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RENEWED ENERGY: SUSTAINABLE HISTORIC ASSETS AS

KEYSTONES IN URBAN CENTER REVITALIZATION
Michael N. Widener*
I. INTRODUCTION
This tale of historic proportionality begins with an illustrative
numerator, second-generation First Baptist Church (First BC). Located
at 302 West Monroe Street in Phoenix, Arizona,1 the church was built in
1929 and expanded in 1948.2 Local architects Fitzhugh & Byron prepared
working drawings and supervised initial construction,3 but First BC was
designed mainly by George Merrill, architect of the American Baptist Home
Mission Society in New York.4 Designed primarily in Italian Gothic style,
the church includes Moderne5 and other architectural movement elements,
* Adjunct Professor at Arizona Summit Law School and Sperling School of Business,
University of Phoenix; Zoning Adjustment Hearing Officer, City of Phoenix; and Of Counsel,
Bonnett, Fairbourn, Friedman & Balint, P.C. The author and his wife own an NRHP-listed family
farm in Tennessee. See TENN. HIST. COMN, TENN. HIST. Q. 90, 104 (2001).
1
U.S. DEPT OF THE INTERIOR, NATL PARK SERV., NATIONAL REGISTER OF HISTORIC
PLACES
INVENTORYNOMINATION
FORM
(1981),
http://pdfhost.focus.nps.gov/docs/NRHP/Text/82002081.pdf [hereinafter N OMINATION FORM].
2
First Baptist Church (Addition to); Third Avenue at Monroe; 1948, ARIZ. MEMORY
PROJECT, http://azmemory.azlibrary.gov/cdm/ref/collection/pmhbd/id/353 (last visited Sept. 26,
2014). The Arizona Memory Project website has sixteen sheets of digitized blueprint drawings of
the addition. See id. While these drawings were prepared in connection with an addition, they
contain details of the front elevation, front window, and main entry of the church structure. See id.
3
See NOMINATION FORM, supra note 1. The first floors plan for the church is shown on the
last page of the nomination form. Id.
4
Robrt L. Pela, Majestic Ruins: Phoenixs First Baptist Church and More, PHOENIX NEW
TIMES, May 3, 2012, available at http://www.phoenixnewtimes.com/2012-05-03/culture/phoenixs-first-baptist-church-surrounded-by-constant-change/full/.
5
NOMINATION FORM, supra note 1. Moderne describes certain styles of architecture
popular from 1925 through the 1940s; it has expression in styles traditionally classified as Art
Deco, Streamlined Moderne, and WPA Moderne. For descriptions of these styles, see generally
ROBERT M. CRAIG, ATLANTA ARCHITECTURE: ART DECO TO MODERN CLASSIC, 1929-1959, at
1723 (1995). The church has a porthole window and less filigree. See FLICKR,
http://www.flickr.com/search/?q=First+Baptist+Church+Phoenix (last visited Sept. 26, 2014).
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incorporating an auditorium with a stage.6 Its congregation relocated six

miles north during 1968.7 First BC was placed on the federal National
Register of Historic Places (NRHP) on February 8, 1982.8
Thirty years after its historic designation, First BC is a useless ruin.9 In
its present disrepair,10 First BC is not preserved, unless preservation
means leaving the main structure windowless and vulnerable to nature,
while accessible to determined thieves, vandals, and graffiti artists, along
with the occasional tourist.11 Owned today by the Housing Opportunity
Center, an Arizona non-profit,12 this church is a poster child for
landmarking without forethought, promoting urban blight through the
ravages of vandalism, arson, and squatting. In our secular society, unless the
NRHP listing is removed or First BC is adaptively repurposed or
demolished soon, this 20,000 square foot,13 four story main building with a
See NOMINATION FORM, supra note 1.

Id.
8
See id. At the time of the placement of First BC on the register, its owner was H.A.V.C.
Partnership. See id. This partnership consisted of a Phoenix Sunss professional basketball player
and several Arizona real property developers. See CERTIFICATE OF GENERAL PARTNERSHIP AND
FICTITIOUS NAME OF H.A.V.C. PARTNERSHIP, RECORDS OF MARICOPA COUNTY, ARIZ. (1980),
available at http://156.42.40.50/UnOfficialDocs2/pdf/19800106325.pdf.
9
See Pela, supra note 4.
10
The building has no roof atop about 75% of its span, and the windows, including a rose-style
7
stained glass window that would have been located on the second story level, are missing from
their frames. See id.; see also FLICKR, supra note 5. The church interior was gutted by fire in
January, 1984. See Hanson v. Commercial Union Ins. Co., 723 P.2d 101, 102 (Ariz. App. 1986).
The fire damage to the roof over the original sanctuary was not repaired, nor its roof replaced, in
the past thirty years. See Pela, supra note 4. Video of the propertys interior is connected to a
story by Brandon Hamilton, Architects Draft Ideas to Renovate 1929 Phoenix First Baptist
Church, ABC 15 ARIZONA Jan. 4, 2014, available at http://www.abc15.com/news/regionphoenix-metro/central-phoenix/architects-draft-ideas-to-renovate-1929-phoenix-first-baptistchurch.
11
Plenty of photographs of First BC are readily available from Flickr. See FLICKR, supra
note 5. A reasonably current aerial view of First BC is available at Google Earth. See GOOGLE
EARTH, http://www.google.com/earth/ (last visited Sept. 26, 2014) (search 302 W Monroe St,
Phoenix, AZ). A portion of the 1948 addition is occupied by Release the Fear, a non-profit health
and human services organization focusing on youth life skills development. See RELEASE THE
FEAR, http://www.releasethefear.org/ (last visited Sept. 26, 2014).
12
Editorial Staff, Adapt-A-Building, PHOENIX MAG., Sept. 2010, at 28, available at
http://web.archive.org/web/20100825173901/http://www.phoenixmag.com/lifestyle/valleynews/201009/adapt-a-building/2/.
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seven story bell tower,14 situated on 20,625 square feet of land,15 faces
vacancy and continued dilapidation into the twenty-second century.
First BC has little present utility and few future prospects in its current
condition; the main structure continues to buckle. Such neglect desecrates
the church and its designation as a heritage property.16 The property is
marooned; the current expense of major renovation for a purposeful use
cannot be borne by a non-profit without a bequest from a naive donor
cherishing a damaged relic. It has scant potential as church, its condition
aside, because increasingly fewer young Americans are churched.17 There
is no reliable marketing evidence that renters desire to occupy a building for
housing or commercial purposes because it looks like a former church.
When historic preservation of vacant buildings lacks any repurposed
implementation strategy, a doom similar to First BC awaits designated
properties.18 This paper addresses the duality of development objectives
14
Id.
Property
Information,
MARICOPA
CNTY
ASSESSORS
OFFICE,
http://mcassessor.maricopa.gov/?s=112-20-079-C (last visited Sept. 26, 2014).
16
Forthrightly, persons affiliated with First BCs owner have contemplated its potential
future uses, including housing; but happy thoughts (i.e. [i]ts one of the great undeveloped
treasures of Downtown , see id.; or the ruins give off a romantic and charming vibe making the
future still very bright, see Hamilton, supra note 10) do not a strategy for sustainable utility
create. See Editorial Staff, supra note 12, at 28 (internal quotation marks omitted). The proposed
use in the Phoenix Magazine article duplicates existing entertainment venues located within
blocks of First BC. See id. But the proposed use is not achievable on a cost-effectiveness basis
without philanthropic support measured in the hundreds of thousands of dollars, merely to shore
up the structure from the ravages of neglect. Maintenance work in the First BC interior began
during the first week of November, 2014, for a rumored opening as a garden and events venue
in 2015, see Nadine Arroyo Rodriguez, Did You Know: Historic Church Under Renovation for
2015, 91.5 KJZZ Aug. 8, 2015, available at http://kjzz.org/content/40795/did-you-know-historicchurch-under-renovation-2015.
17
See DAVID T. OLSON, THE AMERICAN CHURCH IN CRISIS: GROUNDBREAKING RESEARCH
BASED ON A NATIONAL DATABASE OF OVER 200,000 CHURCHES 16 (2008).
18
Government agencies themselves are miscreants in the preservation department. See, e.g.,
Ashley Southall, V.A. Is Faulted over Landmarks Condition, N.Y. TIMES, Nov. 8, 2013, at A22,
available
at
http://www.nytimes.com/2013/11/08/us/va-is-faulted-over-deterioration-oflandmarks.html?_r=0. Readers should not infer the authors singular dislike of one property type
as historic assets. In the same year First BC was NRHP-listed, the San Marcos Hotel in downtown
Chandler, Arizona, received like designation. See Weldon B. Johnson, Jewel in the Desert
Glittering Again in Downtown Chandler, ARIZ. REPUBLIC (Jan. 5, 2014, 8:35 AM),
http://www.azcentral.com/community/chandler/articles/20140105chandler-san-marcos-hotelanniversary.html. This landmark property remained boarded up between 1980 and 1987 because
its owners were unable to raise funds to renovate and operate the hotel. See id. Just lately has the
hotels fortunes improved. See id.
Historic notoriety promises nothing for an assets utility in urban revitalization, and bad
planning is seldom affected by an assets original use or its owners good intentions. San
15
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balanced with the protection of historic assets in delivering high-quality

built environments, along with meeting seemingly disparate goals of
enhancing community sustainability while maintaining iconic urban places.
As the fiftieth anniversary of the National Historic Preservation Act
(NHPA) approaches in 2016,19 I propose better integration of preserving
structural historical assets with the host planet. This paper argues that
historic preservation must do far more than preserve visual treasures.
Failure to accommodate both preservation virtues dooms neglected historic
properties to structural relics status, awaiting demolition while locals,
aware of their dilapidation, stay clear.20 Preservationists in the private and
public sectors must frame preservation strategies, joining the past, present,
and future of municipal development and infusing sustainability into
designated properties. Historic assets that have transcended their original
purposes can be useful and sustainable.21 Repurposing these parcels triggers
Antonios S.H. Kress & Co. department store, built in 1938, is a fixture on the citys vaunted,
historic Houston Street; this building was vacant between the early 1990s and late 2010, when one
restaurant occupied the ground floor of this 168,000 square foot building. See Benjamin Olivo,
Plans, no details, for Kress building, THE DOWNTOWN BLOG (Feb. 26, 2010),
http://blog.mysanantonio.com/downtown/2010/02/plans-no-details-for-kress-building/; see also
Federal Realty Begins Restoration of Historic Kress Building and Welcomes Texas de Brazil to
Houston Street, PR NEWSWIRE (May 10, 2010), http://www.prnewswire.com/newsreleases/federal-realty-begins-restoration-of-historic-kress-building-and-welcomes-texas-debrazil-to-houston-street-93266799.html.
19
See National Historic Preservation Act of 1966, Pub. L. No. 89-665, 80 Stat. 915.
20
Protracted vacancies in all types of buildings contribute to urban blight, regardless of their
owners best intentions. Yet attempts at private citizen intervention to curb blight lead to
controversy and litigation arising from trespass and vandalism. See, e.g., Kris Maher, Foes of
Urban
Blight
Take
Aim
at
Landlords,
WALL ST. J., Jan.
3,
2014,
http://online.wsj.com/news/articles/SB10001424052702303640604579298510595796766
(describing community endeavors to call out abandoned building owners using social media and
to create public art on abandoned buildings, as well as noting owner backlash in Baltimore).
21
In the private sector, there has been some movement to seek some common ground
between preservationists and green building advocates, groups at cross-purposes until recently.
See JEAN CARROON, SUSTAINABLE PRESERVATION: GREENING EXISTING BUILDINGS 55 (2010).
In 2006, at the National Preservation Conference in Pittsburgh, hosted by the National Trust for
Historic Preservation, a summit of professionals in preservation and green building communities
attempted to formulate common goals for greening historic properties. See Kim A. OConnell,
Finding Common Ground, TRADITIONAL BUILDING (June 2007), http://www.traditionalbuilding.com/Previous-Issues-07/JuneFeature07.htm. The major stumbling block today is that
assessment guidelines for LEED certification contemplate new construction, leaving just 11 of 69
points specifically applying to adaptive reuse of buildings. See id. Failure to consider the unique
characteristics of historic structures continues to be a source of discord between the two camps.
See id. For more information regarding the LEED, see generally U.S. GREEN BLDG. COUNCIL,
GREEN BUILDING RATING SYSTEM: FOR NEW CONSTRUCTION AND MAJOR RENOVATIONS
(LEED-NC) (2002), available at http://www.usgbc.org/Docs/LEEDdocs/LEED_RS_v2-1.pdf.
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105
improvements to the quality of neighborhood life, while modestly satisfying

