, a new registry category called “heritage repurposed”

would be appropriate. To attain this new status, the preservation proposal

must be certified in three related respects. First, a qualified consultant must

certify that the improvements have insufficient structural integrity to

maintain its original façades at a commercially reasonable cost.218

Second,

the owner must certify that there are no ready, commercially reasonable

funding sources available for restoration, and minimal public demand exists

to maintain the property with its original structural façades.219

The third

certification offers a plan for (a) adaptive reuse of the structures, (b)

preservation of some unique character by rescuing intact those features that

capture the historical architectural statement or essential heritage elements,

and (c) a timetable within which work will be done to save these elements.

If the registry keepers find these certifications sufficient, there is no reason

to penalize the owner by denying him or her all tax credits, such as

accelerated depreciation, resulting from genuine efforts to preserve historic

assets in crisis—so long as an adaptive reuse is implemented by a deadline

evidencing good faith intentions to retain structures instead of tax benefits.

216

J. W. Walker/Central Arizona Light & Power Building Image, WAYMARKING,

http://www.waymarking.com/gallery/image.aspx?f=1&guid=7bc99198-c0f2-4552-8c37-

31bb07535d7d (last visited Oct. 1, 2014).

217

From the Arizona Room, 10-30 N. 3rd

Ave. — J.M. Walker Building, DOWNTOWN PHX. J.

(Mar. 9, 2011), http://www.downtownphoenixjournal.com/tag/burton-barr-central-library/page/4/.

218

Cf. ST. PETERSBURG, FLA., CODE § 16.30.020 (1992) (taking into account the cost of

exterior alterations for conversions in an overlay district).

219

Cf. id. at § 16.30.020.



For adaptive reuse of debilitated historic assets to thrive, zoning code

changes must liberalize required minimum setbacks, maximum lot

coverage, and minimum parking requirements,220

so long as, in the latter

case, transit nodes are nearby (e.g., the J.M. Walker building lot contains no

on-premises parking). Cities can promote incentives in reuse projects’ plans

review stage, such as by adopting the International Existing Building Code

(“IEBC”)221

or providing for fast-track permitting. The IEBC allows

developers who reuse a building to be subject to existing building codes of

an earlier time, rather than those codes in effect for new construction.222

With sensible policies in place, the marketplace will decide what merits

adaptive reuse investment.223

D. Acknowledging Preservation as Part of a Sustainable City Development

Strategy

Scant room in local government growth policies endorsing livability

and sustainability exists for a mindset that historic assets’ preservation must

operate independently from community planning and zoning.224

Ireland’s

Department of Arts, Heritage and the Gaeltacht225

has summarized this well:

[T]he protection and forward management of the architectural heritage of an area

should not be seen just as an end in itself. It should also be viewed as a foundation

for giving a truly distinctive sense of place and identity to our cities, towns and

villages. . . . [S]uccessful development plan policies for the built heritage are those

which have been integrated into the broader planning context and sustainable

220

Cf. id. at §16.30.020.5B (requiring a certain amount of parking that will not harm the

historic resource, and allowing parking alternatives so as to protect the actual historic property).

221

See INT’L CODE COUNCIL, INTERNATIONAL EXISTING BUILDING CODE (2012), available

at http://publicecodes.cyberregs.com/icod/iebc/2012/.

222

See id. at vii.

223

See Sarah Schindler, The Future of Abandoned Big Box Stores: Legal Solutions to the

Legacies of Poor Planning Decisions, 83 U. COLO. L. REV. 471, 529–30 (2012).

224

See DEP’T.OF ARTS, HERITAGE & THE GAELTACHT, SHAPING THE FUTURE: CASE STUDIES

IN ADAPTATION AND REUSE IN HISTORIC URBAN ENVIRONMENTS 2–3 (2012), available at

http://www.ahg.gov.ie/en/Publications/HeritagePublications/ArchitecturalPolicyPublications/Shap

ing%20The%20Future%20-

%20Case%20Studies%20in%20Adaptation%20and%20Reuse%20in%20Historic%20Urban%20E

nvironments.pdf.

