Land Use Committee Weighs Landmark Preservation Law

On Wednesday March 20 the Scarsdale Land Use Committee discussed a draft landmark preservation law to protect buildings and other structures that “represent distinctive elements of the village’s historic, architectural, and cultural heritage.”

The proposed law, drafted by former village attorney and outside counsel, Wayne Esannason, takes a proactive approach to historic preservation by identifying and pre-designating specific homes in Scarsdale, as opposed to reacting to owners’ applications to demolish structures.

Currently, when a property owner applies to demolish most (over 51 percent) or all of an existing structure, the building inspector refers the matter to the Scarsdale Committee for Historic Preservation (CHP), which researches the home and conducts a public hearing to determine whether the application should be approved. Homeowners who do not agree with the CHP’s decision are able to appeal to the Scarsdale Board of Trustees (BOT).

The proposed law would effectively eliminate this process, making the CHP responsible for independently researching Scarsdale houses, together with an outside expert, and informing the BOT about properties that should be landmarked. The BOT may refer the suggestions to the Scarsdale Board of Architectural Review (BAR) for additional feedback but, ultimately, would make the final decision about whether a home is designated. Of course, the property owner would be notified about the process and invited to respond via a public hearing.

The new law also stipulates that, once a property is designated as a landmark, the village code will be amended to include the information, and the Westchester County Land Records Division will be notified of the change so that it can be registered with the county.

Sometimes You Need Just a Change
Currently, the village code has no guidelines or regulations that outline how a historic property can be changed or renovated. If a property owner wishes to alter the structure, he or she submits a request to the BAR, which does not take into account whether the house is historic; BAR decisions are limited by what is articulated in the village code.

The proposed law requires property owners to request a certificate of appropriateness for any modification to a designated home, which would be considered by the BAR, “in compliance with the Secretary of the Interior Standards for Rehabilitation and Guidelines for Rehabilitation of Historic Buildings.” Further, any request to demolish a designated property, in whole or in part, would be subject to stricter requirements, such as whether the structure “is of such age, unusual or uncommon design, texture, and materials, that it could not be reproduced or reproduced only with great difficulty.”

To this, Trustee Seth Ross said, “The review seems to be from a historical, rather than architectural perspective. Why is it that the BAR, rather than the CHP, would be responsible?” Trustee Justin Arest later echoed the concern by saying, “We’re thinking about giving a large responsibility to the BAR… overseeing hardship applications, tearing down a home… These things have nothing to do with aesthetics.“

Esannason responded, “It could go either way, but… because it involves architectural features… you would want a board with a certain degree of expertise… to evaluate changes or modifications to a structure that already has been designated.” Trustee Carl Finger then clarified that there are two possible scenarios – modification and demolition. He wondered why a request for demolition would go the BAR: “It’s not a architectural situation, the issue deals with the historical nature of a property. “ Esannason then noted that the CHP would be notified and/or conferred with prior to any decision by the BAR.

The discussion then focused on hardship cases. A property owner may exercise his or her right to appeal the BAR decision, but what happens next is up for discussion. Esannason stated that, although the draft law states that the BOT would make the final determination, another option to consider is having appeals go directly to court via Article 78 “and not create a series of layers and steps of appeals internally.”

Finger responded, “I think it’s, potentially, a benefit that, before they have to go to court, (applicants) have that safety valve, if they think the BAR is off, they can go to the Board of Trustees before a court filing.” Esannason added, “Another way to look at this is, we’ve had a number of appeals come to the board of trustees in recent years and, in many of those cases, the BOT overturned the decision of the lower board. That was something that the members of the CHP was aggrieved by… it’s a policy decision.”

Ross then stated, “It’s, similarly, a benefit to the village not to have to defend an Article 78… we can deal with something within the village without, hopefully, having to go to a lawsuit.”

The group went on to debate whether various requests should be handled differently, for instance, the BOT should not have to weigh in on whether a property owner wants to add dormers, but, perhaps, the BOT should get involved in requests for demolition.

Mayor Dan Hochvert followed by questioning whether future owners of a designated property would be able to question or appeal its historic designation. Esannason replied, “Once it’s designated, it runs with the land. It’s filed with the Westchester Division of Land Records and maintained in the village code. The only way to be removed is if the board of trustees determines that it should.”

Getting There
After reviewing the code itself, the committee turned its attention to how properties actually would be designated. Village Manager Steve Pappalardo said that the CHP likely would begin its assessment and research with the village’s 2012 Cultural Resources Survey, which provides a “snapshot” of just over 70 properties deemed to have historical significance. With the help of an expert consultant, such as Dr. Andrew Dolkhart, the CHP would develop a record to support each designation and then provide its recommendation to the BOT for consideration. The process will not be completed overnight, however; rather, it will likely take years due to budget constraints. Pappalardo reported that, after preliminary discussions with consultants, it would cost an estimated $3,000 to $5,000 to assess each home. So, it is more reasonable to assume that just 15 to 20 homes would be assessed annually; given that the village will start with at least 70 homes, the process could take five or more years to complete.