those who feel a need to control inauthentic uses of heritage tracts. Historic
preservation today must contribute to urban centers livability.
Sustainability is aided when preservationists partner with sustainability and
economic development promoters of revitalization initiatives in central
business districts.22
Some critics opine that Americas major cities already have designated
most of the extant significant historic buildings of the twentieth century and
prior, so city landmarks commissions today endeavor to save from
destruction far fewer genuinely precious buildings and other structures,
along with putative heritage-worthy districts.23 Celebrated urban geographer
Jane Jacobs would disagree vigorously that designation of old buildings
wastes these resources.24 Jacobs believed that to withstand urban selfdestruction, a supply of diversified, lively, and economically viable
neighborhoods or enclaves must increase incrementally to meet
continuously growing demand.25 Therefore, a wholly-sufficient reason for
ongoing preservation action is to zone for diversity, curbing redundancy
of the most profitable (hence, duplicated) uses that are diminishing
neighborhoods curb appeal.26 Channeling Jacobss views, perhaps, groups
continue efforts to save historic properties in urban areas, including through
crowd-sourcing preservation initiatives.27 No matter ones justifications for
22
See CIVICVISIONS LP, ICONS, PLACEHOLDERS & LEFTOVERS: MIDTOWN EAST REPORT 22
(2013), available at http://midtown21c.org/files/2013/02/Icons-Placeholders-Leftovers-MidtownEast-Report1.pdf (intelligently discussing the topic of landmark preservation juxtaposed to the
process of creative fission (transformative development activity)); see also Natl Bldg. Museum,
Historic
Preservation
Vs.
Sustainability?,
YOUTUBE
(Mar.
23,
2012),
https://www.youtube.com/watch?v=awFBEQawGDs.
23
See CIVICVISIONS LP, supra note 22, at 1921.
24
See JANE JACOBS, THE DEATH AND LIFE OF GREAT AMERICAN CITIES 18788 (Vintage
Books ed. 1992).
25
See id. at 25556.
26
Id. at 25253.
27
See PARTNERS IN PRESERVATION, http://partnersinpreservation.com/ (last visited Sept. 26,
2014). Each year, Partners in Preservation nominates historic and cultural monuments from a pool
of applicants in a major United States city or metro area and asks the public to vote on finalists to
receive corporate rehabilitation funding. See FAQ, PARTNERS IN PRESERVATION,
http://partnersinpreservation.com/faq/#.VCb-UfldUXU (last visited Sept. 26, 2014). In 2012,
Partners in Preservation selected 40 sites in New York City, ranging from the Lower East Side
Tenement Museum, to the Greenpoint Manufacturing and Design Center, to the 1964 Worlds Fair
Rocket Thrower, as nominees for funding. See New York City 2012, PARTNERS IN PRESERVATION,
http://partnersinpreservation.com/new-york/#.Usw6D8KA384 (last visited Sept. 27, 2014). The
four sites with the most votes received full funding and an advisory committee decided how to
distribute the remaining money. See id. In 2013, thirteen historic places in Washington, D.C.,
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landmark listing, however, for many owners of dated buildings, historic

designation is more curse than blessing, due to the regulatory implications
of listing.28 Historic designation of entire enclaves increasingly impacts
densification of urban cores by constructing new and taller development.29
To some degree, this unproductively exploits the nations landmarksdesignation laws30 with devastating economic, social, and environmental
impacts because of slowing necessary densification, development of urban
cores,31 and accompanying business expansion and job growth.
Describing how preservation proceeds along a more enlightened path,
this paper proceeds as follows. In Part II, I summarize the roles of
governments (at all levels) and private parties in employing historic
places registers. In Part III, I trace briefly the evolution of preservationist
philosophies and their lingering impacts on development trends in urban
cores, as well as how urban planning specialists assess effects upon urban
growth of registering properties on historic lists.32 Part IV argues for the
utility of adaptive reuse through repurposing designated buildings without
stripping their historic essences. In Part V, I illustrate an adaptive reuse
model that allows urban centers to redeploy historic assets in establishing
livable mixed-use urban villages. Part VI argues for new paradigms of
urban historic preservation in which benchmarks of success in sustainability
and utility become vital metrics in heritage conservation. This paper
concludes by advocating new methods for resonating historic preservation
with urban-center economic growth and community sustainability goals.
Maryland, and Virginia received grants by popular demand. See Washington, D.C. 2013,
PARTNERS IN PRESERVATION, http://partnersinpreservation.com/dc-metro/#.Usw6P8KA384 (last
visited Sept. 27, 2014).
28
VISHAAN CHAKRABARTI, A COUNTRY OF CITIES: A MANIFESTO FOR AN URBAN
AMERICA 139 (2013) [hereinafter A COUNTRY OF CITIES]. See also Vishaan Chakrabarti, Building
Hyperdensity and Civic Delight, THE DESIGN OBSERVER GROUP (June 13, 2013),
http://places.designobserver.com/feature/a-country-of-cities-building-hyperdensity/37899/.
29
See K. AL-KODMANY & M.M. ALI, THE FUTURE OF THE CITY: TALL BUILDINGS AND
URBAN DESIGN 6772 (2013); see also A COUNTRY OF CITIES, supra note 28, at 139, 143; Jess R.
Phelps, Moving Beyond Preservation Paralysis? Evaluating Post-Regulatory Alternatives for
Twenty-First Century Preservation, 37 VT. L. REV. 113, 13441 (2012).
30
A COUNTRY OF CITIES, supra note 28, at 139, 143.
31
See id. at 143, 145.
32
Compare EDWARD GLAESER, TRIUMPH OF THE CITY: HOW OUR GREATEST INVENTION
MAKES US RICHER, SMARTER, GREENER, HEALTHIER, AND HAPPIER 1112, 13536, 16163,
26064 (2011) (arguing that historic preservation and bureaucracy should not prevent modern
growth), with J. Peter Byrne, Historic Preservation and Its Cultured Despisers: Reflections on the
Contemporary Role of Preservation Law in Urban Development, 19 GEO. MASON L. REV. 665
(2012) (critiquing Glaeser for exaggerating the effect of preservation laws, among other things).
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PRESERVATION REGISTRY PROGRAMS AFFECTING URBAN HISTORIC

PROPERTIES
A. Federal Engagement in Historic Preservation

The United States first enacted legislative protections to preserve
historical and cultural resources more than a century ago.33 The Antiquities
Act, passed in 1906,34 prohibited the unlicensed appropriation, excavation,
injury, or destruction of any historic or prehistoric ruin, monument, or
object of antiquity belonging to the federal government or controlled by the
United States without the federal governments permission.35 In 1935,
Congress enacted the Historic Sites, Buildings, and Antiquities Act,36
legislation declaring that historic preservation was a national priority.37 This
Act provided the federal government with limited ability to preserve
buildings and historic sites of national significance.38 In 1966, Congress
passed the National Historic Preservation Act (NHPA).39 Of preservation
laws currently in force, the NHPAs Section 106 process provides the most
extensive federal protection for qualified cultural and historic resources.40
The NHPA declares that the historical and cultural foundations of the
United States should be preserved as a living part of our community life and
development in order to give a sense of orientation to the American
people . . . .41 The NHPA established the NRHP, which lists resources,
including buildings, structures, districts, and other objects, significant in
American history, architecture, archaeology, engineering, and culture.42
The NRHP theoretically intends to be a planning tool43 to identify
properties significant enough to warrant consideration in federal decision-
33
See 16 U.S.C. 431433 (2012).

Id.
35
Id.
36
See 16 U.S.C. 461467 (2012).
37
See JOHN J. CULLINANE, MAINTAINING AND REPAIRING OLD AND HISTORIC BUILDINGS
50 (2013).
38
36 C.F.R. 60.1(b)(2) (2015).
39
National Historic Preservation Act of 1966, Pub. L. No. 89-665, 80 Stat. 915 (codified as
16 U.S.C. 470470x-6 (2012)).
40
See John M. Fowler, The Federal Preservation Program, in RICHER HERITAGE: HISTORIC
PRESERVATION IN THE TWENTY-FIRST CENTURY 35, 45 (Robert E. Stipe ed., 2003) (referring to
the NHPA as the centerpiece of federal protection for historic properties).
41
National Historic Preservation Act 1(b).
42
16 U.S.C. 470a(a)(1)(A) (2012).
43
36 C.F.R. 60.2(a) (2015).
34
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making about future development.44

The process for identifying eligible properties and listing them on the
NRHP is governed by federal regulations45 defining types of properties
eligible for listing, including individual buildings, other structures, and
entire districts of property.46 A property eligible for listing on the NRHP
hypothetically must affect the American people in ways rendering it as a
resource above similar other properties deserving federal protection.47 The
eligibility process follows an inquiry into whether the property has inherent
historical and cultural significance:48
The quality of significance in American history, architecture, archeology,
engineering, and culture is present in [the properties] . . . that possess integrity of
location, design, setting, materials, workmanship, feeling, and association and
(a) that are associated with events that have made a significant contribution to
the broad patterns of our history; or
(b) that are associated with the lives of persons significant in our past; or
(c) that 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; or
(d) that have yielded, or may be likely to yield, information important in
prehistory or history.49
The NRHP is a broadly inclusive inventory of properties maintained

by the National Park Service, meeting eligibility requirements of
significance and property type.50 Historic preservation officers at the state,
44
See id.
See 36 C.F.R. 60.4 (2015) (establishing NRHP criteria for determining designation
eligibility).
46
Id.
47
See id.
48
See Exec. Order No. 11,593, 36 Fed. Reg. 8,921 (1971).
49
36 C.F.R. 60.6 (2015).
50
Doreen M. Pulley & Elwin C. Robison, Emergency Repairs for Historic Faades, in
BUILDING FAADE MAINTENANCE, REPAIR, AND INSPECTION 91, 98 (Jeffrey L. Erdly & Thomas
A. Schwartz eds., 2004). A not well-understood fact: this listing is an honorary status with only
federal tax credit leverage over the private owners decisions regarding whether and how to
preserve, rehabilitate, or renovate a listed property at the federal level. Id. The listing status of a
building may be revoked if inappropriate alterations are implemented. Id. Except for the private
owners federal (and perhaps state) tax credit jeopardy, de-listing of a property has little impact on
the owner beyond the loss of face in the historic preservation community. See id. Demolition of
the improvements, however, may trigger local inputs and decision-making. See Fowler, supra note
40, at 44; see also Akram Ijla et al., Historic Designation and the Rebuilding of Neighborhoods:
New Evidence of the Value of an Old Policy Tool, 4 J. URBANISM 263, 265 (2011). NHPA is
45
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109
tribal, and sometimes local government levels conduct research to identify

and nominate properties to the NRHP based on the criteria set forth in the
NHPA and Park Service regulations.51 In the case of First BC, Janus
Associates, a private firm, was contracted by H.A.V.C. to prepare the
NRHP nomination form.52 Disturbingly, in the present day, Janus architects
in 1982 described First BCs physical condition as excellent.53
B. State and Local Engagement in Historic Preservation
Engaging Historic Preservation Officers at the state level in NHPA
activities spawned growth of state and local laws and regulations governing
protection, if not preservation, of additional historic assets.54 The original
states comprising the original thirteen colonies were among early promoters
of such legislation: Massachusetts passed conservation restriction
legislation in 1969,55 followed by Connecticut in 1971.56 The Uniform
Conservation Easement Act (UCEA), drafted by the National Conference
of Commissioners on Uniform State Laws and approved by the American
Bar Association in 1981, provides a framework for many states
conservation easement legislation.57 The UCEA expressly provides that
conservation easements may be modified by their holders (grantees) or
terminated by mutual agreement of the parties, and otherwise provide for
easement administration.58 All fifty states provide preservation services
arising directly from federal preservation programs authorized under the
National Historic Preservation Act (NHPA), such as nomination of
properties for inclusion in the NRHP, consultation with federal agencies
invoked for protection of historic assets through Section 106 of that Act only if federal
undertakings involve NRHP listed or eligible properties. See SHERRY HUTT ET AL., CULTURAL
PROPERTY LAW: A PRACTITIONERS GUIDE TO THE MANAGEMENT, PROTECTION, AND
PRESERVATION OF HERITAGE RESOURCES 6 (2004); Fowler, supra note 40, at 4546.
51
HUTT ET AL., supra note 50, at 67.
52
53
Id.
54
See Fowler, supra note 40, at 4243.
55
See MASS. GEN LAWS ANN. ch. 184, 31 (West 2003).
56
See CONN. GEN. STAT. 47-42a47-42d (2013).
57
Jessica E. Jay, Third-Party Enforcement of Conservation Easements, 29 VT. L. REV. 757,
75960 (2005); see also NATL CONFERENCE OF COMMRS ON UNIF. STATE LAWS, UNIFORM
CONSERVATION
EASEMENT
ACT
(1981),
available
at
http://www.cals.ncsu.edu/wq/lpn/PDFDocuments/uniform.pdf.
58
See Jessica E. Jay, When Perpetual is Not Forever: The Challenge of Changing
Conditions, Amendment, and Termination of Perpetual Conservation Easements, 36 HARV.
ENVTL. L. REV. 1, 2631 (2012).
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regarding actions affecting properties listed (or eligible for listing) in the
NRHP, and review of applications for federal rehabilitation tax credits and
associated benefits.59
States foster the protection of historic properties through their own
laws and programs by maintaining state registers,60 appropriating funds to
preserve public buildings, protecting private properties from potentially
harmful governmental actions, and authorizing adoption of local
preservation ordinances, easement programs, and rehabilitation tax
incentive programs.61 The State Historic Preservation Office (SHPO) is
the key agency responsible for identifying and protecting historic and
cultural resources in the United States.62 Because it intersects nearly every
heritage preservation program in the United States, whether governmental
or private action is involved, a SHPO often is the agency that individuals,
organizations, or government officials with preservation issues are most
likely to encounter.63
In addition, nearly all states have enacted laws providing local
governments with authority to adopt and implement similar ordinances.64
59
See Fowler, supra note 40, at 48, 61. These credits are described in the Economic
Recovery Tax Act of 1981, which generally replaced the rehabilitation tax incentives under earlier
laws, beginning January 1, 1982, with a 25% investment tax credit for rehabilitations of historic
commercial, industrial, and residential buildings. See 36 C.F.R. 60.2 (2015); see also Treas. Reg.
1.48-12 (2012). This can be combined with a fifteen-year cost recovery period for the adjusted
basis of the historic building. 36 C.F.R. 60.2 (2015). These opportunities are codified in the
Internal Revenue Code. See, e.g., I.R.C. 38, 280B (2012).
60
For example, in the State of California, designation occurs through the California Register
of Historical Resources (CRHR), which is maintained by the State Historical Resources
Commission.
See
California
Register,
CAL.
STATE
PARKS,
http://ohp.parks.ca.gov/?page_id=21238 (last visited Sept. 27, 2014). California also has a roster
of California Historical Landmarks and Points of Historical Interest. See California Historical
Landmarks, CAL. STATE PARKS, http:/ohp.parks.ca.gov/?page_id=21387 (last visited Sept. 27,
2014); see also California Points of Historical Interest, CAL. STATE PARKS,
http:/ohp.parks.ca.gov/?page_id=21750 (last visited Sept. 27 , 2014); CAL. PUB. RES. CODE
2108421084.1 (West 2014). In the State of Arizona, the State Historic Preservation Officer
maintains an Arizona Register of Historic Places under legislation passed in 1974. See ARIZ.
STATE PARKS, FINAL ARIZONA STATE HISTORIC PRESERVATION PLAN UPDATE 81 (2009),
available at http://azstateparks.com/SHPO/downloads/SHPO_Plan_2009_Final.pdf. From its
inception, the Arizona Registers listing was conceived as a lower-status designation, suited for
properties having less historic significance than those on the NRHP. See id.
61
See Elizabeth A. Lyon & David L.S. Brook, The States: The Backbone of Preservation, in
RICHER HERITAGE: HISTORIC PRESERVATION IN THE TWENTY-FIRST CENTURY, supra note 40, at
81, 86.
62
See id. at 8287.
63
See id. at 83.
64
See Sandra G. McLamb, Preservation Law Survey 2001: State Preservation Law, 8
2015]
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111
Some local governments have successfully relied on broad grants of