225

“Gaeltacht” refers to the indigenous Irish language and associated cultural features derived

from the Celtic peoples, which persist in a few Irish communities. See ÚdarásNa Gaeltachta, What

is the Gaeltacht? - ÚdarásNa Gaeltachta, YOUTUBE (Apr. 24, 2012),

https://www.youtube.com/watch?v=liYWT7Ip0J4.



development of an area.226

Modern municipal planning requires heritage preservation to be

integrated into an organic system of managed growth, as it has been in the

European Union since the Venice Charter of 1964.227

While the adaptive

reuse of truly historic buildings is vital to cultural and environmental

improvement, “existing building stock alone can never [sufficiently]

accommodate . . . needs of the evolving business or [residence markets],

particularly in light of rapid technological and social shifts.”228

Targeted

new development, especially in a critical mass of density, “remains critical

to the rebirth of neighborhoods and the vitality of urban economies.”229

American central business districts nationwide, typically, are

architectural “anachronisms” in need of revitalization through adaptive

reuse.230

Office spaces constructed after World War II are now substandard,

featuring “low ceilings, byzantine structural grids, and wasteful [HVAC]

systems” that are energy-inefficient and offer evidence of “‘sick building’

syndrome.”231

Public policy encouraging redevelopment of this building

stock is critically important if American cities will remain competitive.232

Enlightened, adaptive reuse policy statements affecting historic assets’

treatment must clarify each urban area’s comprehensive (or general)

planning goals. For example, the City of Melbourne, Victoria, has

committed in its “Heritage Strategy 2013” to endorse adaptive reuse to

maximize heritage districts’ and historic properties’ potential.233

This

226

DEP’T. OF ARTS, HERITAGE & THE GAELTACHT, supra note 224, at 2–3.

227

See INT’L COUNCIL ON MONUMENTS AND SITE, INTERNATIONAL CHARTER FOR THE

CONSERVATION AND RESTORATION OF MONUMENTS AND SITES (THE VENICE CHARTER 1964)

(1964), available at http://www.icomos.org/charters/venice_e.pdf.

228

A COUNTRY OF CITIES, supra note 28, at 137.

229

Id.

230

Id.

231

Id; see also JAGJIT SINGH, The Built Environment of Fungiand the Development, in

BUILDING MYCOLOGY: MANAGEMENT OF DECAY AND HEALTH IN BUILDINGS 1, 1 (Dr. Jagjit

Singh & Jagjit Singh eds., 1994); Langston, supra note 151151, at 2–3 (cataloging types of

obsolescence).

232

See ALLISON & PETERS, supra note156, at 175 (arguing that LEED standards should be

adjusted to replace the current point system, with one considering a building’s embodied energy,

to encourage more preservation of existing older buildings). Allison and Peters observe that

sustainable communities advocates’ goals are directly in line with the goals of many historic

preservationists, but that sustainable communities groups focus on new green architectural

practices and technologies in building new buildings instead of retrofitting historic assets. See id.

at 166–67.

233

Reference Action 2.8 of the Implementation Plan regarding principles for “adaptation, re-

use and creative interpretation” in updating policies for management of historic assets in the City,



commitment imbeds repurposing old structures as a keystone component of

an overarching sustainable development strategy. A central feature in

Melbourne’s action plan is incorporating principles for “adaptation, re-use

and creative interpretation”234

in the “review of heritage assets in high-

growth and urban renewal neighborhoods as well as in the mixed use areas

of the city.”235

Consideration of appropriate principles is a “first priority

action” in that city’s implementation plan for its heritage strategy.236

It

should have like priority in America’s cities.

E. Enabling Public-Private Partnerships under Redevelopment Agreements

First BC has no champion in the public sector, unless one applauds the

City of Phoenix for refraining from ordering its demolition. No argument is

advanced here that taxpayer dollars ought to be expended for resurrecting a

ruin, unless an old property, by acclamation, is deemed a truly remarkable

expression of American culture or is iconic in some other respect. In

adaptive reuse circles, more concentration should be focused on partnering

with the private sector to restore historic structures to enhance community

growth and sustainability.237

Concerns that the development community will

which action will commence in 2014. CITY OF MELBOURNE, MELBOURNE HERITAGE STRATEGY

2013, at 5, 18, 28 (2013), available at

http://www.melbourne.vic.gov.au/BuildingandPlanning/Planning/heritageplanning/Pages/Heritage

Strategy.aspx. This heritage plan acknowledges that “recent adaptation and reuse of commercial

buildings reflects the changing economic structure of the city.” Id. at 12.

234

Id. at 5.

