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Home My WebLink AboutHDC1998-019 National Center For Preservation Law, Preservation Law Update 09/08/198709/02/1998 12:55 5013757965 ARGENTA CDC PAGE 02 NATIONAI. CENTER. FOR PRESERVATION ]LAW, 1233 zoTa Sriazzr. N.W. - SUITE 501 • WASHINGTON, D.G. moose ■ (202) 8ee-9011 PU RMCPeNT Tzestc Bos6n6wo. Eso. 1987-39 RaMaa;eve aaaacrom STCPKzrz S. Dz-pils. Eso. ]PRESERVATION LAW UPDATE September 8, 1987 Arkansas Supreme Court Upholds Local Preservation ordinance and Denial of Permit for Parking Lot construdtion In many states, there is still no reported appellate court decision upholding a local preservation ordinance or a challenged action taken by a local preservation commission. Even in states which have seen the development of a fear helpful precedents, important provisions of the state enabling legislation for local preservation commissions have frequently not been construed by a states court. 3n Srsr:ot�d ratpti st C� jrch ��i $ Roc jUater,ic platrict 86-3o$, Ark nsas supreiza Court, decided July 20, 1987} , are Arkansas appellate court has construed 'tho provision* of the statals enabling legislation for local preservation commizzions for the first time and has found an unoxpocted meaning in a challenged provision of the legislation. Though the drafters of the legislation may have intended to limit the powers of local preservation commissions to canaider the appropriateness of proposed uses within designated local historic districts, Arkansas co=issions now have the power to consider and, in appropriate situations, deny such uses when they are "incongruous with the historic aspects of the District." The court considered the basic legislation entirely proper: With the passage of the Historic District Act, the Arkansas Legislature allowed qualified municipalities to take steps to protect places of historic interest within their boundaries. It authorizes the use Of historic districts to promote the educational, cultural and economic welfare of a eomaun,ty which has been deemed a leqitimate use of the police powers by numerous state and federal courts. The Little Rock commission had denied the churches request for a certificate of appropriateness for a parking lot on property it owned within but can the boundary of a local historic district. The church argued unsuccessfully that tha commission Jacked authority to consider the requested, use because■ of an 09/02/1996 12:55 5013757965 ARGENTA CDC NATIONAL C E\TER FOR PIMF4ER ATION ILAW PAGE 03 apparent express prohibition in the Axkan for local preservation commissions. The the Arkansas legislation reads as follows - sae enabling legislation questioned provision of Commission not to be concerned with interior architectural features. - In its deliberations under this Act, the commission shall not consider interior arrangement or use and shall take no Action under this Act except for the purpose of preventing the construction, reconstruction, alteration, moving or demolition of buildings, structures or appurtenant fixtures, in the Historic District obviously incongruous with the historic aspects of the District. The Arkansas supreme Court held that this enabling legislation permits Arkansas preservation commissions to consider use in the special situation when a commission is acting to prevent uses "obviously incongruous with the historic aspects of the District": In construing the legislative intent of the Act, we must consider the plain warding of the Act and must look to the legislative objeot,ives in applying the legislation. . It is quite clear that an Historic District Commission may consider use only for the purpose of denying a certificate and, while the Commission does not have the authority to grant certain uses of property, it does have the authority to deny certain uses if those uzes are "Obviously incongruous with the historic aspects of the District." The court refused to hold that the commission had made an improper finding in ruling that a parking lot located on the edge of a local historic district would be "incongruous" with the district: Here, the Commission found that construction of the parking lot as proposed in the Appellant's application would be totally .incongruous with the historic aspects of the District, especially in vi4w of the proposed location of the Parking lot on a fringe or border area of the District. We cannot may tl•,at this finning by the Commission was outside Of the scope of what the legislature intended with the passage of the Historic District Act. In fact, we believe that the statute grants the Commission the authority to sake the precise finding that it did in this case. The court stated "that an Historic District commission is given authority to preserve the district's: Thus, an Historic District commission may prohibit a particular use of property within a district in order to develop an appropriate setting for historical buildings if that use is obviously incongruous with the: historic nature of the district. 09/02/1998 12:55 5013757965 ARGENTA CDC PAGE 04 ? VVIONALCF,-NTF_R FOR P%tE4EKV.\T10N This is a strong statement from a court in a state that had little prior historic preservation litigation, and goes further than courts irk a number of other states have been asked to go in upholding actions by local preservattivn commissions. The court found "credible evidence" testimony by an architect that the National Register of Historic places program considers parking lots "incompatible intrusions whereas vacant lots.are not considered to detract from the history." The court upheld "a commission's decision against an equal protection challenge, calling the "Commission's decision . , . a valid exercise of a legitimats state interest" and noting the lack of evidence that the church had been "singled out as the only group prohibited from building such a parking lot." T'.;a court rioted that undo; Arkansas law it must sustain the commission's decision "even if our Judgment on the J:s ue would differ" unless it could find that the decision had been "clearly against the preponderance of the svidence presented before the commission.,' The court found that the commission had acted properly and within its "quasi -legislative authority." Two dissenting Judgss argued that the state legislature could not have intended "that our municipalities' right to zone or to determine the use of properties within their corporate i limits should in any way be shared or diminished" when t enacted enabling legislation for local preservation commissions; After today's decision, the City of Little Rock will have two city planning commissions, not one, which will have the power to determine land use. obviously, when those two commissions differ in the future on what uses the land within historic districts may be put Ito?o a conflict again will be ripe for more litigation similar to that posed here. These judges predicted that the "so-called limited power will prove most frustrating to the city when the Historic District commission, in the future, disagrees with the city planning commission's decision to put prop*-ty within a historic district to a use with wh.icb the Historic Commission disagrees." They suggested that the Arkansas legislature intended to prohibit preservation commissions from considering use at all: Nevarthsless, the Little Rock Historic District Commission ignores those plain words of proscription, and argues, quite imaginatively and Obviously persuasively to this court, that the [language] permits a historic comaiission to consider use Only to prevent any construction that i� irjLcangruent with the historic aspects of a district. (A subscription to the "preservation Law updates" series is available for $45.00. Please send inquiries to the National COnter at the address listed at the top of this "Update.")