authority to enact preservation ordinances;65 the initial ordinance of this
kind was adopted in Charleston, South Carolina, in 1931.66 Other so-called
Dillon Rule states, such as the Commonwealth of Virginia, where a local
jurisdictions authority must be express, require detailed authority to be
provided.67 Illustrations of such explicit enabling laws are those of
Indiana,68 Maryland,69 and North Carolina.70
On the local level, municipalities or counties establish historic
preservation officers and, frequently, commissions that recommend to the
communitys legislative body the listing of a property or district upon a
municipal roster of landmarks, historic sites, or the like.71 For example,
in New York City, buildings are identified for their special character and
worthiness for preservation by the eleven-member Landmarks Preservation
Commission.72 Their uniqueness and worthiness for preservation are
confirmed for listing, or rejected, by the City Council.73 In addition, some
historic preservation is incorporated into municipal codes as a form of
zoning overlay district or adaptive reuse ordinance, which is the case, for
example, in Los Angeles74 and Phoenix.75
WIDENER L. SYMP. J. 463, 464 (2002).
65
See, e.g., A-S-P Assocs. v. City of Raleigh, 258 S.E.2d 444, 44850 (1979); CHINO, CAL.,
CODE
title
8,
8.60.0508.60.270
(2013),
available
at
http://library.municode.com/index.aspx?clientId=16002; LAGUNA BEACH, CAL., CODE
25.45.00225.45.014 (2014), available at http://qcode.us/codes/lagunabeach/.
66
See NORMAN TYLER, HISTORIC PRESERVATION: AN INTRODUCTION TO ITS HISTORY,
PRINCIPLES, AND PRACTICE 39 (2000).
67
See Local Government Authority, NATL LEAGUE OF CITIES, http://www.nlc.org/buildskills-and-networks/resources/cities-101/city-powers/local-government-authority (last visited
Sept. 27, 2014). Most non-home rule states (39 of them) apply the principle known as Dillons
Rule to determine the bounds of a municipal governments legal authority; in those jurisdictions,
municipalities must ask permission of the state or commonwealth legislature to pass local
legislation. See id. By contrast, in home rule states, an amendment to the state constitution grants
cities, municipalities, and/or counties the ability to pass laws to govern themselves as they see fit
(so long as they obey the state and federal constitutions).
68
See IND. CODE ANN. 36-7-11-136-7-11-22 (LexisNexis 2009).
69
MD. CODE ANN. 8.1018.501 (LexisNexis 2010).
70
N.C. GEN. STAT. ANN. 160A-400.1160A-400.14 (West 2000).
71
See McLamb, supra note 64, at 46869 (discussing the role of state historic preservation
officers in local matters).
72
About the Landmarks Preservation Commission, NYC LANDMARKS PRES. COMMN,
http://www.nyc.gov/html/lpc/html/about/about.shtml (last visited Sept. 27, 2014).
73
See, e.g., Winnie Hu, Council Poised to Intervene on Enclaves Landmark Status, N.Y.
TIMES,
Mar.
25,
2006,
at
B.1,
available
at
http://www.nytimes.com/2006/03/25/nyregion/25fieldston.html?pagewanted=print&_r=0.
74
See L.A., CAL., CODE 12.20.3. Similarly, the Old and Historic District, the Old City
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Local designation typically mandates that an owner obtain a

certificate of appropriateness or a demolition permit from a locally
appointed body when removing portions of a structure, or making
alterations or additions to the designated asset.76 Often, specific guidelines
specify what is permitted in modifying a structures exterior design,
construction materials, paint colors and shapes, styles and locations of
windows, doors, external lighting fixtures, and barricades like fences and
walls.77 In some cities, designation requires that specific levels of
maintenance and restoration be performed at the owners expense.78 Local
review of proposed changes (including review of the owners wholesale
demolition of the property improvements) by persons acquainted with the
neighborhood environment deters disruption of the local communitys
historic fabric.79 Therefore, local designation carries the greatest potential
for historic assets protection.80
C. The Nature of Preservation Restrictive Covenants/Easements
A basic approach to thinking about historic preservation restrictions is
to view them as negative easements. In effect, instruments documenting
negative easements contain the landowners promises to not exercise certain
property rights otherwise available because of the landowners conveyance
of those rights to another party, whether it be a government agency or a
non-governmental organization like a land trust.81 Two primary types of
negative easements are the faade easement and the conservation
District, and the Old City Height Districts are three overlay zoning districts defined in
Charlestons zoning ordinance. See CHARLESTON, S.C., ZONING ORDINANCES art. 2, part 6,
54-23054-249, available at https://library.municode.com/index.aspx?clientId=14049; see also
Matthew A. Young, Adapting to Adaptive Reuse: Comments and Concerns About the Impacts of a
Growing Phenomenon, 18 S. CAL. INTERDISC. L.J. 703, 703 (2009).
75
See PHX., ARIZ., ZONING ORDINANCE ch. 5, 507 TAB A(K)(2)), available at
http://www.codepublishing.com/az/phoenix/ ([H]istorically significant buildings and their related
landscape setting should be retained and restored, or put to adaptive reuse . . . .).
76
See Ijla et al., supra note 50; see also Katherine Ridley & Mark Silberman, Certificates of
Appropriateness; Changes Requiring CertificateCriteria; Compatibility with Historic
Character, 9A N.Y. PRAC., ENVTL. L. & REG. IN N.Y. 14:46 (2d ed. 2013).
77
See Christine Kreyling, Something Old Something New, 72 PLANNING 34, 3439 (2006).
78
See, e.g., Paul K. Asabere & Forrest E. Huffman, Real Estate Values and Historic
Designation, ILL. REAL EST. LETTER 11, 12 (1995).
79
See Ijla et al., supra note 50.
80
See id.
81
See Kepple v. Dohrmann, 141 Conn. App. 238, 249 (2013).
2015]
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113
easement.82 In the case of the former, the owner is prohibited from

demolishing or altering the exterior of an historic building without the
easement grantees prior consent.83 This easement does not affect the
owners use of the building or, usually, the owners prerogatives where the
interior is concerned.84 A propertys placement on the NRHP ensures that
the National Park Service will have, for so long as a property is on the
register, a faade easement.85 In a typical conservation easement, the
historic property owner agrees to both limit the use of the property and
preserve a structures outward appearance.86 Conservation easements
typically are subject to some negotiation; while all development is not
prohibited, development that would alter the character of the propertys
historic context is limited.87 Sometimes, a conservation easement is used
merely for preserving a private propertys open space along roadways or in
cluster developments.88
In summary, the private landowner does not part with ownership rights
but creates in the dominant estate, however defined in the instrument, a
privilege to enjoy or restrict that owners use of its property, which becomes
the servient estate under the instrument.89 Of course, lasting in perpetuity,
such easements benefits and burdens pass with any conveyance affecting
the servient or the dominant property, whatever the case may be.90
Notably, no federal, state, or local law or regulation categorically
prohibits demolishing heritage resources.91 Prohibiting demolition
altogether without the property owners prior consent constitutes either ultra
82
Id. at 248.
Id.
84
Id. The logic of this type of easement is simple; historic (due to age) residences built
without kitchens or lavatories seldom would appear on registers if their owners were relegated to
use of out buildings in the colder climates or seasons for ablutions, food preparation, and other
bodily functions.
85
See
Preservation
Easements,
NATL
TRUST
FOR
HISTORIC
PRES.,
http://www.preservationnation.org/information-center/law-and-policy/legalresources/easements/#.U1GhzVxR5G4 (last visited Sept. 27, 2014); see also NATL PARK SERV.,
EASEMENTS TO PROTECT HISTORIC PROPERTIES: A USEFUL HISTORIC PRESERVATION TOOL
WITH POTENTIAL TAX BENEFITS (2010), available at http://www.nps.gov/tps/taxincentives/taxdocs/easements-historic-properties.pdf.
86
See Kepple, 141 Conn. App. at 248.
87
See id. at 249.
88
Id.
89
See id.
90
Kepple, 141 Conn. App. at 24950.
91
Douglas B. Aikins, Demolition of Historic Structures; CEQA Compliance and Tactics, 30
CAL. REAL PROP. J. 19, 19 (2012).
83
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vires action by the government or a regulatory taking requiring just

compensationalthough cases invalidating historical preservation
regulations are fewer since the U.S. Supreme Court in 1978 decided Penn
Central.92 Communities deal with demolition in many instances, however,
by requiring the owner of the historically-designated property to obtain a
demolition permit, following one or more public hearings in which
advocacy frequently affords opposing viewpoints on the salvage potential of
the project.93
III. PRESERVATION PHILOSOPHIES IMPACTS ON HISTORIC ASSETS
USAGE IN AMERICAN URBAN CENTERS
Having described the basic tools of historic preservation, I now
summarize preservation advocates philosophies throughout our nations
history. Several land use scholars have identified three phases of
preservation thought and action in American life: monumentalism,
aestheticism, and revitalization. Professor Carol Rose was among the first to
detail the three phases (or primary preservation philosophies) in a 1981
article entitled Preservation and Community: New Directions in the Law of
Historic Preservation.94
A. Monumentalists Era
Monumentalists, early advocates of preserving historic assets, have
been labeled collectively as persons exhibiting an elite assertiveness of a
class- and ethnicity-based traditionalism.95 Monumentalists, who focused
92
Id.; see Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 138 (1978).
See Aikins, supra note 91, at 1920 (describing the historical preservation ordinance
procedures of a handful of California municipalities); see also Historic Preservation Commission,
CITY
&
COUNTY
OF
S.F.
PLANNING
DEPT,
http://www.sfplanning.org/index.aspx?page=1892#expect (last visited Sept. 27, 2014).
94
See generally Carol M. Rose, Preservation and Community: New Directions in the Law of
Historic Preservation, 33 STAN. L. REV. 473 (1980). Professor Roses third phase is somewhat
different than that identified here; hers identifies the virtue of assessing a buildings, structures, or
districts importance to the community. See id. at 49091. Thus, the central direction of this last
phase is community building, in which the larger perspective is that of community needs. See id.
This authors defined third philosophy presumes urban revitalization is the more consequential
perspective; in downtown redevelopment, as a function of sustainability and economic
empowerment, effective but thoughtful adaptive reuse is the primary community need in
management of historic assets. See id. at 51217.
95
MICHAEL HOLLERAN, BOSTONS CHANGEFUL TIMES: ORIGINS OF PRESERVATION &
PLANNING IN AMERICA 9 (1998) (footnote omitted); see Todd Schneider, From Monuments to
93
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115
on sites associated with the Founding Fathers, worked primarily to save

opulent mansions that had once housed the rich and powerful.96
Monumentalists themselves were usually part of the upper-class, having the
leisure to pursue preservation, whereas members of the working-class had
more immediate concerns.97 Later, monumentalists cautioned against the
prospect of historic buildings passing into the hands of improper people,98
typically immigrants. In this manner, the mission of preservation arose for
informing foreigners and less enlightened natives as to American traditions
and values, a view sometimes described as nativism.99
Because individual buildings were historical documents,
monumentalists believed they had the power, as heritage buildings
observers, to order our knowledge of our past.100 By controlling which
historic structures were preserved and how they were presented to the
public, monumentalists consolidated their own elite status and identity.101
This phenomenon occurred singularly in the South in the 1930s, where
preservation focused upon the confederate states past and their elite.102
Farther north, the New York City Landmarks Preservation Commission had
designated one-hundred thirteen buildings by the 1970s, and one-hundred
five of these structures had been built byand forthe wealthy.103
B. AestheticistsAscent
Aestheticists originally followed Charles Mulford Robinson, who
wrote that the first preservation priority was to save what is good and take
no account of either sentiment or history, only of [structural]
aesthetics . . . .104 Aligned with the City Beautiful movement beginning in
Urban Renewal: How Different Philosophies of Historic Preservation Impact the Poor, 8 GEO. J.
ON POVERTY L. & POLY 257, 263 (2001).
96
Schneider, supra note 95, at 263.
97
HOLLERAN, supra note 95, at 9.
98
Id. at 235 (footnote omitted; internal quotation marks omitted).
99
Id. at 234 (internal quotation marks omitted). Professor Carol Rose prefers to characterize
this attitude of preservation as inspiration, a way of fostering a sense of community. See Rose,
supra note 94, at 48182.
100
See HOLLERAN, supra note 95, at 89.
101
See id. at 9.
102
See Briann Greenfield, Marketing the Past: Historic Preservation in Providence, Rhode
Island, in GIVING PRESERVATION A HISTORY: HISTORIES OF HISTORIC PRESERVATION IN THE
UNITED STATES 117, 118 (Max Page & Randall Mason eds., 2004); see also HOLLERAN, supra
note 95, at 266.
103
Henry G. Cisneros, Preserving Everybodys History, in CITYSCAPE 85, 85 (1996).
104
HOLLERAN, supra note 95, at 162 (internal quotation marks omitted). This otherwise
116
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the 1890s, which advocated expression of a citys enduring civic and