235

Id. at 18. The “creative interpretation” concept is described in Stephen Brown et al.,

Heritage as Springboard for Creative Enterprise 861 (2011) (unpublished paper, ICOMOS Gen.

Assembly, Paris, France), available at http://openarchive.icomos.org/1300/1/IV-2-

Article10_Brown_Snelgrove_Veale.pdf (“[S]ignificant heritage places . . . can be developed and

presented to satisfy conservation objectives, to shape new forms of cultural identity and stimulate

economic growth.”). The notion, overall, is to “relinquish our privileged role as experts to one of

brokerage; facilitating linkages with creative industries” and acknowledging that heritage can

deliver economically beneficial outcomes in addition to worthy preservation goals. See id. at 869.

236

See CITY OF MELBOURNE, supra note233, at 28.

237

In a questionnaire circulated to 564 citizens in preparing the current North Carolina

Comprehensive Historic Preservation Plan, one question—“What are the top three ways in which

your community could better incorporate historic preservation into land-use planning?”—was

accompanied by nine alternative response choices. “Public-private partnerships” received the

second largest number of votes. See STATE OF N.C., 2013-2022 STATE HISTORIC PRESERVATION

PLAN: LEGACY—A GIFT FROM THE PAST FOR A BETTER TOMORROW 57 (2013), available at

http://www.hpo.ncdcr.gov/NorthCarolina_2013-2022_HistoricPreservationPlan.pdf. For a primer

on rehabilitation tax credits under Section 47 of the Internal Revenue Code, and the latest Revenue

Procedure establishing a safe harbor for allocation of tax credits among partnership members

engaging in rehabilitation work for certain income-producing historic buildings, see Wilson

http://openarchive.icomos.org/1300/1/IV-2-Article10_Brown_Snelgrove_Veale.pdf

http://openarchive.icomos.org/1300/1/IV-2-Article10_Brown_Snelgrove_Veale.pdf



exploit circumstances of financial shortfall can be mitigated by pairing up

commercial developers with non-profits such as the Treasury Historical

Association, organized to restore “architecturally significant” spaces with

special resonance to its members.238

Federal government agencies endorse

adaptive reuse of buildings for private purposes; under Executive Order

13006, federal agencies emphasize reuse of city-center historic buildings,239

while Executive Order 13287 mandates federal government agencies’

partnering with the private sector in repurposing historic properties to

promote local economic development and enhanced productive use of

public building stock.240

“Land use development agreements create public-private partnerships,

causing particular parcels of land to be placed in service in some

manner,”241

generally benefitting the community while potentially profiting

Sonsini Goodrich & Rosati, IRS Publishes Safe Harbor for Monetizing Certain Tax Credits,

WSGR (Jan. 7, 2014),

http://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralert-

rehabilitation-tax-credits.htm.

238

See U.S. GEN. SERVS. ADMIN., PUB. BLDGS. SERV., HELD IN PUBLIC TRUST: PBS

STRATEGY FOR USING HISTORIC BUILDINGS 26 (1999), available at

http://www.gsa.gov/graphics/pbs/HIPT.pdf. The PBS has undertaken “to work hand-in-hand with

organizations and agencies across the country to ensure livable communities . . . . and to “use

historic buildings imaginatively and sensibly . . . to ensure that historic buildings remain a vital

part of our inventory and day to day business.” Id. at 1.

239

See U.S. GEN. SERVS. ADMIN., PUB. BLDGS. SERV., EXTENDING THE LEGACY: GSA

HISTORIC BUILDING STEWARDSHIP 13, 34–73 (2004), available at

http://www.gsa.gov/graphics/pbs/Stewardship2004.pdf (outlining GSA’s most imaginative

examples of commercial building reuse and its disposal of properties, so they might be returned to

more appropriate community uses).

240

See Exec. Order No. 13,287, 68 Fed. Reg. 10,635 (Mar. 3, 2003) (stating agencies shall

examine “policies, procedures, and capabilities to ensure that its actions encourage, support, and

foster public-private initiatives and investment in the use, reuse, and rehabilitation of historic

properties, to the extent such support is not inconsistent with other provisions of law . . . .” The

underlying purpose is to promote “local economic development and vitality through the use of

historic properties in a manner that contributes to the long-term preservation and productive use of

those properties.”); see also U.S. GEN. SERVS. ADMIN., supra note 239, at 18–19.

