Vagueness and Landmarking

AND THE HAMMER OF JUSTICE COMES DOWN

Earlier this year a Chicago lawsuit hobbyist with lots of money and neighbor-management issues got the Illinois Appellate Court (“Precedent? We don’t need no stinking precedent!”) to strike down the Chicago Landmarks Ordinance based on its “vagueness,” so naturally someone else thought they could pull the same sort of isolationist garbage elsewhere, namely Seattle.

They just LOST BIG TIME. Read about it on PreservationNation:

Turns out the Washington Court of Appeals rejected the “vagueness” challenge by recognizing the OBVIOUS: Landmarking is a process that encourages the preservation of historic sites, districts and structures, based on the criteria that those sites, districts and structures possess. This is not vague, it is entirely specific: you cannot detail what needs to be preserved in all situations because each sites, district and structure has its own individual characteristics that make it significant. Landmarking treats buildings like individuals, not categories.

The court said it better than I can, explaining that the supposedly “vague” standards, “gain specificity from application to a particular landmark and particular proposal.”

Or even better, they noted that because “each landmark has unique features and occupies a unique environment, it is impracticable for a single ordinance to set forth development criteria or standards that could apply to every landmark.”

This is what I have been saying all along (see my post “Appellate Nuttiness” on January 31, 2009).

Now, I understand that people, and even judges, are more comfortable with absolutes and doctrines and everything being the same. But everything isn’t the same, or I could use my Epson printer inks in the Hewlett Packard, but I can’t.

Turns out a vagueness challenge is one of the first things you learn, sort of a Lawsuit 101. See Gary Cole’s blog here.

Here is what the court said:

“The doctrine of vagueness does not require a statute to meet impossible standards of specificity”

The crude medicine of basic zoning and building codes offer predetermined absolutes and specific standards: you must set back 5 feet, you are limited to this square footage, you are required to have this many exits, etc. Everything is the same and every building is treated the same, and you know what is going to happen before it happens and there is no vagueness. It is the sort of straightforward rules and procedures one needs to successfully operate a pre-school day care facility.

But for grownups, the world has nuances.

People are individuals, not numbers.

Communities are individual as well.

Oak Park does not equal Evanston and Palo Alto does not equal Santa Barbara and Mystic does not equal Marblehead and Nashville certainly is not equivalent to Knoxville.

Within Chicago, the Villa does not equal Wicker Park and the landmark review process will not follow the same path on an Astor Street Georgian Revival that it will on a South Shore Foursquare.

Landmarking is a PROCESS, and reviewing changes or additions to landmarks is also a PROCESS, and the rules are defined individually for each landmark. Every Chicago Landmark, when designated by the City Council, includes a list of significant architectural and historical figures so that every owner knows what is important about their building. But what is appropriate for a bungalow may not be for a Queen Anne, and vice versa.

Here’s one for individualism. Thanks, Washington state.

WEDNESDAY UPDATE FROM SAIC HPRES STUDENT MITCH BROWN:

“Connor is denied on each and every count. I hope the good judges of Illinois’ Supreme Court read the decision.

Deprivation of substantive due process – NOPE, landmark preservation is a legitimate state interest.

Regulatory taking – NOPE the safeguarding of the public interest in legitimate in this sphere (they got RFRA wrong)

Hidden indirect tax, fee – NOPE even had the SLPB required the stipulations Connor’s alleges (which they didn’t) it would’ve been in the service of mitigation in protection of the Ordinance 11022.

Wrong application of the Law 20 – NOPE as the hearing examiner properly applied SMC since under SMC and Standard 9, Connor’s proposal would adversely affect the landmark and there were alternatives available. Connor’s argument rests on his insistence that the “owner’s objectives” are not subject to review (who is this guys lawyer!?) “A party who purchases a property subject to agreed upon landmark controls cannot thwart those controls by defining his objectives under SMC entirely in terms of the return he wishes to make on the property” (hearing examiner with court concurrence)

“The Landmarks Preservation Ordinance is impermissibly vague because it does not tell me exactly what I can do with my property” – REJECTED – Can Conner ascertain the requirements for an acceptable project? – YES – The LPO contains both contextual standards and a process for clarification and guidance as to individual sites.

LPO and Ordinance 11022 describe specific features to be preserved with corresponding contextual standards for application.

“The doctrine of vagueness does not require a statute to meet impossible standards of specificity” I like this one the best.