cultural structure by preserving landmarks,105 Aestheticists created
preservation commissions in government bureaucracies across the country
that, even today, decide primarily on aesthetic grounds106 whether property
owners will be allowed to modify protected historic structures.107 Proposed
modifications to an historic neighborhood were (and still today, in many
communities, can be) halted, either fairly or unfairly, by invoking
preservations legal protections.108 One former chair of the New York City
Landmarks Preservation Commission complained about a growing
tendency to use designation for purposes outside the law . . . [such as] to
maintain the status quo, [or] to prevent development . . . .109
With the passage of the NHPA, federal policy makers clearly chose the
pathway of aestheticism in providing governmental protections by
expanding the National Register of Historic Places (NRHP) and creating
a review process for federal actions affecting historic properties.110 The
NHPA concurrently required federal agencies to make use of historic
became understood to be preservation (and architectural control) for architectural merit alone. See
Rose, supra note 94, at 484.
105
HOLLERAN, supra note 95, at 16163; WITOLD RYBCZYNSKI, CITY LIFE: URBAN
EXPECTATIONS IN A NEW WORLD 13648 (1995).
106
See, e.g., Constance Epton Beaumont, Making Design Review Boards Work,
ARCHITECTURAL REC. 34 (1992) (discussing how a design review board makes its decisions based
on how well proposed changes will harmonize with . . . existing architecture).
107
See JULIA H. MILLER, A LAYPERSONS GUIDE TO HISTORIC PRESERVATION LAW: A
SURVEY OF FEDERAL, STATE, AND LOCAL LAWS GOVERNING HISTORIC RESOURCE PROTECTION
9 (1997).
108
The hammer possessed by such review agencies is that if a contractor or developers
project is denied as certified rehabilitation, preservation tax credits are not available; in some
cases, exploiting those tax credits is the owners sine qua non for undertaking such projects. See
Jennifer Kuntz, A Guide to Solar Panel Installation at Grand Central Terminal: Creating a Policy
of Sustainable Rehabilitation in Local and National Historic Preservation Law, 10 VT. J. ENVTL.
L. 315, 331 (2009).
109
JOHN J. COSTONIS, ICONS AND ALIENS: LAW, AESTHETICS, AND ENVIRONMENTAL
CHANGE 30 (1989) (citation omitted); see Kenneth T. Jackson, Op-Ed., Gothams Towering
Ambitions,
N.Y.
TIMES,
Aug.
30,
2013,
at
A19,
available
at
http://www.nytimes.com/2013/08/30/opinion/gothams-towering-ambitions.html (stating that the
landmark designations goal seems to be to preserve anything that will maintain the streetscape,
whether or not the individual structures have significance. Entire blocks are frozen on the logic
that the first buildings ever put there are also the best that could ever be imagined there).
110
See Schneider, supra note 95, at 261. This is the notorious Section 106 consultation
process. See GrizCulturalHeritage, NHPA Section 106 Process.mov, YOUTUBE (May 17, 2012),
https://www.youtube.com/watch?v=UxJJ6MyMQeg. This movie takes the viewer on a tour of the
step-by-step process of assessing the consultation required under federal engagement with heritage
resources. See also HUTT ET AL., supra note 50, at 6.
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117
buildings to the maximum extent feasible,111 foreshadowing William

Sumner Appletons adaptive reuse initiatives.112 But incremental ascent of a
revitalization philosophy has not muted aestheticists. Midtown Manhattan
preservationists, among other stakeholders,113 caused former Mayor
Michael Bloombergs office to withdraw, on November 12, 2013, its East
Midtown Rezoning plan to rezone a seventy-three block swath of east
midtown.114 That rezoning plan was designed to spur the construction of a
new generation of bigger, state-of-the-art skyscrapers and in the process to
raise hundreds of millions of dollars for transit improvements in the [same
Midtown] area.115 Preservationist stakeholders argued that destroying
architectural gems in the Grand Central neighborhood and others in East
Manhattan would result from the plans adoption.116 The Citys Municipal
Art Society and the New York Landmarks Conservancy submitted to the
citys Landmarks Preservation and Planning Commissions a list of
seventeen buildings in Midtown East needing protection from
redevelopment.117 The fallout for availability, both of office inventory for
growth among the citys commercial tenants and for transit improvements
and pedestrian plazas, is palpable.118 Some version of the rezoning plan may
be revived during Mayor de Blasios administration,119 should
revitalizationists convince the City Council to use the citys heritage assets
in both a sustainable and responsible way.
C. The Rise of Revitalizations Preservationists
William Sumner Appleton focused on the aesthetic nature of historic
111
16 U.S.C. 470h-2 (2012).

See infra Part C.
113
The other camps argued that (a) Midtown East already was overdeveloped, and (b) the
mass transit system already was overtaxed. See Jackson, supra note 109.
114
See Charles V. Bagli, End of Proposal to Raise Skyline on the East Side, N.Y. TIMES, Nov.
13, 2013, at A1, available at http://www.nytimes.com/2013/11/13/nyregion/support-evaporatesfor-bloombergs-plan-to-rezone-east-side.html; Gus Delaporte, Zoned Out: Midtown East Rezoning
Put
on
Hold,
COMMERCIAL
OBSERVER
(Dec.
17,
2013,
1:00
PM),
http://commercialobserver.com/2013/12/zoned-out-midtown-east-rezoning-put-on-hold/; Daniel
Geiger, Midtown East Rezonings Demise May Be Short-Lived, CRAINS NEW YORK BUS. (Nov.
12,
2013,
5:32
PM),
http://www.crainsnewyork.com/article/20131112/REAL_ESTATE/131119961#.#.
115
Geiger, supra note 114.
116
Id.
117
Delaporte, supra note 114.
118
See Bagli, supra note 114; Geiger, supra note 114.
119
See Delaporte, supra note 114; Geiger, supra note 114.
112
118
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[Vol. 32:nnn
neighborhoods and is considered the guiding figure of revitalizationists.120

He did not, however, make common cause with neighborhood
preservationists in the sense of fighting development for the principal
purpose to elevate nativism or beauty as an ideal.121 Later revitalizationists
expanded his approach to encompass preservation of the city itselfits
mix of economic uses, varied physical and social fabrics and human
scale.122 In other words, most such preservationists view designation of
landmarks as a major catalyst for urban renewal characterized as
revitalization.123
The federal government adapted this school of thought into its urban
planning initiatives. The Neighborhood Redevelopment Program in the
1960s encouraged local authorities to rehabilitate older buildings instead of
replacing them.124 In the 1970s, programs like Urban Homesteading and
Neighborhood Housing Services directly linked preservation with lowincome housing, intending to stem the worst results of gentrification.125
Executive Order 13006 directed federal agencies to locate low-income
housing in downtowns and to give highest priority to occupying historic
districts.126 The revitalizationists goal in preservation is to transform a
symbol of decline of Americas citiesdecaying buildingsinto valued
assets that can spark neighborhood revitalization.127
Revitalizationists allied themselves with New Urbanism planners and
other environmentalists, especially in the 1990s,128 and today engage in
sustainable development, shedding their earlier tendencies to affirm anglosaxon predominance or embrace architectural glory for its own sake.129
120
See Michael Holleran, Roots in Boston, Branches in Planning and Parks, in GIVING
PRESERVATION A HISTORY: HISTORIES OF HISTORIC PRESERVATION IN THE UNITED STATES,
supra note 102, at 55, 6769.
121
Id. at 69.
122
ROBERTA BRANDES GRATZ, THE LIVING CITY: HOW AMERICAS CITIES ARE BEING
REVITALIZED BY THINKING SMALL IN A BIG WAY 248 (1994).
123
See Judy Mattivi Morley, Making History, Historic Preservation and Civic Identity in
Denver, in GIVING PRESERVATION A HISTORY: HISTORIES OF HISTORIC PRESERVATION IN THE
UNITED STATES, supra note 102, at 211, 21112; see also Schneider, supra note 95, at 261.
124
Schneider, supra note 95, at 261.
125
See id. at 26672. These abuses center upon driving out long-term residents from what had
been low-income neighborhoods before rents and purchase prices spike following concerted
efforts to rehabilitate dilapidated tenements. See, e.g., David B. Fein, Historic Districts:
Preserving City Neighborhoods for the Privileged, 60 N.Y.U. L. REV. 64, 8081 (1985).
126
See Exec. Order No. 13,006, 61 Fed. Reg. 26,071 (May 21, 1996).
127
See Schneider, supra note 95, at 262.
128
Holleran, supra note 120, at 70.
129
See HOLLERAN, supra note 95, at 236; see also Congress4NewUrbanism, CNU 20New
2015]
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119
Rehabilitation of existing buildings conserves the built environment instead

of consuming increasingly scarce natural resources for new construction.130
Furthermore, rehabilitation work reduces the heavy burden on landfills
imposed by demolition and construction detritus.131
Revitalizationists generally try to leverage preservation as a tool to
help expand economic opportunities in targeted areas.132 The Boston
Chamber of Commerce first recognized the financial benefits of
preservation more than seventy-five years ago.133 Today, revitalizationists
engage in economic development at unprecedented levels, most notably
through the National Trusts National Main Street Center (Main Street).
Main Street is a national consulting operation that coaches communities in
reviving their downtown areas.134 In its thirty-two-year history, Main Street
has worked with more than 1,500 communities to produce a net total of
109,664 new businesses and more than 473,000 net new jobs.135 According
to their data, every public dollar spent on Main Street programs has
generated $18 in private new investment; these programs in total have
generated almost $55 billion in reinvestment.136
D. Influences of These Movements
These three movement philosophies rationalize community tendencies
to save local history at all costs, assess the realistic functionality of
proposed preservation assets before landmark designation, or repurpose
Urbanism and Historic Preservation: Collaboration Strategies, YOUTUBE (May 29, 2012),
http://www.youtube.com/watch?v=ghc0BqkrSKo.
130
See AMY L. ARNOLD, STATE HISTORIC PRES. OFFICE, PRESERVATION SHORE TO SHORE:
PLANNING TO PRESERVE: MICHIGANS STATE HISTORIC PRESERVATION PLAN 2001-2006 (2002),
available at http://michigan.gov/documents/hal_shpo_preservation-shore-to-shore_51222_7.pdf.
131
See, e.g., DONOVAN RYPKEMA, THE ECONOMICS OF HISTORIC PRESERVATION: A
COMMUNITY LEADERS GUIDE 33 (1994).
132
See Ijla & Ryberg, supra note 50, at 267, 279.
133
See HOLLERAN, supra note 95, at 241.
134
See Main Street Consulting Services, NATL MAIN STREET CENTER,
http://www.preservationnation.org/main-street/field-services/#.U1H2rVxR5G5 (last visited Sept.
28, 2014). Arizonas Main Street Program is codified in ARIZ. REV. STAT. 41-150141-1505,
and its regulations appear in ARIZ. ADMIN. CODE R20-1-701R20-1-712.
135
See Main Street Reinvestment Statistics, NATL MAIN STREET CENTER,
http://www.preservationnation.org/main-street/about-main-street/reinvestment-statistics1.html#.Uscjg8KA384 (last visited Sept. 28, 2014); see also Kennedy Smith, Op-Ed., Main Street,
U.S.A., Is Still in Business, N.Y. TIMES, Mar. 16, 2000, at A22, available at
http://www.nytimes.com/2000/03/16/opinion/l-main-street-usa-is-still-in-business-293539.html.
136
See Main Street Reinvestment Statistics, supra note 135.
120
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assets while maintaining essential faade features of currently-designated

sites. In the case of First BC, the aestheticists view prevailed, since the
churchs nomination occurred nearly three years before the fire ravaged its
interior.137 Fifteen years lapsed between the First BC congregations
departure and the church campuss placement on the NRHP.138 Meanwhile,
additional churches in downtown Phoenix, bereft of neighborhood
environments, lost attendance and financial contributors. It became
progressively less likely that First BC would experience a church revival;
and its interior architecture was too distinctively identified with worship
functions to be well-suited for an alternative use in its interior
configuration, other than, perhaps, as a museum, library branch, or
archive.139 Since the standard for NRHP designation today is not
functionality, however, First BCs faade easement stymies contemporary
refurbishment, removing it from the inventory of sites that could better be
developed for greater livability in Phoenixs urban core. This propertys
treatment confirms NHPAs critics assertion that merely connecting a
historical narrative to a surviving building should not justify preservation
designation.140
Edward Glaeser argues that the correct, although delicate, balance
between protecting architectural treasures and increasing density for city
growth, along with competitiveness, is meant to allow as much new
development as possible in areas where rebuilding is permitted, even if it is
immediately adjacent to the most important and exemplary architectural
treasures.141 Carol Rose identifies community building as the essential
137
See Pela, supra note 4.