Because the foundation of any effective landmark preservation law is strong support for each landmark determination, it is important for the CHP and consultant to completely and accurately record information on every house to withstand the review process and reduce questions in the appeals process.

So, even if the code is adopted, it will be a while before residents actually feel its impact. The existing review processes for alterations or demolitions of particular homes will remain, likely until a certain number of houses have been deemed historic. The village probably will create a “sunset provision” to transition to the new law that indicates when the existing code will no longer be in effect.

What Say You?
Trustee Jane Veron then asked members of the public to contribute their thoughts. Kevin Reed (6 Kensington Road), who is a member of the CHP said, “The procedure by which the BAR can issue a certificate of appropriateness for demolition seems to me to be a dangerous undermining of what we’re trying to do here… To provide for a circumstance for a building to be ‘undesignated,’ the criteria ought to simply be (that it) no longer meets the criteria that led to it being designated in the first place. And this should be posed to the board that made the designation. The burden should be on the applicant to prove the changed circumstances… To me, once something is designated, it should be presumed that it isn’t in the public interest for it to be destroyed.”

Carl Pforzheimer (16 Tompkins Road) stated, “You should think about whether we’re talking about demolition or ability to sell… I live in an old house and am proud to do so… to severely restrict my ability to sell my home… is not… ‘promoting the economic, cultural, educational, and general welfare of the residents of the village…’ Before the village begins to landmark buildings… much thought should be given to exactly why the village needs this proposed law, why it might not, and, especially, to the proposed law’s broad scope. Thought also should be given to the burden of landmarking, especially to homes that have outlived their earlier charm. Indeed the continuing vitality of the village comes from young, new residents, bringing with them fresh, new ideas. “

Ellen Zweig (53 Old Orchard Lane) followed, “We ended up buying (our) house because we liked the location… We’ve spent close to $500,000 since buying that house, on improvements, and I don’t think that’s reasonable to expect… By passing such a law, you’re taking away all the rights of the property owner. You’re turning their house into a museum… for other people to look at and not for the owner to live in… When a house is in a right of way… and a town needs to widen the road, they condemn the house… but they buy the house from the owner. I think you’re, essentially, doing the same thing but you’re not providing any financial remuneration to these poor owner who have to maintain these very old houses.”

Laura Gelblum (45 Brewster Road) said, “You have to be careful about this… I do agree that we have to think about all the constituencies and the burden it might place on the property owner… There’s been a lot of talk on what we can do to preserve the homes, but I’d really love to see some creative thinking about what we can do to incent builders and buyers to renovate. Is there something we can do to make the renovation more appealing than the teardown?”

In response, members of the committee asked if it was possible to create a local tax incentive; Elizabeth Marrinan, the Village Planner, and Esannason reported that it was not possible, but property owners may be able to apply for federal tax credits. After additional discussion about how “valuable” a historic designation might be, Finger stated, “One of the concerns we have, is that your house could be historical but we don’t know it. Then.. you go before the CHP and find out its historical, and, maybe, it’s better that you know ahead of time… at minimum, you can plan accordingly, market your house accordingly.”

In discussing next steps, Arest expressed that he’d like to get the CHP and BAR involved in reviewing and commenting on the draft. He also mentioned, “I’d love a multi-tier structure of some kind, with the really, historic houses at the top… then a second tier, where you’re designated of sorts, and the restriction is that the BAR has a little more say in terms of what you can do… It’s one of the conversations I hope we can have.”
Ross said, in moving forward, it was important to note that, “We’ve tried to use the historic preservation law as a way to preserve the character of neighborhoods. That’s not really the function. The function of an historic preservation law is to protect a specific structure that is of historic value.”

Ehud Gelblum (45 Brewster Road) followed by saying, “Is the purpose to keep the character of our neighborhoods… or is it to preserve historical structures? … What if we happen to have a home that George Washington slept in for a week, but it’s an ugly house with bursting pipes? Do we keep it? Or what if we have a house done by a master, but it’s (not a nice) house…. Do we care about historical… or are we using this as a vehicle to get to preserving the character of what we think is, know is, Scarsdale? Do we get rid of the whole ‘historic’ concept and… go into the ‘these houses in this area should look like this.’ I don’t know if that opens up a whole other can of worms, but it allows… someone who wants to tear something down (to do so)… maybe the BAR is tasked with (enforcing) criteria and (saying) this is exactly what it’s going to look like.”
Veron closed the meeting by reminding the group that the issue is clearly complicated, and more discussions will take place as the new board of trustees considers a host of land use priorities.