Former Members of the Committee for Historic Preservation Suggest Changes to Preservation Code

After the entire Committee for Historic Preservation resigned their seats in November, it became clear that the current Village Code regarding preservation needs to be revised. Committee members said that Scarsdale's current law, which is even more stringent than state and federal guidelines for preservation, make "preservation nearly impossible in Scarsdale." Now these former committee members have made suggestions for how the code can be revised to be more effective. See below:

Suggestions for Improvements to the Scarsdale Village Code December 12, 2017
William Silverman, Alan Steinfeld, Joyce Hirsch, Barbara Jaffe, John Cromwell, Abigail Olsen, and David Peck Former Committee for Historic Preservation

Following our resignation from the Committee for Historic Preservation (the Committee), we met with Mayor Hochvert to discuss proposed changes to the Village Code. At the Mayor's request, and with the intent to promote a workable and reasonable legal framework for preservation in Scarsdale, we have drafted this memorandum containing our main suggestions. It should be noted that these ideas are standard practice in countless towns and cities across the country. We have attached copies of two such local examples: the Bedford and Mamaroneck preservation laws.

1. Bring the preservation requirements in line with the State and Federal guidelines

a. Explanation: Criteria number three under section 182-5 of the Village Code requires that "the building is the work of a master and embodies the distinctive characteristics of a type, period or method of construction that possess high artistic values." (emphasis added) This standard is significantly more stringent than the New York State and Federal standards which provide: "Properties may be eligible for the National Register if they 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."

b. Suggested Change: Adopt the federal and State standard by changing "and" to "or." The Village's standard does not adequately protect certain historic homes. Of importance here, the Committee could not always determine the identity of the architect or builder. Indeed, the Building Department only started requiring plans to be filed with the Village in 1923 so it is often impossible to determine the architect or builder for homes built prior to that date. In the absence of that information, it was especially difficult for the Committee to reach consensus on whether the home is the work of a "master." The Village Code does not provide any guidance on this point. Federal law does provide guidance but sets a narrow, challenging standard in such an instance: "The work of an unidentified craftsman is eligible if it rises above the level of workmanship of the other properties encompassed by the historic context."

Under the Village preservation standard -- which, as far as we know, is not followed anywhere else -- there is no question that homes which otherwise meet criteria number three were approved for demolition by the Committee because a majority was unable to agree that they were the work of a "master." To the extent a home "embodies the distinctive characteristics of a type, period or method of construction that possess high artistic values," we believe such a home should be eligible for preservation regardless of whether there is a sufficient basis to conclude that the home is the work of a "master." The federal and state standard appears in countless codes, including Mamaroneck (§ 218-5- B) and Bedford (§ 71-22-B).

Changing the "and" to an "or" does not mean that all works of a "master" would be eligible for preservation. Again, using federal law as a guide, the home must also "express a particular phase in the development of the master's career, an aspect of his or her work, or a particular idea or theme in his or her craft." The main takeaway here is that preserving a home because it is the work of a "master" is a separate and independent ground for preservation that should not be conflated with other criteria.

2. Historic preservation should be proactive

a. Explanation: Under current law preservation only attaches at the moment the homeowner intends to demolish more than 50% of a home.

b. Suggested Change: The preservation process should not simply be triggered by a request for demolition. The Village should hire an expert such as Professor Dolkart to complete a thorough survey of the Village and identify houses which should then be designated as historic.

When preservation is only raised at the time an owner wants to demolish the home, the process only invites conflict. The goal of a preservation statute should be to make historic designation both a socially and financially desirable circumstance. There should be a strong message from Village leadership that preservation is important along with an effort to raise public awareness. Historic designation should be accompanied by the awarding of a plaque, recognition in the paper, and a meaningful decrease in the tax assessment in recognition of the potential decrease in resale value. Also, a homeowner should be able to apply for such designation.

The Bedford preservation law (§ 75-25-A) provides for the ongoing recommendation of historic houses, as does the Mamaroneck code (§ 218-3-C-2).

In addition, when building permits are sought for significant work (but which does not constitute demolition of more than 50% of the structure), there should be some mechanism for the Committee to be included in the approval process for potentially historic homes. It is unacceptable that under current law an owner can demolish up to 50% of an historic home without the Committee's knowledge, much less consent.

3. Protect historic neighborhoods in addition to particular structures

a. Explanation: Under current law preservation applies only to individual structures.

b. Suggested Change: Scarsdale should consider providing protection for historic neighborhoods. This is standard practice in preservation codes throughout the country. Taken together certain homes have greater historic significance than when each is considered in isolation. Residents routinely would plead with us at meetings not to permit demolition because it would, in their view, undermine the historic character of their neighborhoods. The Reconnaissance Level Cultural Resource Survey from 2012, among other things, identified certain study areas which "have the potential to be historic districts." (at 1-2) We recommend that the Village pursue additional research and field study to define certain historic districts and their boundaries.

4. Broaden the makeup of the Committee

a. Explanation: Only Scarsdale residents may be Committee members and there is no required expertise among any of the members.

b. Suggested Change: It is important for the Committee to have access to expertise, as needed, to make informed decisions. Specify that an architect or architectural historian be on the Committee and allow one committee member to be from outside the Village if necessary. Adding someone from the Historical Society and a real estate professional to the Committee would make sense as well. Both Mamaroneck (§ 218-3-B-1) and Bedford (§ 71-23-B) follow this model.

5. Require a complete and better supported application

a. Explanation: The Village does not require very much from applicants in terms of information or supporting documents. This places an undue burden on a volunteer board.

b. Suggested Change: At a minimum, the Village should require applicants to submit copies of the Building Department and Tax Assessor's records so the Committee does not have to go scrambling for them. To the extent an applicant cannot determine who the architect is, the applicant should at least have to specify what steps were taken to find out the information. In addition, the Committee should have the discretion to take reasonable additional time to review an application so that a proper record can be made. Recently, the Trustees pointed to the fact that the Committee failed to present substantial evidence of who the architect was for a particular home. If the Committee had more time in that instance, the result may have been different.

6. Ensure that the hardship exception does not sallow the whole preservation code

a. Explanation: In the case of 12 Dolma Road, the Trustees overturned the Committee -- as well as its own determination that the property should be preserved -- on the basis of "hardship," thereby calling into question whether this exception renders the entire code meaningless.

b. Suggested Change: The Scarsdale Village Code appears to be substantially in line with hardship provisions from other jurisdictions. We do recommend, however, that an applicant should have to establish "substantial hardship," as found in the Mamaroneck code (§ 218-7).

The problem with respect to "hardship," in our view, is not as much a function of the specific code provision as it is the Trustee's lack of interest in enforcing the law. The Earl Graves home suffered a similar fate as 12 Dolma Road because the Village was unwilling to accept litigation risk and/or unwilling to spend money to defend its position. A preservation code is only as strong as the Village's resolve to enforce it even when -- especially when -- the homeowner hires a lawyer and threatens litigation.