See id.
139
Museum attendance in the United States is waning. BETTY FARRELL & MARIA
MEDVEDEVA, CTR. FOR THE FUTURE OF MUSEUMS, AM. ASSN OF MUSEUMS, DEMOGRAPHIC
TRANSFORMATION AND THE FUTURE OF MUSEUMS 12 (2010), available at
http://culturalpolicy.uchicago.edu/sites/culturalpolicy.uchicago.edu/files/DemographicTransformation.pdf. The prognosis for increases in museum attendance is poor. See id. at 13.
140
See, e.g., U-Haul Co. of E. Mo., Inc. v. City of St. Louis, 855 S.W.2d 424, 428 (Mo. App.
1993) (observing that the current use of the structure, not its obsolete former use, must be
evaluated by historic preservation regulators, remarking that regulatory purview does not include
preventing effective use of the property that, denied, might result in the propertys deterioration or
ruin, concluding: If the public weal demands preservation because of architectural significance
irrespective of cost the power of eminent domain is available). Edward Glaesers argument, too,
is economicthat unrestricted preservation (among other factors) inhibits building heights to the
point of decreasing available housing stock, rendering city dwelling unaffordable except to the
wealthy, in turn adversely affecting community diversity and vitality. Glaeser, supra note 32, at
1112, 261.
141
See Glaeser, supra note 32, at 157, 26264.
138
2015]
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121
rationale for preservation, which establishes a framework in which dwellers

have a shared community experience.142 J. Peter Byrne argues that
preservation affords personal freedom; in walkable, authentic
neighborhoods built to human scale (including historic districts), the
individual feels removed from the demanding structures of bureaucratic
worklife,143 government controls, and modern consumption pressures,
giving rise to ones personal identity.144
Still, the issue of preservation as an impediment to urban-center
functionality transcends land inventory availability, density-anchorage,
community-building, or personal development agendas, giving way to
essential forward-looking municipal planning. Challenges in restoring
buildings after being damaged, such as buildings worn by the elements or
the mere passage of time, cause ruin and disuse of designated structures,
fostering blight. Design and construction issues arise from the very nature
of materials, scale, and methods of construction. This is apparent when
todays materials are no longer compatible with those incorporated in a
structures original construction or when the original materials products
violate contemporary performance standards, such as those associated with
energy conservation and other sustainability elements. Simply summarized,
changing use standards render some types of building forms, floor heights,
and column grids incongruent with contemporary construction methods,
condemning such features to defy restoration efforts.145 Because restoration
to an original condition is virtually impossible for some historic assets,
assessment of their adaptive reuse potential prior to their protected
designation is sound land use planning. Designating properties for
preservation without serious forward planning is not virtuous or sustainable
behavior; it aids neither neighborhood dwellers, developers, nor urban
center individuals. Governments and preservation stakeholders should not
succor first-stage thinking146 in heritage protection.
142
143
See Rose, supra note 94, at 48894.

J. Peter Byrne, The Rebirth of the Neighborhood, 40 FORDHAM URB. L.J. 1595, 1602
(2013).
144
See id. at 160205.

See CIVICVISIONS LP, supra note 22, at Executive Summary. This phenomenon is known
as inherent vice issues. Id. While one may hope that modern technology will afford a solution
eventually to the challenges of incompatibility, its likely that more resources will be poured into
coding to create high-definition three-dimensional images of the probable appearance of an
historic site than to train craftsmen to build eighteenth century door frames or to sculpt gargoyles.
146
See THOMAS SOWELL, APPLIED ECONOMICS: THINKING BEYOND STAGE ONE 614 (rev.
ed., enlarged ed. 2009). Stage one thought considers the immediate results of an action without
determining what happens next, over a period of yearsother than in terms of political fallout
145
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[Vol. 32:nnn
IV. ADAPTIVE REUSE AND ITS SUSTAINABILITY

IMPLICATIONS IN URBAN CENTERS
Adaptive reuse occurs when old property is refurbished in a way that
changes its use, often triggering new regulatory conditions.147 The
consumption of land and raw materials, including non-renewable resources,
is diminished when adaptive reuse is substituted for demolition or full
remodeling of an existing structure.148 Demolition is unneeded if an older
building can cost-effectively be adapted to current uses and an energyefficient status, which promotes sustainability.149
A majority of buildings ultimately outlive their original purposes, due
to obsolescence or redundancy, when a change in demand for their brand of
utility occurs.150 But adaptive reuse conserves resources by using
sustainable construction practices, which reduces greenhouse gas emissions
and other environmental waste in this era of global climate change.151 Many
prior to the politicians next election campaign. See id. The desire to do something to save an
old building without any end-game assessment of its future function or sustainability may be
temporarily satisfying, but ultimately underserves the community. Cf. id. at 714.
147
See, e.g., ST. PETERSBURG, FLA., CODE 16.30.020 (1992) (Adaptive Reuse of Historic
Buildings Overlay). The purpose of the section is to encourage the retention and productive
reuse of structures that have historic, architectural, or cultural value to the City instead of seeing
their underutilization or demolition because their original use has become functionally obsolete.
Id. at 16.30.020.1.
148
Kuntz, supra note 108, at 32930.
149
DONALD F. FOURNIER & KAREN ZIMNICKI, ENGR RESEARCH & DEV. CTR., ERDC/CERL
TR-04-7, INTEGRATING SUSTAINABLE DESIGN PRINCIPLES INTO THE ADAPTIVE REUSE OF
HISTORICAL
PROPERTIES
1
(2004),
available
at
http://oai.dtic.mil/oai/oai?verb=getRecord&metadataPrefix=html&identifier=ADA431746. This
work gives specific guidelines to help integrate concepts of sustainable development into the
adaptive reuse of historical buildings in a way that enhances the built environment while
preserving the nations cultural endowment.
Sustainable development is development that meets the needs of the present without
compromising the ability of future generations to meet their own needs. It contains
within it two key concepts:
[1] the concept of needs, in particular the essential needs of the worlds poor, to
which overriding priority should be given; and
[2] the idea of limitations imposed by the state of technology and social
organization on the environments ability to meet present and future needs.
WORLD COMMN ON ENVT & DEV., OUR COMMON FUTURE 43 (1987).
150
See Craig A. Langston, The Sustainability Implications of Building Adaptive Reuse (2008)
(unpublished paper, CRIOCM Intl Research Symposium on Advancement of Construction
Management
and
Real
Estate,
Beijing,
China),
available
at
http://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1003&context=sustainable_develop
ment.
151
See Craig A. Langston, On Archetypes and Building Adaptive Use 1 (2011) (unpublished
2015]
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123
historic buildings enjoy two advantages in advancing preservation

initiatives. First, they are in relatively accessible locations in central city
areas, inducing greater heritage tourism.152 Historic properties tend to be
inherently sustainable as a function merely of location.153 Since many of
them were built either in communities before automobile ownership became
widespread or where mass transit use was commonplace, their locations
inherently are pedestrian- and transit-oriented.154 These assets preservation
complements mass transit systems within cities central business districts,
including inducing tourist use of transit opportunities.155
Second, prior to sophisticated heating and cooling systems, these
structures were built with intimate knowledge of climate conditions by local
builders from locally-sourced materials.156 As a matter of design, therefore,
they feature environmentally-sensitive characteristics. Here, historic
preservation in itself becomes an act of sustainability,157 albeit not of
optimizing sustainable practices.158 Other attributes of historic assets are
paper, 17th Annual Pacific Rim Real Estate Society (PRRES) Conference, Gold Coast, Australia),
available
at
http://www.prres.net/papers/langston_on_archetypes_and_building_adaptive_reuse.pdf.
152
See, e.g., Xiaobo Su, Heritage Production and Urban Locational Policy in Lijiang, China,
35.6 INT. J. URB. & REG. RES. 1118, 1118-9 (2011) (acknowledging the centrality of heritiage to
urban regeneration and economic restricting in Western cities, a form of boosterism in
municipal entrepreneurship); Maria Panaritis, Application Idea Considered to Make Center City
Tourism Easier, PHILLY.COM, Nov. 2, 2014 (smartphone application enables visitors in walking
distance to navigate to heritage sites). Where heritage tourists visit in downtowns (including their
routes between historic sites and retailing opportunities) yields important data for promoting city
core revitalization, see, e.g., Astrid D.A.M. Kemperman, Aloys W.J. Borgers, Harry J.P.
Timmermans, Tourist Shopping Behavior in a Historic Downtown Area, 30 TOURISM MGMT. 208
(2009) (describing and predicting tourist shoppers route choice behavior in a downtown area).
153
See WBDG Historic Pres. Subcommittee, Sustainable Historic Preservation, WHOLE
BUILDING DESIGN GUIDE, http://www.wbdg.org/resources/sustainable_hp.php (last updated Dec.
2, 2013).
154
See Ijla et al., supra note 50, at 263.
155
Id.
156
See ERIC ALLISON & LAUREN PETERS, HISTORIC PRESERVATION AND THE LIVABLE CITY
175 (2011); see also Kaid Benfield, When values collide: balancing green technology and historic
buildings, SWITCHBOARD: NATURAL RESOURCES DEFENSE COUNCIL STAFF BLOG (June 25,
2012), http://switchboard.nrdc.org/blogs/kbenfield/when_values_collide_balancing.html..
157
See Langston, supra note 151, at 4; see also Kuntz, supra note 108, at 32930. As Ms.
Kuntz notes, because of the waste from building debris and new constructions energy
consumption, restoring an old building virtually always is a more efficient use of resources. Id.
158
See, e.g., ALLISON & PETERS, supra note 156, at 175 (stating that the Green Building
Council must take an active approach to incorporate historic preservation into its policy for federal
funding and the LEED point system to achieve true sustainability); see also Kuntz, supra note
108, at 330 (providing shortcomings that include inefficient windows and insulation that result in
air leaks that lead to high utility consumption, as well as dated heating and cooling equipment that
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less salutary, however, in communities where population density targets are

still beyond reach. Especially in growing cities, tension persists between
preservation interests and densification.159 Where central city
neighborhoods are not developed at the density that city planners and
managers seek, historic designation of structures or districts reduces the
supply of land for more efficient development, supplanting parcels that lend
themselves ideally to mixed use or transit-oriented projects.160 From the
growth perspective, historic designation of property effectively downzones the historic assets parcels and impacts denser zoning that might
ideally implement uses on immediately adjoining lots.161
V. ILLUSTRATING THE SUSTAINABILITY POTENTIAL OF REPURPOSING
HISTORIC PROPERTY ASSETS
Will Bruder, a renowned Phoenix-based architect, and Robert Pela, a
local theater critic, journalist, and art gallery owner, participated in a panel
discussion during Phoenix Urban Design Week in 2013162 on prescriptions
for Phoenixs full-blown downtown163 resurgence. Bruder identified the key
to creating a 20-minute city downtown as adding dense and affordable
housing, and replacing auto-centricity with walkability in scalable
pedestrian environments.164 Dense, to Bruder, meant primarily
congregated developments of attached housing stock, built vertically to a
significant height, like the Roosevelt Point Apartments development at the
northern perimeter of downtown Phoenix.165 Pela added two ingredients
chronically lacking in Phoenixs downtown and impairing its livability:
pedestrian access to necessaries (primarily, groceries) and schools.166 Pelas
compromise thermal performance).
159
Ijla et al., supra note 50, at 266.
160
See id.
161
Id.
162
See Alexandra Scoville, Final Downtown Devil Discussion of semester examines
Phoenixs
Identity
and
the
arts,
DOWNTOWN
DEVIL
(Apr.
11,
2013),
http://downtowndevil.com/2013/04/11/43439/phoenix-arts-identity-bruder-robrt-pela/.
163
The authors contrived Phoenix downtowns boundaries are Margaret T. Hance Parks
alignment on the North, Jackson Street on the South, 3rd Avenue on the West, and two-hundred
fifty feet east of the eastern right of way of 7th Street on the East.
164
See, e.g., JEFF SPECK, WALKABLE CITY: HOW DOWNTOWN CAN SAVE AMERICA, ONE
STEP AT A TIME 11 (2012) (describing a general theory of walkability, including elements of
utility, safety, comfort, and human interest).
165
Michael Widener, Pondering Pelas Paradox, Part Premier, TERRA INCOGITO (Apr. 16,
2013), http://www.terraincogito.com/pondering-pelas-paradox-part-premier.
166
Id.
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125
view is that the creative class (Richard Floridas now shopworn term for
young professionals and technologically cognoscenti who self-identify as
connoisseurs of upmarket urban living167) would not locate downtown if
they could not purchase essential goods affordably and send their children
to school in safe, academically-respectable institutions.168
Downtown Phoenix has not housed a supermarket in recent memory.
The marginal groceries business in this urban core has been dominated by
one enterprise, Circle K Corp., with its limited inventories of staples, since
the mid-1950s.169 The conventional wisdom of supermarket chains new
store development is grounded in rigid demographic fundamentals.170
Rooftops and houses under construction (at the time of the analysis), family
average incomes, and grocery expenditures numbers trigger vertical
development of a supermarket. Premature opening of a supermarket
without sufficient middle class households within a prescribed radius is
forbidden. While residents believe that downtown retail necessaries must
address demand to spur downtown Phoenix population growth,
supermarkets proceed under another order of business.
167
See, e.g., RICHARD FLORIDA, WHOS YOUR CITY? HOW THE CREATIVE ECONOMY IS
MAKING WHERE TO LIVE THE MOST IMPORTANT DECISION OF YOUR LIFE 11719 (2008).
(describing urban clusters with high location quotients as a metric demonstrating significant
place satisfaction). Historic assets in Europe are seen as soft locational factors in attracting
knowledge-based industries and qualified and creative workforces. See EUROPEAN UNION,
LEIPZIG CHARTER ON SUSTAINABLE EUROPEAN CITIES 3 (Final Draft2007), available at
http://ec.europa.eu/regional_policy/archive/themes/urban/leipzig_charter.pdf; see also Byrne,
supra note 144, at 1604.
168
See Widener, supra note 165.
169
The Phoenix Public Market, the first downtown grocery not affiliated with a chain in
decades, opened a half-mile north of downtown in the fall of 2009 but closed in the summer of
2012. See ABC15 Arizona, Phoenix Public Market going out of business, YOUTUBE (May 7,
2012), http://www.youtube.com/watch?v=cMfObLo0rZ0. The Oakville Grocery Co. opened in
2011 and closed before Phoenix Public Markets demise. See OakvilleGroceryTV, Oakville
Grocery
Grand
Opening
Press
Conference,
YOUTUBE
(July
3,
2011),
http://www.youtube.com/watch?v=7Q9_68ZvB5c; see also Kristena Hansen, Oakville Grocery
booted by Phoenix CityScape had trail of financial woes, ARIZ. REPUBLIC (Oct. 15, 2011, 12:00
AM) http://www.azcentral.com/business/articles/2011/10/15/20111015phoenix-oakville-grocerybooted-cityscape-financial-woes.html.
170
See, e.g., Jason M. Carpenter & Marguerite Moore, Consumer Demographics, Store
Attributes, and Retail Format Choice in the US Grocery Market, 34.6 INTL J. RETAIL &
DISTRIBUTION MANAGEMENT 43452 (2006) (describing traditional neighborhood markets).
Elements for study include median household income, household size, vehicle availability, and
estimated drive times. Resident and market-based surveys are also conducted in these analyses.
See Heidi Guenin & Nathan McNeil, Evaluating Grocery Store Siting: A Case Study at SE 122 nd
and SE Foster (Dec. 10, 2009) (unpublished final paper, Portland State Univ.), available at
http://nathanmcneil.files.wordpress.com/2010/05/grocerystoresiting-final.pdf.
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Chain-store, mega-market shopping as the primary venue to buy ones

