You Need Standing to Keep a Building Standing
Virginia has long been a leader in historic preservation. But historic structures are still lost, even in the Commonwealth.
A building dating to the 1790s was recently demolished in the city of Richmond. Despite its age and history, the property was not in a protected, historic district. Historic districts are important to developers, investors, and preservationists for various reasons.
A locally designated historic district prevents demolition of a structure unless the owner has obtained a certificate of appropriateness from the locality’s architectural review board. State and nationally designated historic districts enable developers and investors to obtain tax credits for rehabilitation of historic structures.
Because the 1790s Richmond building was not in a locally designated historic district, city government was powerless to save the building. But even being in such a district is not always enough.
Recently, the owners of a historic structure in the locally designated Old and Historic Fredericksburg District were granted a certificate of appropriateness to demolish the structure, which was about 15 yards from Historic Fredericksburg Foundation’s headquarters building constructed in the 1740s.
The initial decision, by Fredericksburg’s architectural review board, to grant the certificate proved significant, because each body that subsequently considered the matter gave deference to the prior body’s decision.
The Historic Fredericksburg Foundation filed a legislative appeal to the Fredericksburg City Council, which upheld the review board’s decision.
The foundation then petitioned the Fredericksburg Circuit Court, which upheld the city council’s decision.
The foundation then appealed to the Court of Appeals of Virginia, which agreed with the City of Fredericksburg and the circuit court: The foundation did not have “standing” to contest the demolition.
To seek a legal remedy, you must have standing, that is, a direct interest in the matter, different from the public generally. The appellate court decided that the foundation—despite being headquartered in a historic building within yards of the historic structure to be demolished, and despite being a leading preservation organization in a historic city—was not an “aggrieved” party, and therefore did not have standing to contest the demolition. Historic Fredericksburg Foundation, Inc v. Fredericksburg City Council, et al. (VCA No. 0822-23-2).
Although location within a locally designated historic district does not guarantee preservation of a structure, it greatly increases the odds for success; therefore, preservation proponents should try to ensure that vulnerable old and historic structures are included within such a district.
And because deference is given to the decision of the prior body that considered the matter, preservationists should focus their efforts, from the beginning, on each stage of the administrative, legislative, and judicial process. Otherwise, to use a football analogy, the “ruling on the field” might stand, and therefore the building might not.
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If you have any legal questions regarding historic properties, please contact Stefan Calos or a member of our Commercial Real Estate Team today.