241

The developer might covenant to perform rehabilitation work on an historic property that

would permit the adaptive reuse of structures for a purpose enhancing the vitality of an urban

center in redevelopment, in return for a community’s modifying land use regulations to

accommodate the adaptive reuse. See, e.g., ARIZ. REV. STAT. ANN. § 9-500.05(H)(1)(e) (2013)

(contemplating “[p]rovisions for preservation and restoration of historic structures”); INSTITUTE

FOR LOCAL SELF GOV’T, DEVELOPMENT AGREEMENT MANUAL: COLLABORATION IN PURSUIT OF

COMMUNITY INTERESTS 11–23 (2002), available at http://www.ca-ilg.org/sites/main/files/file-

attachments/resources__FinalDevAgreement4-5-02.pdf; Lynne B. Sagalyn, Public-Private

Engagement: Promise and Practice, in PLANNING IDEAS THAT MATTER: LIVABILITY,

TERRITORIALITY, GOVERNANCE, AND REFLECTIVE PRACTICE 233, 233–55 (Bishwapriya Sanyal

et al. eds., 2012); Michael N. Widener, Curbside Service: Community Land Use Catalysts to



a private person though development fees or rent and other revenue

generation.242

In many jurisdictions, development agreements themselves

become ordinances243

and, therefore, their provisions supersede existing use

regulations in the city’s zoning code or bylaws to the extent of any

inconsistency.244

Development agreements address concerns among

developers, citizens, and city governments about the potentially adverse

impacts of projects to be constructed.245

In 2014, Bangor, Maine signed a development agreement with Bangor

Housing Development Corporation (“BHDC”) to re-develop the city-owned

portion of the historic Freese Building for commercial space on the first

floor, and middle income apartments on the second and third floors.246

Freese’s opened on Bangor’s Main Street in 1892 and expanded until it

became the largest department store in Maine.247

Once referred to as “Fifth

Avenue in Maine,” Freese’s closed in 1985.248

Today, the Freese building

holds seventy-three residential units and the Maine Discovery Museum.249

The development agreement requires BHDC to invest a minimum of one

million dollars in construction costs, agree to a construction progress

schedule, and install all needed equipment and furnishings in the newly-

developed commercial space.250

The forthcoming improvements

demonstrate opportunities for increased urban center livability when

communities like Bangor take proactive and collaborative approaches to

redeveloping their historic downtown assets.

Neighborhood Flowering During Transit Installations, 45 URB. L. 407, 441 (2013).

242

See INSTITUTE. FOR LOCAL GOV’T, UNDERSTANDING THE BASICS OF LAND USE AND

PLANNING: GUIDE TO LOCAL PLANNING 37–38 (2010), available at http://www.ca-

ilg.org/sites/main/files/file-attachments/2010_-_landuseplanning.pdf.

243

See INSTITUTE FOR LOCAL SELF GOV’T, supra note 242, at 11.

244

Id.

245

See id. at 28.

246

CITY OF BANGOR CENT. SERVS., CITY COUNCIL AGENDA FOR DECEMBER 9, 2013 (2013),

available at

http://www.bangormaine.gov/filestorage/1538/1540/1542/1560/1740/Council_120913.pdf.

247

Downtown History, DOWNTOWN BANGOR,

http://www.downtownbangor.com/index.php?id=2&sub_id=113 (last visited Oct. 1, 2014); NAT’L

TRUST FOR HISTORIC PRES., REBUILDING COMMUNITY: A BEST PRACTICES TOOLKIT FOR

HISTORIC PRESERVATION AND REDEVELOPMENT 42–43 (2002).

248

Downtown History, supra note 248; see Nick McCrea, 3 floors of Bangor’s Freese’s

Building to be Converted into Apartments, Commercial Space, BDN MAINE BUSINESS BLOG Sept.

14, 2014, at 6:17 a.m. (project that began construction on September 9, 2014, will feature first

floor storefronts along Water Street, while second and third floors will be converted into 10

apartment units.

249

Id.