necessaries is a fairly recent concept. In old European cities, even in the
most capitalistic among them, supermarkets still tend to be located at the
edges of town.171 In contrast, on traditional high streets, supermarkets are
bulked-up neighborhood grocers by American superstore standards.172 A 15
to 20,000 square foot marketplace would compete successfully in numerous
major European cities central business districts.173 A trend away from
American hypermarket or superstore retailing is evident, however, from
Safeways and Wal-Marts implemention of small-format grocery stores in
Arizona and California.174 In Phoenixs downtown, a grocer of that scale
might become a gathering place of sorts, serving the community fellowship
purpose that churches traditionally held in congested residential city cores.
The opportunity to repurpose First BC lies in its immediate context.
The property lies only four city blocks from the closest light rail stations.175
Across from the church is a 1,700-stall, Adams Street city-owned parking
garage. Two blocks from the church, to the south, at the 305 Building on
West Washington Street, is a 1,340-stall, city-owned parking garage. A
downtown Valley Metro bus traverses Van Buren Street on the north side of
the church, and a portion of that bus route is only a quarter mile from
Phoenixs downtown bus terminal. The mass and vehicular transportation
opportunities in the area of First BC abound; coordinated planning between
the owners of First BC and the city to implement a marketplace could
resolve the groceries dilemma for Phoenixs downtown core. The optimal
171
See ANDREW SETH & GEOFFREY RANDALL, THE GROCERS: THE RISE AND RISE OF THE
SUPERMARKET CHAINS 16387 (2d ed. 2001).
172
See PETER COLEMAN, SHOPPING ENVIRONMENTS: EVOLUTION, PLANNING AND DESIGN
4041 (2006). See generally Rosa Colom & Daniel Serra, Supermarket Key Attributes and
Location Decisions: A Comparative Study Between British and Spanish Consumers (Univ.
Pompeu
Fabra,
Working
Paper
No.
469,
2000),
available
at
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.43.1335&rep=rep1&type=pdf.
173
Sainsburys Supermarkets in high streets are approximately 18,000 square feet. Cf. Harry
Wallop & Graham Ruddick, Could Supermarkets Race for Shop Space Backfire?, TELEGRAPH
(Jan.
28,
2012),
http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/9046596/Couldsupermarkets-race-for-shop-space-backfire.html. In addition, there is evidence that far smaller
grocers can survive in city centers, even integrating with historic American buildings. See, e.g.,
RHONDA PHILLIPS ET AL., SUSTAINABLE COMMUNITIES: CREATING A DURABLE LOCAL
ECONOMY 22250 (Earthscan Tools for Community Planning Ser., 2013) (describing a
Burlington, Vermont, Co-Op City Market experience).
174
See NIGEL F. PIERCY, MARKET-LED STRATEGIC CHANGE: TRANSFORMING THE PROCESS
OF GOING TO MARKET 522 (4th ed. 2009).
175
See GOOGLE EARTH, http://www.google.com/earth/ (last visited Sept. 26, 2014) (searching
for 302 W Monroe St, Phoenix, AZ)
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127
sustainability solution, in short, is to repurpose the property, establishing a

marketplace inside First BC.176
Whether interior details of the church are preserved as design
amenities is an issue for Phoenixs Historic Preservation Commission, but
even if the SHPO determined that essential interior architectural features
could not be modified, pop-up retail shops inside the structure remain a
possibility.177 These shops, although small and temporary, can build trade
and synergy by prolonged consumer exposure. Pop-up retail allows a
company to affordably create a unique environment, engaging its customers
while generating an ambience of relevance and interactivity178precisely
176
No doubt some will conjure, completing this sentence, Jesus cleansing the temple of
money changers, as described in the Holy Bible. Mark 11:1519 & 27-33 (King James); Matthew
21:1217 & 2327 (King James); Luke 19:4548, 20:18 (King James). Since the Middle Ages, a
towns major cathedral has functioned as a kind of marketplace, with different commercial
activities centered on the different portals, particularly during the regular fairs. Textiles were sold
around the north transept, while meat, vegetable, and fuel sellers congregated around the south
porch. See OTTO VON SIMSON, THE GOTHIC CATHEDRAL: ORIGINS OF GOTHIC ARCHITECTURE
AND THE MEDIEVAL CONCEPT OF ORDER 167 (Princeton Univ. Press, 3d ed. 1988). Moneychangers (critical when each town or region used its own currency) had banques near the west
portals and also in the nave itself. See id. Wine sellers plied their trade in the nave, although
occasional 13th-century ordinances survive which record them being temporarily banished to the
crypt to minimize disturbances. See id. If there are no longer to be sacred ceremonies inside First
BC, does it matter whether the marketplace operates inside or immediately outside the doorways
of the structure?
177
That churches are suitable for retail conversion is evident from these sites: 6 Creatively
Converted Chapels and Churches: Bookshops, Bars & More, URBAN GHOST (Jan. 18, 2011),
http://www.urbanghostsmedia.com/2011/01/6-creatively-converted-chapels-churches/;
C.J.
Hughes, Church Turned Club is Now a Market, N.Y. TIMES, Mar. 17, 2010, at B7, available at
http://www.nytimes.com/2010/03/17/realestate/commercial/17limelight.html?_r=0; James White,
Prophet exchanged for profit as Tesco opens latest convenience shop . . . in a church, DAILY
MAIL (Nov. 11, 2010, 9:48 AM) http://www.dailymail.co.uk/news/article-1328629/Tesco-openslatest-convenience-shopchurch.html. Limelight Marketplace, on The Avenue of the Americas,
featured three floors of assorted shops under one roof until it failed in 2013; at its peak, it housed
60-odd specialty shops, cafes, and salons. See Hughes, supra. David Barton Gym will be
converting part of the Gothic Revival brownstone buildings into a workout and personal training
operation. See Storied Limelight Getting David Barton Gym, PAGE SIX (Dec. 15, 2013, 10:35 PM),
http://pagesix.com/2013/12/15/storied-limelight-getting-david-barton-gym/.
178
See, e.g., Billy Gray, On 10th Anniversary of First NYC Pop-Up, Retailers Look Back,
COMMERCIAL OBSERVER (Dec. 5, 2012), http://commercialobserver.com/2012/12/on-10thanniversary-of-first-nyc-pop-up-retailers-look-back/; see also Matt Townsend, The Staying Power
of
Pop-Up
Stores,
BUSINESSWEEK
(Nov.
11,
2010)
http://www.businessweek.com/magazine/content/10_47/b4204026293305.htm. Environments of
pop-up stores are described narratively and depicted in Liliane Wong, Sustainability: Industry
Standards and Innovation, in DESIGNING INTERIOR ARCHITECTURE: CONCEPT, TYPOLOGY,
MATERIAL, CONSTRUCTION 66, 8386 (Sylvia Leydecker ed., 2013).
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the sort of neighborhood vitality envisioned by Jane Jacobs.179 In

communities like Birmingham, Alabama, pop-up retail opportunities are a
staple, joining businesses and the community, and energizing downtown
street life in the bargain. Birmingham calls its retailing initiative, one
element of its twenty-four-hour mixed-use district, The Street Life
Project.180
First BC offers both a wind-break and a defined space that is attractive
to consumers due to the interior architectural uniqueness on its first floor. A
project within this space defines adaptive reuse. If First BCs roof remains
open to the elements, the interior space may be occupied by roofed
temporary structures, such as in ISO containers modified for sales space.181
If these temporary structures have locking windows and doors, merchandise
security concerns are well mitigated. Since the greenest building is one
already erected,182 First BCs interior marketplace is inherently sustainable.
More sustainable still, travelers moving by a variety of modes can be
accommodated in this location. Phoenix can open the public employee
garages to use by the general publics motorized vehicles during evening
hours and on weekends when competition for stalls is nil. The location of
the marketplace is no more than a twenty minute walk from many portions
of Phoenixs downtown residential structures. Security risks seem minimal
with locking retail pods, but occupancy charges collected from merchants
179
See JACOBS, supra note 24.

See REVIVE BIRMINGHAM, www.revivebirmingham.com (last visited Sept. 30, 2013)
(explaining how Birmingham promoted filling vacant storefronts with pop-up retail and dining
establishments).
181
See Wong, supra note 178, at 8586. See also ULRICH KNAACK ET AL., PREFABRICATED
SYSTEMS 6472 (Principles of Construction Ser., 2012); ROBERT KRONENBURG, PORTABLE
ARCHITECTURE: DESIGN AND TECHNOLOGY 4451 (2008); Emilie Raguso, First Shipping
Container Village Headed to Berkeley, BERKLEYSIDE (Nov. 8, 2013, 9:00 AM),
http://www.berkeleyside.com/2013/11/08/first-shipping-container-village-headed-to-berkeley/. In
the event readers wonder how such temporary buildings might get through the door to the interior,
ISOs can be (and typically are) lowered by cranes onto the floor of the structurein this case
through the compromised roofs openingwithout threatening the condition of First BCs
remaining roof or doors.
182
See Emily Badger, Why the Most Environmental Building is the Building Weve Already
Built, ATLANTIC CITIES (Jan. 24, 2012), http://www.theatlanticcities.com/housing/2012/01/whymost-environmental-building-building-weve-already-built/1016/. The point of the expression,
since existing structures have embodied energy, is that the carbon investment in constructing a
new building is much higher (since its materials have to be manufactured and shipped to the site),
making it more sustainable to retrofit an existing structure. See Sarah B. Schindler, Following
Industrys LEED: Municipal Adoption of Private Green Building Standards, 62 FLA. L. REV. 285,
349 (2010). In fact, the greenest building is the existing structure equipped with carbon-neutral
technology, rendering the structure a net-generator of renewable energy.
180
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129
occupying pop-up shops could pay sentries securing the interior against
historic souvenir opportunists.
In addition to sustainability advantages, public exposure, as opposed to
exclusion, creates potential to secure the church buildings future. By
keeping First BC boarded-up and fenced off, the public is blind to its
architecturally-worthy elements, since individuals prefer avoiding a
depressing streetscape like that presented today. Opening the site to public
visitation for secular functions opens linkages to opinion makers, the
business community, government officials, and everyday citizens. Opening
First BC for temporary operations alone could catalyze initiatives by the
business community (in the form of partnerships involving contractors or
trade organizations via private grant funding), the Phoenix government (in
the form of community grants or proposed tax-increment financing), and
possibly crowd-funding,183 enabling joint risk-taking in long-term adaptive
reuse and structural restoration of the interior. First BC as a marketplace
reinforces the artist-studio and the pedestrian open-house atmosphere the
city endorses through its downtown zoning code.184 The Downtown
Phoenix Arts Coalition has joined forces with city government to promote
an increase in authentic street life, boutique amenities, and pedestrianfriendly access ways in the downtown core.185 These dimensions of
livability may result (subject to overcoming structural integrity limitations
from neglect) in eventual repurposing of First BC for a mixed-use project
that might feature live-work spaces on upper floors or a caf in the bell
tower with views of downtown.
Development like this proposed adaptive reuse of First BC fuses Jane
Jacobss emphasis on neighborhood variety and Professor Roses entreaties
for community-building with Professor Glaesers competitiveness
imperative justifying urban core density increases. More persons will
frequent downtowns featuring distinctive shopping environments,
particularly in repurposed buildings with unique architecture or dcor. Such
place-making increases residential density by tapping into pent-up demand
183
See, e.g., Rod Ebrahimi, How Crowdfunding Could Reshape Real Estate Investing,
FORBES (Dec. 12, 2013, 9:00 AM), http://www.forbes.com/sites/rodebrahimi/2013/12/12/howcrowdfunding-will-impact-real-estate-investing-an-interview-with-realtyshares/.
184
See PHX., ARIZ., ZONING ORDINANCE ch. 12 (2013), available at
http://www.codepublishing.com/az/phoenix/.
185
See ANDREW ROSS, BIRD ON FIRE: LESSONS FROM THE WORLDS LEAST SUSTAINABLE
CITY 75103 (2011). Illustrations of neighborhoods appear at ARTLINK PHOENIX,
www.artlinkphoenix.com (last visited Sept. 30, 2014).
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for convenience living and the urban central (heart of the city) lifestyle.186
VI. ELEVATED STANDARDS AND ACTIONS FOR
PRESERVING SUSTAINING LEGACIES
A.Imbedding Sustainability
Application Processes
Objectives
in
Historic
Designation
If adaptive reuse of an historic property is not intuitive, even less so is

