Speaking of exams ...
As many of y'all know, I teach a graduate course in Historic Preservation
Law, in the Master's program in Historic Preservation at Eastern Michigan
University.
Here's the final exam I gave to my students last month (text follows the
dashed line below).
The situation, location, characters, etc., are all completely fictional,
but the basic legal issues are quite real.
The original exam had a map showing the lot boundaries and buildings.
All of the students earned at least passing grades on this exam. Indeed,
the majority got A's for the course.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
FINAL EXAM
Historic Preservation Law, Winter 2000
On the northeast corner of Brogan Road and Willowtree Road, on the
edge of the city of Herbertville, in Red Maple County, Michigan, is a
ten acre parcel of land, 1320 feet east to west by 330 feet north to
south.
In 1857, this parcel and much of the surrounding area was purchased by
Henry Grisham, who built a red brick cross-gable Gothic Revival
farmhouse with lancet windows and gable finials. Grisham was later
one of the founders of the city of Herbertville.
By 1965, growth had come to the vicinity. Brogan Road was widened to
four lanes and became one of the main routes into Herbertville. The
ten acre parcel, including the farmhouse, was bought by developer J.
L. Mullen. He demolished all of the farm barns and outbuildings, but
let the farmhouse remain.
In 1967, the parcel was annexed to the city of Herbertville and zoned
for commercial use, with 40 foot minimum set back requirement.
Mullen divided the property into five lots fronting on Brogan Road,
numbered 1 through 5, with the farmhouse on Lot 5.
On lots 1 through 4, he built four units to form one long continuous
one-story flat-roofed mall structure, of concrete block faced with
glazed gray brick, with horizontal stripes done in glazed black tiles.
A walkway was built along the entire south front of the building,
covered by a canopy supported on square steel columns.
The basic design was originally by architect Harry Genotti, who had
studied briefly with Gropius in the 1940s. Mullen never had any
contact with the architect, but obtained Genotti's sketches from
another developer and used them again and again.
The complex was called Swampland Mall. A 40-foot-tall neon-lit
freestanding sign was installed in the front of Lot 1, spelling out
the name SWAMPLAND MALL in huge green letters
The commercial spaces were rented to various tenants. Lots 1 through
5 were all put up for sale in 1968.
Since Mullen was concerned that later owners might change the four
mall sections and break up their consistency of appearance, the deeds
for Lots 1 through 4 contained a restriction that required all future
owners to maintain the same flat roofline, unpainted glazed gray brick
with horizontal black tile stripes, square steel columns, and 120 foot
front setback that were all in place in 1968, unless all of the owners
agreed to the change. Owners were also required to maintain their
part of the common front walkway, parking lot and signage for the
benefit of all the stores in the mall. The restrictions were set to
expire in the year 2007.
Lot 5, with the Grisham farmhouse, was sold to Millicent Adams. She
converted the house into a French restaurant (Cafe Francais) while
preserving its historic character. The other four lots were sold to four
different commercial landlords.
J.L. Mullen, who built many similar malls in various parts of the
country, went bankrupt in 1974 and died soon afterward with no assets
or heirs.
In 1988, the city of Herbertville appointed a Historic District Study
Committee, which recommended a Historic District Ordinance to protect
historic structures from demolition or unsympathetic changes. The
ordinance (very much like other historic district ordinances in other
Michigan cities) provided that exterior changes to designated
structures would be subject to review and approval by the city‘s
Historic District Commission. The ordinance was adopted by the
Herbertville City Council.
The HDSC also recommended the Grisham Farmhouse as an individual
historic landmark under the historic district ordinance, citing its
historic value as the home of one of the city's founders, and its
architectural value as one of the few surviving examples of Gothic
Revival in the region. The ordinance amendment to designate the
Grisham Farmhouse was adopted by the Herbertville city council.
In 1997, the Herbertville Historic District Study Committee, at the urging
of the "Red Maple County Mall Preservation Alliance" (RMCMPA), recommended
designation of the Swampland Mall as a historic district, citing its
architectural value as good example of a late International Style strip
mall. The ordinance to designate the Swampland Mall Historic District
(consisting of lots 1 through 4) was adopted by the Herbertville city
council.
Now it is 2000, and the following is going on:
The owner of Lot 1 is MICHAEL O'HARA, a member of RMCMPA. He strongly
supported historic designation for Swampland Mall, and is opposed to
any changes to its character defining features. He would like to
donate a facade easement on Lot 1 to the RMCMPA, and take the
associated federal income tax deduction. Further, he would like to
restore the building and get federal income tax credits for doing so.
The main store of Veenstra's Carpeting has occupied all the commercial
space on Lot 2 for more than 20 years. The owner, VICTOR VEENSTRA, is
dissatisfied with the plain look of Swampland Mall, and wishes to add
wood siding, a mansard roof, and dormers to his part of the building.
He has applied for a building permit.
Lot 3, occupied by a drugstore and a sewing shop, is owned by HAROLD
NEWMAN. He wants to demolish the building to build a franchise fast- food
outlet. He has applied for a demolition permit and a building permit.
His plans show a new restaurant building set only 40 feet back from the
front property line. He says that any denial of the application will be
considered a "taking," and has already hired a prominent law firm to sue
the city.
The HERBERTVILLE UNITED CHURCH, a religious organization, has recently
purchased Lot 4 and, since the existing building is inadequate for
church purposes, plans to demolish it to build a new church and school
on the site. They have applied for a demolition permit.
Lot 5 (Grisham Farmhouse/Cafe Francais) is now owned by EARL MARTINEZ.
With the help of the staff for the Herbertville Historic District
Commission, he has prepared and submitted a National Register of
Historic Places nomination for the Grisham Farmhouse, citing the
qualities mentioned earlier. Once he has the designation in hand, he
hopes to move the building to a quieter location and install a
historic marker calling attention to its National Register status.
The RED MAPLE COUNTY MALL PRESERVATION ALLIANCE, an advocacy
organization and private not-for-profit corporation, has submitted a
National Register of Historic Places application for Swampland Mall,
citing all the qualities mentioned earlier. The owners of Lots 2, 3
and 4 all vigorously object to this designation.
The MICHIGAN DEPARTMENT OF TRANSPORTATION is planning to build a
north-south freeway connector with an interchange at Brogan Road. Two
possible routes are being considered. Alternate "A" would displace
Lots 1 and 2 (the east half of Swampland Mall). Alternate "B" would
displace Lots 3, 4 and 5 (the west half of Swampland Mall and the
Grisham Farmhouse). All of the property owners are opposed to this
and unwilling to sell. Environmental impact statements for both
routes have been prepared; both statements go into some detail about
the impact on the Grisham Farmhouse and its historic value. Neither
one mentions Swampland Mall as a historic resource.
The UNITED STATES VETERANS ADMINISTRATION is also looking at the area,
and is pursuing plans to acquire the entire ten-acre parcel (all of
Swampland Mall and the Grisham Farmhouse), demolish all the buildings,
and build a regional office complex.
For each of the eight actors mentioned in BOLD CAPITALS, discuss the
legal issues raised by their various plans, including what obstacles
they are likely to encounter, and what legal arguments could be raised
in favor and against.
|