“Clear Error” NOPE – Court reviewed hearing examiners review which was based on publicly passed Ordinance 11022, not the Report on Designation used by the Board.

Scope of the Designation? Is the site protected? Connors – ” ‘Satterlee House and Satterlee Residence’ is proof the city council intended only the house and not the site to be recommended…!”

Lets all hope Hanna and Mwroka’s cases are as ham-fistedly argued as Connor’s was.

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roast this chestnut

It is a reflective time of year and I was reflecting on the oldest, most thoroughly roasted chestnut of all. One of the most frequent anti-preservation arguments, it goes something like this.

“If we had preservation laws back then, X would never have been able to build Y.”

(Where X = Daniel Burnham or Frank Lloyd Wright or Mies van der Rohe or any other resplendent architectural genius; and Y = Reliance Building or Guggenheim Museum or Crown Hall or any other munificent architectural landmark.)

This is an intriguing position, a sort of “dropped from heaven” philosophical argument that works in the brain even though it doesn’t in the world, which is overdetermined, messy and complex now matter how hard you wish.

We have examples that seem to support this position. Mies van der Rohe’s Crown Hall was built on the site of the Mecca Flats, the architectural and historic center of Chicago’s Black Metropolis, and there was even an effort to save it.

Also in Chicago, we have the Field Building, built in 1934 on the site of the first skyscraper, the Home Insurance Building. In fact, they only proved the Home Insurance was the first skyscraper by dismantling it.

But there are several problems with the argument. The most important is the “gotcha” implied: if we had preservation laws, we never would have built the landmarks we now try to preserve – and isn’t that ironic.

No. First, it is wrong on the face of it – preservation laws have been around for at least two thousand years. This is why the Pantheon is still there – an excellent example of multiple adaptive re-use projects over the years. Even in the absence of laws, people have saved buildings that were functionally pointless and worthless – like the Chicago Water Tower, which Chicago saved at least three times (1906, 1918, 1948) before there were any preservation laws.

Second, the assumption that preservation somehow inhibits new development is laughable. Did Frank Lloyd Wright or Mies van der Rohe need an infinite number of potential building sites in order to be creative?

Today, in 2008, if you landmarked every single building identified in the Chicago Historic Resources Survey, and added those to every building already landmarked in the city, what percentage of the city would be inhibited from development? Of course, the real answer is 0, since a creative developer can work with existing buildings, but even if all developers were knuckle-dragging mouth-breathers (which they aren’t) you would have landmarked less than 3% of the city. Okay guys, you only have 97% of the city to work with: are you feeling inhibited?

Third, the argument implies that the past was bold and the present is timid. We whine and save our precious relics while our noble ancestors snorted, thumped their chests, strapped on, rode roughshod and made history.

I said to Bruce Sheridan the other night there are two mistakes you can make when judging people in the past. You can make the mistake of assuming that they were smarter than us and you can make the mistake of thinking they were stupider than us. The same holds for braver, stronger, etc. We tend to idealize or marginalize the past and both attitudes are WRONG.

High Modernist architects like Le Corbusier added fuel to the anti-preservation fire by proposing to demolish central Paris and inventing urban renewal, which laid waste to vast swaths of historic buildings worldwide. Modernists, more than the architects before them, seemed to disdain past architecture, but that is deceiving, because they disdained the IMMEDIATE PAST while revering the DISTANT PAST.

Le Corbusier loved the Parthenon and waxed rhapsodic about “When the Cathedrals were white.” The Paris he sought to demolish was only 50 years old, the High Victorian Second Empire of Hausmann. Gropius launched the Bauhaus with the visual and narrative image of a Gothic cathedral. Wright had great disdain for the Queen Anne architecture around him in Oak Park but he loved the vernacular barns and farmhouses of the Midwest. Every modernist wanted to save something: the only difference was in what they valued.


This brings us to the fourth and least tested aspect of this misguided aphorism. If places that preserve stifle creativity and new landmarks, then where are the landmarks of tomorrow? Well, they must be in Houston and Atlanta and Orlando or other places that don’t landmark much. They can’t be in Manhattan, which has preserved so many buildings and districts, or Chicago.

And the idea that anything new or creative could be in Paris or London is completely out of the question, right?


WRONG. Time to take this hoary chestnut off the fire because there is nothing left but a charred husk.