250

See CITY OF BANGOR CENT. SERVS., supra note246.

http://www.google.com/url?q=http%3A%2F%2Fbangordailynews.com%2F2013%2F11%2F29%2Fnews%2Fbangor%2Fbangor-housing-poised-to-move-forward-with-redevelopment-projects-bring-new-apartments-commercial-space-to-downtown-area%2F&sa=D&sntz=1&usg=AFQjCNGnuSk8KdalDXjljqFwxSRWYPgWmQ&ref=inline

http://www.google.com/url?q=http%3A%2F%2Fbangordailynews.com%2F2013%2F11%2F29%2Fnews%2Fbangor%2Fbangor-housing-poised-to-move-forward-with-redevelopment-projects-bring-new-apartments-commercial-space-to-downtown-area%2F&sa=D&sntz=1&usg=AFQjCNGnuSk8KdalDXjljqFwxSRWYPgWmQ&ref=inline



Development agreements may grant a non-profit, independent, historic

preservation advocate certain “watchdog” prerogatives, such as the right to

inspect redevelopment progress of a designated asset and to enforce (similar

to enforcement of a conservation easement’s covenants) a developer’s

covenants addressing the maintenance of certain historic architectural

features of a project.251

Development agreements containing reasonably

strict enforcement provisions and affirmative developer commitments to

maintain iconic or historical elements of edifices may mitigate preservation

advocates’ doubts about public body-monitoring of the work of the

redevelopment’s private parties.

VII. CHARGE TO PRESERVATIONISTS AND URBAN CENTER STAKEHOLDERS

As an urban regeneration tool, historic designation requires relatively

little initial public investment, while affording some protection from

detrimental changes to landmark assets, incrementally achieving “variety,”

place-making, or other community objectives.252

But designation of an

historic asset for preservation cures few urban center revitalization

challenges, nor shelters communities from unintended and negative

consequences253

like increased blight and delayed urban transit synergies.254

Preservation demands more than protection of landmarks; in urban cores, it

must take into account the larger significance of community cohesion and

livability for all citizens.

Consequently, impassioned advocates for historic preservation cannot

merely cause registration of a property and then witness, as a bystander, the

fate of an historic edifice or district subjected to the treacheries of economic

and social trends.255

Stewardship issues will continue without new

251

See Alejandro E. Camacho, Community Benefits Agreements: A Symptom, Not the

Antidote, of Bilateral Land Use Regulation, 78 BROOK. L. REV. 355, 380 (2013). Professor

Camacho suggests that the “affected stakeholders could be assigned key monitoring roles” as to

those “development impacts that will affect them most directly.” Id. (footnote omitted). Such a

“watchdog enterprise” must have a legitimate interest in the agreement’s project above merely

arresting change; a means of gauging the watchdog’s ultimate intentions would be its exposure to

liability for other development agreement parties’ legal fees incurred in defending frivolous

enforcement actions.

252

See Ijla et al., supra note 50, at 279.

253

Id. at 278.

254

Indeed, some argue that planners and city officials, current members of society, lack the

acumen to know what projects will be lasting and timeless, and, hence, worthy of designating for

preservation. Schindler, supra note223, at 515–16.

255

See, e.g., Tomiko Meeks, Freedmen’s Town, Texas: A Lesson in the Failure of Historic

Preservation, 8 HOUSTON HIST. 42, 42–44 (2011), available at



obligations for advocates and improved development opportunities for

sensitive and sustainable projects256

embedded in landmark-designation

processes nationwide. Without such constraints and opportunities, more

listed structures in urban centers ultimately will be lost because they are

simply too decrepit or, in hindsight, too marginal historically257

or too cost-

ineffective to rehabilitate.258

A community’s livability is diminished when

historic properties or sites are desecrated through fire or flood, lack of

proper conservation techniques, or simply are neglected.259

Ruined

landmarks pose health and safety hazards for urban centers, contributing

nothing to their revitalization. Nor does a mothballed260

historic building or

https://houstonhistorymagazine.org/2011/04/freedmans-town-a-lesson-in-the-failure-of-historic-

preservation/ (describing the failure of preserving the historical value and architectural integrity of

Freedmen’s Town enclave in Houston).

256

See Tyler Tully, Attacking Urban Decay: Take Back Neglected Property, THE RIVARD

REPORT (July 25, 2013, 5:00 PM), http://therivardreport.com/attacking-urban-decay-take-back-

neglected-property/ (proposal to allow development of vacant lots or neglected improved parcels

within San Antonio’s historic neighborhoods, that are not suitably maintained and have real

property tax arrearages, by city confiscation in satisfaction of those arrearages).

