By: John C. Lesher
I have reviewed the proposal for the creation of an Historic Preservation Commission being considered by the Town Council and am concerned about this legislation, particularly with what I regard as the lack of foresight and evaluation of the unintended consequences of this action. The HPC’s mandate will be to choose which properties in Westfield will be designated as “historic.”
A home is the typical American’s largest financial asset, and enormous influence over the financial security of all town residents will be handed to nine unelected Commission members, eight of whom are to be appointed by the Mayor. That appointment power without third-party review has the potential to become deeply political. None of these appointed individuals will have public accountability, and some of them do not even have to be residents of the Town. Yet, they will wield enormous power. In general, there appears to be no limit to the Commission’s powers of designation, other than extremely vague and subjective criteria of evaluation contained in the ordinance.
What IS clear in the ordinance is that once a property is designated as “historic” severe restrictions on property improvements and sales will be imposed permanently on the designated properties and the property owners. Rights of appeal of the designation of any property or district as “historic” are notably weak. To my mind, the cumulative effect of this ordinance—zero accountability of decision-makers and little or no rights of protest-- is a taking of property without proper compensation—a constitutional violation.
I see little consideration of how this will play out in the real world. As currently proposed in the ordinance, individuals who desire to purchase a pre-1930 home (such as your author’s), demolish it and build anew will have to wait several weeks—perhaps months--for a ruling on a demolition permit according to the timeline in the legislation. Defenders of the ordinance claim that this demolition restriction applies only to developers. That is simply wrong. I know of several homes in Westfield purchased and demolished by individuals who were not developers. Also, what about a property owner not attempting to sell, who simply decides to do an extensive renovation involving demolition?
There isn’t a lawyer in this State who, once hired to represent a residential purchaser wishing to demolish a pre-1930 home, won’t fail to place language in the contract of sale that gives the purchaser the right to withdraw from the contract without penalty if a decision on the property’s historic designation is not delivered within a relatively short period of time. Financial institutions will follow suit and financing will be problematical. This probably will lead to a two-tiered residential market—pre and post-1930. I fear that because of the uncertainty caused by the Historic Preservation Commission ordinance, properties constructed pre-1930 will suffer an immediate diminution of value.
Is the HPC prepared to give immediate responses to the many inquiries for designation that could flood it? The extended period of time in the ordinance for review and decision concerning a demolition request is deeply harmful to a seller or renovator. I am opposed to this entire ordinance but, at the very least, the proposed legislation should have the following changes: (1) a short statutory time limit in which the HPC must rule on demolition requests by owners or in-contract purchasers: failure to rule in a timely manner --say, 7 days--should mean that the home in question is not to be considered historic, nor can it be reconsidered for historic designation at a later date. Demolition could then proceed as requested; (2) a meaningful process of appeal whereby an affected homeowner can successfully challenge an historic designation.
Finally, what magic is there in 1930? Is there some architecturally recognized era that 1930 divides from another historic period? I think not—it appears to be purely arbitrary and will fail for vagueness if ever challenged in court.