seeking a propertys membership in an historic listing without any
implementation strategy. A solution to such stage one planning is for
future historic preservation to borrow from American trademark registration
and mark-maintenance processes. Simplified, a federal trademark
registration lasts for a ten-year term, with ten-year renewal terms.187
Between the fifth and sixth year after the date of the marks initial
registration, however, the owner of the trademark (or a successor, if it has
been sold following registration) must file an affidavit avowing continuous
use of the mark.188 If that affidavit is not filed, the marks registration is
canceled.189 This sanction curbs persons tempted to register a mark merely
to deprive others of its use.190 The regulatory premise is that the trademark
owner must employ the mark in commerce or lose control of its distinctive
identification power.191
186
See URB. LAND INST. (SING.) AND CENTRE FOR LIVABLE CITIES, 10 PRINCIPLES FOR
LIVEABLE HIGH-DENSITY CITIES: LESSONS FROM SINGAPORE 8, 489, 5661 (2013), available at
http://www.uli.org/wp-content/uploads/ULI-Documents/10PrinciplesSingapore.pdf
(describing
relieving density with variety [including in building heights] and promoting innovative and
nonconventional solutions to space shortages). See also J. Peter Byrne, supra note 144, at 1604
(describing how preservation stimulates demand for urban living via enabling easy, spontaneous
access among the creative class).
187
DEBORAH E. BOUCHOUX, INTELLECTUAL PROPERTY FOR PARALEGALS: THE LAW OF
TRADEMARKS, COPYRIGHTS, PATENTS, AND TRADE SECRETS 94 (3d ed. 2009).
188
This is the so-called Section 8 affidavit. See id. at 9293.
189
Indeed, a trademark can be continued on the federal register even when not used, if the
registrant shows special circumstances that would justify nonuse. Id. at 97. But, to describe
more diverts the reader from the main point: that property rights and privileges generally are
granted to those for purposes of affirmative exploitation, not to thwart the efforts of others in the
marketplace.
190
In addition, a registrant is eligible to file an incontestability affidavit (also known as a
Section 15 affidavit) after the registered mark has been in continuous use in commerce for at least
five consecutive years after the date of registration, though it need not be the five-year period just
following registration. See id. at 9394.
191
See BOUCHOUX, supra note 187, at 97 (describing why a trademark must be used and what
is considered use).
2015]
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131
Similarly, tomorrows preservation advocates initial application for

landmark designation for property ought to be accompanied by a
supplement known as a Restoration and Use Strategy and Timetablefor
shorthand, here, a RUST.192 The initial designation application must
explain, in addition to the data currently collected to evaluate the gravitas of
the nominated-as-historic property, sections describing:
(a) Means of implementation for any use (whether short- or long-term)
proposed to be made of the property, including the target audience/clients for the
proposed use, with market and demographic studies or public surveys supporting
193
the viability of the continuing or proposed use;
(b) Sustainability aspects of the property to be listed, including energy
efficiencies achievable from the existing structure and rehabilitation aspects of the
project that will increase efficiencies in utility usage and carbon footprint
reduction;
(c) The source(s) of funds to implement the proposed use(s) and sustainability
194
elements;
(d) The budget for implementation, including anticipated revenues from
visitation or use fees associated with interacting with the historic property; and
192
A timetable, while a part of the overall strategy, is called out separately in the acronym
because it is the most critical element of the strategy, especially in this Age of Immediacy, the
present time defined by one journalist as an impatient age of social media and instant
communication. David Bauder, Age of Immediacy Slowed by Results, DENVER POST (Nov. 7,
2012, 12:01:00 AM), http://www.denverpost.com/ci_21944489/age-immediacy-slowed-by-results.
193
It is expected that most of the applicants will respond either by addressing the existing use
(if the building or other structure is occupied) or, if unoccupied at the application date, that it will
become a monument or museum. This response ought to be viewed with some skepticism,
although this paper does not advocate the disqualification of a property merely due to this
proposed use. It is a fact, however, that except in regard to iconic historic properties, especially
those away from densely populated areas, museums are experiencing attendance declines, boding
ill for their financial support, in turn boding ill for their maintenance needed for preservation. See,
e.g., J. Freedom du Lac, Struggling to Attract Visitors, Historic Houses May Face Day of
Reckoning,
WASH.
POST,
Dec.
22,
2012,
available
at
http://www.washingtonpost.com/local/struggling-to-attract-visitors-historic-houses-may-face-dayof-reckoning/2012/12/22/349116b6-4b93-11e2-a6a6-aabac85e8036_story.html; see also Field
Horne, Op-Ed., No Need to Turn All Historic Structures into Museums, SCHENECTADY GAZETTE,
Aug.
30,
2005,
available
at
http://groups.yahoo.com/neo/groups/NYSCHIST/conversations/topics/136.
194
Bodies seeking non-profit (e.g., 501(c)) tax-exempt status are required by the Internal
Revenue Service to project a three-year budget on Form 1023, Part IX. See INTERNAL REVENUE
SERV., INSTRUCTIONS FOR FORM 1023, PART IX 1214 (June 2006), available at
http://www.irs.gov/pub/irs-pdf/i1023.pdf. Many non-profit applicants have not existed three years
at the date of their applications, and the Service knows that. Thus, the Services requirement either
is a complete waste of everyones time, or subtly invites the enterprises organizers to contemplate
if it will survive that long, inviting, in turn, thoughts on how to sustain a doubtlessly worthy
purpose.
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195
(e) A five-year timetable targeting when (1) the street smart aspect of the
property will be fully implemented and (2) the proposed initial use will be
implemented.
The advocates recitation as to these RUST elements should be scored,

and the score should be reported in a widely-distributed publication making
the rounds of historic preservation advocacy groups and involved
governmental officialdom, encouraging strategic planning in preservation
circles. This metric and method should be standard protocol among
designation bodies at each level of government described in Part III,
motivating such best practices for careful designation of structures,
districts, and other historic assets, in equal measure, as to their inherent
cultural or historical significance.196 Indeed, a uniform application packet
should be devised for nationwide use in initial designation and in
maintaining the designation status.
The applicants advocate must update the RUST every five years for
up to two cycles of additional reporting, including revising, on each
occasion, the five-year implementation timetable, unless implementation of
a use first has occurred, in which event any applicable timetable for
repurposing any affected historic building or structure should be submitted.
If the RUST plan cannot be implemented after three reporting cycles, the
assets designation as historic property should terminate. Perhaps a historic
designator could grant the advocate one final chance to submit a RUST
modification, but only if it substantially revises the nomination-expressed
use, indicating repurposing of the property for a viable use. This overhaul
plan would need to identify a five-year timetable during which repurposing
will occur, along with its implementation budget. Upon the lapse of that
reset five-year period, the historic designation attaching to the asset
would terminate if the repurposed site is not open to the public. Fifteen
195
By street smart, I mean augmenting the exterior appearance and physical security of the
historic assets, specifically landscaping, exterior securing of portals (doors and windows), and
maintenance of exterior walls and doors to support, not reduce, the aesthetic of the surrounding
neighborhood. Chain link fences with razor wire or boarded-up portals, used as a primary means
of securing a site or building and ignoring the aesthetic impact of these features, ought to earn
zero points in the assessment.
196
The National Trust for Historic Preservations Best Practices Manual contains Chapter 13,
captioned Sustainable Practices, that describes, among other things, the Trusts sustainability
program. See NATL TRUST FOR HISTORIC PRES., BEST PRACTICES FOR THE CARE OF
STRUCTURES AND LANDSCAPES AT NATIONAL TRUST HISTORIC SITES 79124 (2010), available
at http://barbaracampagna.com/wp-content/pdfs/Best-Practices-Manual_Feb%202010.pdf.
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133
years to make a historically-designated property useful and sustainable is

not medieval, considering that crowdfunding, crowdsourcing, and abundant
free consultation for reuse of abandoned buildings and sites exist.197
Sensible conclusions by the landmark-designating body must include that
the listed historic asset is not sufficiently significant or unique to merit
landmark status, may be beyond rescue for any utility, or simply is not a
point of civic pride according to resident and philanthropy perceptions.
B. Restoring Historic Assets Harmoniously with Sustainability Needs
Historic preservation regulations for multiple story buildings must
permit solar technology installations on rooftops and, where invisible, other
portions of structures. Faade easements are purposeful for a viewer of
walls and visible roof edges of an historic building. Faade easements
should never address aerial views of a property; few persons fly slowly over
designated parcels to observe the rooftops of these buildings and they
cannot see rooftops more than one story high. Tall buildings burden the
power grid more than single story structures,198 so they should offset that
burden in a relatively unobtrusive manner by employing solar collector
technologies. Conserving non-renewable resources is as meritorious a virtue
as is conserving historic assets and little is lost by permitting taller historic
assets to self- heat and cool if the basic appearance of the faade from the
ground is not compromised.199 In this matter of solar self-sufficiency,
Californias Solar Rights Act200 offers a suitable rule: if proposed
197
See, e.g., N.Y. STATE DEPT STATE, GUIDEBOOK: OPPORTUNITIES WAITING TO HAPPEN:
REDEVELOPING ABANDONED BUILDINGS AND SITES TO REVITALIZE COMMUNITIES (2004),
available at http://www.dos.ny.gov/opd/programs/pdfs/Guidebooks/ab/AbandonedBuildings.pdf.
198
See, e.g., Colleen Long, New York City office towers use ice to keep cool, ease burden on
citys
power
grid,
U-T
SAN
DIEGO
(July
24,
2007,
12:19
AM),
http://legacy.utsandiego.com/news/science/20070724-0019-icecooling.html.
199
See, e.g., Kuntz, supra note 108, at 33435 (stating how Washington State located solar
panels on the roof of its capitol buildings fifth floor, maintaining the beauty of the exterior). In
the same vein, the owners of historically designated assets ought to be permitted to resurface
facades with coatings that do not detract architecturally and contain nano-particulates that absorb
and transfer solar energy for heating and cooling purposes. See, e.g., Timon Singh, Rice
Universitys Carbon Nanotube Paint Turns Any Surface into a Solar Battery, INHABITAT (Jun. 29,
2012), http://inhabitat.com/rice-universitys-carbon-nanotube-paint-turns-any-surface-into-a-solarbattery/.
200
See CAL. HEALTH & SAFETY CODE 17959.1 (West 2009); see also CAL. GOVT CODE
65850.5(a), 6647301, & 66475.3 (West 2008) (Section 65850.5(a) stating, in relevant part, that
[i]t is the intent of the Legislature that local agencies not adopt ordinances that create
unreasonable barriers to the installation of solar energy systems, including, but not limited to,
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community restrictions increase the cost of an HVAC system or decrease its

potential performance, prohibiting solar energy systems for historic
structures ought to be repudiated as unreasonable,201 so long as the
collectors are mounted to match the roof slope and do not rise more than a
few inches from the roofs surface.202 For the future, exterior coatings with
solar collection properties (such as imbedded nanocrystals)203 that do not
impact (to the average observer) the appearance of the historic features
should be considered as well, as should solar shingles made to resemble the
buildings theme.204
Self- heating and cooling are imperatives in historic assets
sustainability, because modern technologies offer the only sensible ways to
control costly and unwanted air exchange through window frames. General
economic polemics on preserving original windows versus replacing them
with efficient but inauthentic windows achieve little, mainly because it is
seldom that one knows in advance how the quality and ultimate appearance
of replacement window materials, proposed by the historic assets owner,
will affect the designated asset.205 Original fenestration, though not usually
design review for aesthetic purposes, and not unreasonably restrict the ability of homeowners and
agricultural and business concerns to install solar energy systems). Essentially any requirement
that solar system panels be invisible to persons atop a building or flying overhead will be
unreasonable under this scheme, although a requirement that they be invisible to persons upon the
ground peering at the roofs visible edges seems reasonable.
201
See NORTHAMPTON, MASS., CODE 195-5(A)(14) (2011) (stating that rooftop solar panel
installation is exempt from Historic District Commission review).
202
See HISTORIC DIST. COMMN, OFFICE OF PLANNING & DEV. & PIONEER VALLEY
PLANNING COMMN, ELM STREET HISTORIC DISTRICT DESIGN STANDARDS 38 (2010), available
at http://www.northamptonma.gov/DocumentCenter/View/818; see also Supplemental standard
(d)(3)(i) to N.J. ADMIN. CODE 19:31C-3.8, 45 N.J. Reg. 256(a) 59 (2013). The rules were
promulgated by the Fort Monmouth Economic Revitalization Authority for a former Army post
closed
Sept.,
2011.
See
Overview,
FORT
MONMOUTH
REDEVELOPMENT,
http://www.fortmonmouthredevelopment.com/index.aspx (last visited Sept. 30, 2014).
203
See, e.g., Patrick J. Kiger, Sun Plus Nanotechnology: Can Solar Energy Get Bigger by
Thinking
Small?,
NATL
GEOGRAPHIC,
Apr.
28,
2013,
available
at
http://news.nationalgeographic.com/news/energy/2013/04/130429-nanotechnology-solar-energyefficiency/.
204
See, e.g., Singh, supra note 199; Gemeda Beker, NREL Uses Cornings Flexible Willow
Glass to Develop Cheap, Efficient Solar Shingles, INHABITAT (Aug. 9, 2013, 2:00 PM),
http://inhabitat.com/nrel-uses-flexible-corning-willow-glass-to-develop-cheap-efficient-solarshingles/ (new [Corning] Willow Glass solar cells are flexible, thin, and durable enough to be
installed directly on rooftops as solar shingles.). But see NATL ALLIANCE OF PRES. COMMNS,
SAMPLE GUIDELINES FOR SOLAR SYSTEMS IN HISTORIC DISTRICTS 4 (2009) (Solar shingles
laminates, glazing, or similar materials should not replace original or historic materials; no
explanation for this outright discouragement, however, is offered).
205
See Jennie G. Alkire, Replacement Windows in Historic Houses: A Study of the College
2015]
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135
a majority of an entire walls fabric, contributes significantly to the historic