257

Some believe that all true landmark-worthy sites not previously destroyed have already

been listed. See, e.g., CIVICVISIONS LP, supra note 22, at Executive Summary. Since time and

architectural styles are not “frozen,” this is a logical fallacy; post-modern architectural period

structures are now old enough to be considered for historic designation. See TEDx Talks,

Historical Preservation—A Radical Conservative Liberal Concept: Wayne Wood at

TEDxRiversideAvondale, YOUTUBE (Jan. 22, 2013), https://www.youtube.com/watch?v=DbS-

vL7VZdo; Nat’l Bldg. Museum, D.C. Modern Preservation, YOUTUBE (Nov. 7, 2012),

https://www.youtube.com/watch?v=6YgfvFA295g. 258

Aikins, supra note 91, at 19. This fate awaits City Methodist Church (1925) in the downtown

historic district of Gary, Indiana. Abandoned for decades since its congregation left in 1975, and

now owned by the City of Gary, most of the church is about to be razed except for a few dramatic

architectural features to be stabilized. See Joseph S. Pete, 89-Year-Old Gary Church Turns into

Ruin Gardens, WASH. TIMES, December 6, 2014, available at

http://www.washingtontimes.com/news/2014/dec/6/89-year-old-gary-church-turns-into-ruin-

gardens/. The church site will be converted to a “ruins garden,” a public park hosting weddings,

arts performances and other special events to be determined. See id. This outcome, while

arguably superior to no repurposing, was pragmatic, since prior owners (including Indiana

University-Northwest) did not pursue its redevelopment and its roof entirely collapsed in 2010,

dooming restoration of the improvements. See SOMETIMES INTERESTING BLOG, City United

Methodist Church of Gary, Indiana, Jun. 16, 2013, available at http://sometimes-

interesting.com/2013/06/16/city-united-methodist-church-of-gary-indiana/.

259

See Schindler, supra note223, at 497 (describing the perception that buildings in disrepair

create perception that the community is dangerous, resulting “in people being less comfortable,

staying inside, and disconnecting from their neighbors”).

260

Mothballing is discussed by the National Park Service in its Preservation Brief 31. See

generally SHARON C. PARK, NAT’L PARK SERV., PRESERVATION BRIEFS 31: MOTHBALLING

HISTORIC BUILDINGS (1993), available at http://www.nps.gov/tPS/How-TO-PREsERve/briefs/31-

mothballing.htm#mothballing. The author states: “The steps discussed in this Brief can protect



site advantage a community where an asset lingers, is poorly-utilized, or is

altogether abandoned. These problems are magnified in communities

becoming shrinking cities, coping with persistent population outmigration

coupled with loss of the employment base that spurred the original

growth.261

“Demolition by neglect,”262

where combined poor initial planning and

subsequent inaction compromise historical significance of assets and

revitalization of their neighborhoods, is not community-building. Episodes

of underutilized or marginally-maintained historic assets will be diminished

by thoughtful preliminary utility and sustainability analyses in initial

designation-advocacy processes. Project objectives must be documented

reflectively in the listing-application phase to maximize long-term project

utility and advocate support for an asset’s or district’s sustainability.

Demanding ongoing accountability from stewards of historic assets,

whether NGOs, governmental entities, or private owners, for their current

and future conditions promotes adaptive reuse, enhancing urban center

quality of life.

buildings for periods of up to ten years,” illustrating that the National Park Service recognizes the

obvious fact that a “vacant historic building cannot survive indefinitely in a boarded-up

condition . . . .” Id. at 1. The Park Service does not counsel on the fates of buildings mothballed

longer than a decade, a lacunae that also should be addressed in a revised series of regulations, for

the benefit of structures like First BC.

261

See Catherine J. LaCroix, Urban Agriculture and Other Green Uses: Remaking the

Shrinking City, 42 URB. LAW. 225, 227–30 (2010); see generally Emilie C. Evans, Historic

Preservation in Shrinking Cities: Neighborhood Strategies for Buffalo and Cleveland (May 2011)

(unpublished M.S. thesis, Columbia Univ.), available at http://rightsizeplace.org/wp-

content/uploads/2013/05/Evans_Thesis2011.pdf.

262

Aikins, supra note 91, at 23–24. By this phrase, I intend “neglect” not just of the historic

asset but also of the sustainability and urban renewal frames—in combination, diminishing

livability.