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The Effects of Smart Growth on the Preservation of Historic Resources

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Abstract:

This paper will explore the rise of “smart growth” as an antidote to the harms of single-use, or Euclidean zoning, a form of land use that is declining in popularity as the negative effects of foreclosures continue to rise. In blighted or suburban sprawl-type areas—conditions exacerbated by the failure of risky lending patterns—arguments in favor of smart growth seem obvious. Little attention has been paid, however, to implementation of smart growth concepts inside or adjacent to nationally registered historic districts. Special issues arise with respect to historic districts, which face heightened development problems due to scarcity. Historic districts also operate under additional layers of law designed to regulate not only the height, scale, and mass of new construction, but also its aesthetics and effect on the surrounding historic setting or atmosphere. Therefore, land use decisions in favor of smart growth create legal implications in terms of historic preservation law on national, state, and local levels. To the extent that existing historic preservation law developed against the backdrop of single-use zoning, questions emerge: Which law controls? Are the concepts compatible?
Current research of communities throughout the fifty states shows only a handful of “smart codes” adopted by cities with significant historic resources. Although smart growth concepts and historic preservation policy are not mutually exclusive, it is not clear how smart codes, if adopted, will interface with existing preservation law, which may or may not be consistent. Areas where the two types of laws may collide include (1) incentives for increased density, (2) encouragement of different types of uses, and (3) aesthetic choices. Specific concerns relate to the physical stress on historic resources that increased density typically generates, livability issues, a “Disneyfication” of architectural forms that diffuses the distinction between old and new, and a sameness that results when planning results from pre-approved forms. Moreover, if existing boards of architectural review are not included in the process of developing these forms, their jurisdiction may be compromised. If compromise at this level occurs, developers will face an unclear rule of law and increased litigation risks.
The paper will use specific examples from Santa Fe, New Mexico; Miami, Florida; Denver, Colorado; and Charleston, South Carolina, to evaluate how cities with different histories have tailored or are working to implement smart growth concepts to meet the special needs of historic resources, or whether they have subverted historic preservation—intentionally or otherwise—in favor of smart growth. Based on preliminary research, the paper will likely conclude that one smart code “size” does not fit all. Smart growth and historic preservation can exist in harmony with one another, however, provided that smart growth is tailored to an historic community’s particular needs. To this end, the paper will suggest strategies for communities to mitigate the most common concerns.

William J. Cook
Assistant Professor
Charleston School of Law
P.O. Box 535
Charleston, SC 29402
Tel: (843) 801-3366
Email: wcook@charlestonlaw.edu
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Name: The Law and Society Association
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http://www.lawandsociety.org


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URL: http://citation.allacademic.com/meta/p407451_index.html
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MLA Citation:

Cook, William. "The Effects of Smart Growth on the Preservation of Historic Resources" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL, May 27, 2010 <Not Available>. 2014-11-27 <http://citation.allacademic.com/meta/p407451_index.html>

APA Citation:

Cook, W. J. , 2010-05-27 "The Effects of Smart Growth on the Preservation of Historic Resources" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL <Not Available>. 2014-11-27 from http://citation.allacademic.com/meta/p407451_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: This paper will explore the rise of “smart growth” as an antidote to the harms of single-use, or Euclidean zoning, a form of land use that is declining in popularity as the negative effects of foreclosures continue to rise. In blighted or suburban sprawl-type areas—conditions exacerbated by the failure of risky lending patterns—arguments in favor of smart growth seem obvious. Little attention has been paid, however, to implementation of smart growth concepts inside or adjacent to nationally registered historic districts. Special issues arise with respect to historic districts, which face heightened development problems due to scarcity. Historic districts also operate under additional layers of law designed to regulate not only the height, scale, and mass of new construction, but also its aesthetics and effect on the surrounding historic setting or atmosphere. Therefore, land use decisions in favor of smart growth create legal implications in terms of historic preservation law on national, state, and local levels. To the extent that existing historic preservation law developed against the backdrop of single-use zoning, questions emerge: Which law controls? Are the concepts compatible?
Current research of communities throughout the fifty states shows only a handful of “smart codes” adopted by cities with significant historic resources. Although smart growth concepts and historic preservation policy are not mutually exclusive, it is not clear how smart codes, if adopted, will interface with existing preservation law, which may or may not be consistent. Areas where the two types of laws may collide include (1) incentives for increased density, (2) encouragement of different types of uses, and (3) aesthetic choices. Specific concerns relate to the physical stress on historic resources that increased density typically generates, livability issues, a “Disneyfication” of architectural forms that diffuses the distinction between old and new, and a sameness that results when planning results from pre-approved forms. Moreover, if existing boards of architectural review are not included in the process of developing these forms, their jurisdiction may be compromised. If compromise at this level occurs, developers will face an unclear rule of law and increased litigation risks.
The paper will use specific examples from Santa Fe, New Mexico; Miami, Florida; Denver, Colorado; and Charleston, South Carolina, to evaluate how cities with different histories have tailored or are working to implement smart growth concepts to meet the special needs of historic resources, or whether they have subverted historic preservation—intentionally or otherwise—in favor of smart growth. Based on preliminary research, the paper will likely conclude that one smart code “size” does not fit all. Smart growth and historic preservation can exist in harmony with one another, however, provided that smart growth is tailored to an historic community’s particular needs. To this end, the paper will suggest strategies for communities to mitigate the most common concerns.

William J. Cook
Assistant Professor
Charleston School of Law
P.O. Box 535
Charleston, SC 29402
Tel: (843) 801-3366
Email: wcook@charlestonlaw.edu


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