buildings authenticity. From the perspective of those interested in energy
efficiency, however, those windows are not suitable.206 Thus, realizing
energy savings through windowpane and sash replacement presents a
nightmare for local preservation commissions compared to the low visual
impact of solar technology rooftop- or ground-mounted installations on
ordinary vertical improvements. The optimal approach to maintaining
respect for the historic context while achieving sustainability can be found
in those simple design guidelines for historic properties promulgated by the
City of Richmond, Virginia: solar panel rooftop placement should (a) not
require removing historic roofing material visible from the public right of
way, (b) be minimally visible (though it need not be invisible) from that
right of way,207 (c) not alter roofing configurations like dormers and
chimneys, and (d) be installed by a method that is reversible.208
C. Adaptively Reusing Historic Assets in Physical Crisis
Preservation ordinances must not so hobble attempts at reuse or
redevelopment of historic assets so as to eliminate all incentives to proceed
when it is evident that there is no future in preserving an unused,
dilapidated landmark. Zoning code changes, such as adopting a Planned
Unit Development (PUD), overlay, or similar mixed-use zoning
designation for an historic assets lot, should induce redevelopment and
reuse that allow for productive repurposing while celebrating a landmarks
few remaining unique structural qualities.209 An illustration is located two
Hill Historic District in Greensboro, North Carolina 2 (Dec. 1, 2008) (unpublished M.S. thesis,
Univ. of N.C. at Greensboro); see generally ERIN MUSIOL ET AL., AM. PLANNING ASSN, SOLAR
BRIEFING PAPERS NO. 5: BALANCING SOLAR ENERGY USE WITH POTENTIAL COMPETING
INTERESTS
15
(2012)
available
at
https://www.planning.org/research/solar/briefingpapers/pdf/potentialcompetinginterests.pdf.
Fundamentally, even with computer simulation, no one accurately can predict how the public will
perceive new windows as an authentic replication of original historic building fenestration.
206
See Musiol & Kooles, supra note 205, at 12.
207
Design Guidelines for Solar Installations, NATL TRUST FOR HISTORIC PRES.,
http://www.preservationnation.org/information-center/sustainable-communities/buildings/solarpanels/design-guidelines-for-solar.html (last visited Sept. 30, 2014) ([W]ith the visibility of . . .
solar panels . . . minimized to the greatest extent possible.).
208
See DEPT OF PLANNING. & DEV. REVIEW, OLD & HISTORIC DISTRICTS OF RICHMOND,
VIRGINIA: HANDBOOK AND DESIGN REVIEW GUIDELINES 56 (2011), available at
http://www.richmondgov.com/CommissionArchitecturalReview/documents/Old_Historic_Dist.pd
f.
209
See, e.g., ST. PETERSBURG, FLA., CODE 16.30.020 (1992) (providing an overlay district);
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blocks south of First BC. Initially constructed in 1920 and rebuilt in 1928 of
concrete and hollow tile, the J.M. Walker Building, designed by architect
Lee Fitzhugh,210 was Phoenixs best Neo-Classic Revival Style structure
downtown. It was listed on the NRHP in 1985.211 J.C. Penney initially
occupied it for a department store until 1926, when it vacated the site for a
newer, two story structure.212 The building was remodeled for occupancy by
The Central Arizona Light & Power Company, the leading electric utility in
the state, until the 1940s; afterward, it was used as a furniture store and a
labor union office.213 In 1959, the city purchased the Walker building but
made no public use of it.214 It now houses a sandwich shop on its first floor
and the local American Institute of Architects chapter office on its second
floor.215 For repurposing the building in 2001, the columnar portions of the
faade were retained, although the roof above the facade was replaced
GREENWICH, CONN., MUN. CODE 6-109 (1988) (establishing an overlay zone encouraging the
adaptive re-use of buildings of historic value and seeking input from the citys Historic District
Commission on appropriate changes to properties in this overlay district; it does not establish an
historic district). The city of Chandler, Arizona, aided by a consultant, is reviewing city zoning
and development area plans policies to create an adaptive building reuse program, aiding
developers and other owners to quickly and cost-effectively transform buildings into
commercial uses. See Michelle Mitchell, Chandler Hires Consultant to Help Find New Uses for
Aging
Buildings,
ARIZ.
REPUBLIC
(Feb.
24,
2014,
1:06
PM),
http://www.azcentral.com/community/chandler/articles/20140214chandler-hires-consultant-helpfind-new-uses-old-buildings.html.
210
This is the same Lee Mason Fitzhugh of Fitzhugh & Byron who aided in designing First
BC. Plans sheets for the 1920 and 1928 buildings are available from the Phoenix Museum of
History. See Store Building for J. W. Walker, 1920 (300 or 302 W. Washington); and Store &
Office Building for J. W. Walker, 1928 (30 N. 3rd Avenue), DIGITAL PUB. LIBRARY OF AM.,
http://dp.la/item/26501787c1515ca72624a650f5feb7e1 (last visited Sept. 30, 2014).
211
NATL PARK SERV., NATL TRUST FOR HISTORIC PRES., NATIONAL REGISTER OF
HISTORIC
PLACES
1966
TO
1994,
at
30
(1994),
available
at
https://archive.org/details/nationalregister00nati.
212
See JUNIOR LEAGUE OF PHOENIX, INC., HISTORIC PHOENIX COMMERCIAL PROPERTIES
SURVEY AND NOMINATION TO THE NATIONAL REGISTER OF HISTORIC PLACES 56 (1984).
213
J.W. Walker/Central Arizona Light & Power Building, THE HISTORICAL MARKET
DATABASE (Feb. 17, 2010), http://www.hmdb.org/marker.asp?marker=27628. A photograph of
the Walker Building, taken after possession was assumed by the City of Phoenix (which installed
a wall sign Municipal Bldg. Annex) but before restoration, is available at http://vintagephoenix.blogspot.com/2013/09/the-jm-walker-building.html. The photograph displays the
buildings extensive pilasters, cornices and dentils.
214
See id.
215
See Jack Fitzpatrick, Downtown Dining: Sticklers, DOWNTOWN DEVIL (Mar. 13, 2012),
http://downtowndevil.com/2012/03/13/24143/downtown-dining-sticklers/;
Mike
Padgett,
Canalscape Design Competition Heads Arizona Architects March Calendar,
ARIZONANOTEBOOK (Mar. 1, 2009), http://arizonanotebook.com/canalscape-design-competitionheads-arizona-architects-march-calendar.
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137
together with the walls, which now are glass panels.216 The original
structure is well-modified: Stately Corinthian pilasters greet the traffic of
Washington Street, framed by intricate cornice brackets with carefully
carved dentilsdetails so precise in Neo-Colonial-style buildings.217
What remains of the columns and the filigree work in the alabaster reminds
the viewer that the Walker building once was grand, a statement of
monumental architecture. Refurbishing the building affords the public a
glimpse of lost craftsmanship, an unlikely opportunity had the building not
been repurposed. Well-maintained and frequently patronized, the Walker
Building today makes a qualitatively different contribution to downtowns
livability from First BCs legacy to date. Which structure addresses a
subconscious need for sustainable memories?
A designated property in crisis must be released from the NRHP or
other registry to permit refurbishment to proceed, unless an overlay district
or zoning adjustment process allows restoration and repurposing. In the case
of federal designation, a new registry category called heritage repurposed
would be appropriate. To attain this new status, the preservation proposal
must be certified in three related respects. First, a qualified consultant must
certify that the improvements have insufficient structural integrity to
maintain its original faades at a commercially reasonable cost.218 Second,
the owner must certify that there are no ready, commercially reasonable
funding sources available for restoration, and minimal public demand exists
to maintain the property with its original structural faades.219 The third
certification offers a plan for (a) adaptive reuse of the structures, (b)
preservation of some unique character by rescuing intact those features that
capture the historical architectural statement or essential heritage elements,
and (c) a timetable within which work will be done to save these elements.
If the registry keepers find these certifications sufficient, there is no reason
to penalize the owner by denying him or her all tax credits, such as
accelerated depreciation, resulting from genuine efforts to preserve historic
assets in crisisso long as an adaptive reuse is implemented by a deadline
evidencing good faith intentions to retain structures instead of tax benefits.
216
J. W. Walker/Central Arizona Light & Power Building Image, WAYMARKING,

http://www.waymarking.com/gallery/image.aspx?f=1&guid=7bc99198-c0f2-4552-8c3731bb07535d7d (last visited Oct. 1, 2014).
217
From the Arizona Room, 10-30 N. 3rd Ave. J.M. Walker Building, DOWNTOWN PHX. J.
(Mar. 9, 2011), http://www.downtownphoenixjournal.com/tag/burton-barr-central-library/page/4/.
218
Cf. ST. PETERSBURG, FLA., CODE 16.30.020 (1992) (taking into account the cost of
exterior alterations for conversions in an overlay district).
219
Cf. id. at 16.30.020.
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For adaptive reuse of debilitated historic assets to thrive, zoning code

changes must liberalize required minimum setbacks, maximum lot
coverage, and minimum parking requirements,220 so long as, in the latter
case, transit nodes are nearby (e.g., the J.M. Walker building lot contains no
on-premises parking). Cities can promote incentives in reuse projects plans
review stage, such as by adopting the International Existing Building Code
(IEBC)221 or providing for fast-track permitting. The IEBC allows
developers who reuse a building to be subject to existing building codes of
an earlier time, rather than those codes in effect for new construction.222
With sensible policies in place, the marketplace will decide what merits
adaptive reuse investment.223
D. Acknowledging Preservation as Part of a Sustainable City Development
Strategy
Scant room in local government growth policies endorsing livability
and sustainability exists for a mindset that historic assets preservation must
operate independently from community planning and zoning.224 Irelands
Department of Arts, Heritage and the Gaeltacht225 has summarized this well:
[T]he protection and forward management of the architectural heritage of an area
should not be seen just as an end in itself. It should also be viewed as a foundation
for giving a truly distinctive sense of place and identity to our cities, towns and
villages. . . . [S]uccessful development plan policies for the built heritage are those
which have been integrated into the broader planning context and sustainable
220
Cf. id. at 16.30.020.5B (requiring a certain amount of parking that will not harm the
historic resource, and allowing parking alternatives so as to protect the actual historic property).
221
See INTL CODE COUNCIL, INTERNATIONAL EXISTING BUILDING CODE (2012), available
at http://publicecodes.cyberregs.com/icod/iebc/2012/.
222
See id. at vii.
223
See Sarah Schindler, The Future of Abandoned Big Box Stores: Legal Solutions to the
Legacies of Poor Planning Decisions, 83 U. COLO. L. REV. 471, 52930 (2012).
224
See DEPT.OF ARTS, HERITAGE & THE GAELTACHT, SHAPING THE FUTURE: CASE STUDIES
IN ADAPTATION AND REUSE IN HISTORIC URBAN ENVIRONMENTS 23 (2012), available at
http://www.ahg.gov.ie/en/Publications/HeritagePublications/ArchitecturalPolicyPublications/Shap
ing%20The%20Future%20%20Case%20Studies%20in%20Adaptation%20and%20Reuse%20in%20Historic%20Urban%20E
nvironments.pdf.
225
Gaeltacht refers to the indigenous Irish language and associated cultural features derived
from the Celtic peoples, which persist in a few Irish communities. See darsNa Gaeltachta, What
is
the
Gaeltacht?
darsNa
Gaeltachta,
YOUTUBE
(Apr.
24,
2012),
https://www.youtube.com/watch?v=liYWT7Ip0J4.
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139
development of an area.226
Modern municipal planning requires heritage preservation to be

integrated into an organic system of managed growth, as it has been in the
European Union since the Venice Charter of 1964.227 While the adaptive
reuse of truly historic buildings is vital to cultural and environmental
improvement, existing building stock alone can never [sufficiently]
accommodate . . . needs of the evolving business or [residence markets],
particularly in light of rapid technological and social shifts.228 Targeted
new development, especially in a critical mass of density, remains critical
to the rebirth of neighborhoods and the vitality of urban economies.229
American central business districts nationwide, typically, are
architectural anachronisms in need of revitalization through adaptive
reuse.230 Office spaces constructed after World War II are now substandard,
featuring low ceilings, byzantine structural grids, and wasteful [HVAC]
systems that are energy-inefficient and offer evidence of sick building
syndrome.231 Public policy encouraging redevelopment of this building
stock is critically important if American cities will remain competitive.232
Enlightened, adaptive reuse policy statements affecting historic assets
treatment must clarify each urban areas comprehensive (or general)
planning goals. For example, the City of Melbourne, Victoria, has
committed in its Heritage Strategy 2013 to endorse adaptive reuse to
maximize heritage districts and historic properties potential.233 This
226
DEPT. OF ARTS, HERITAGE & THE GAELTACHT, supra note 224, at 23.
See INTL COUNCIL ON MONUMENTS AND SITE, INTERNATIONAL CHARTER FOR THE
CONSERVATION AND RESTORATION OF MONUMENTS AND SITES (THE VENICE CHARTER 1964)
(1964), available at http://www.icomos.org/charters/venice_e.pdf.
228
A COUNTRY OF CITIES, supra note 28, at 137.
229
Id.
230
Id.
231
Id; see also JAGJIT SINGH, The Built Environment of Fungiand the Development, in
BUILDING MYCOLOGY: MANAGEMENT OF DECAY AND HEALTH IN BUILDINGS 1, 1 (Dr. Jagjit
Singh & Jagjit Singh eds., 1994); Langston, supra note 151151, at 23 (cataloging types of
obsolescence).
232
See ALLISON & PETERS, supra note156, at 175 (arguing that LEED standards should be
adjusted to replace the current point system, with one considering a buildings embodied energy,
to encourage more preservation of existing older buildings). Allison and Peters observe that
sustainable communities advocates goals are directly in line with the goals of many historic
preservationists, but that sustainable communities groups focus on new green architectural
practices and technologies in building new buildings instead of retrofitting historic assets. See id.
at 16667.
233
Reference Action 2.8 of the Implementation Plan regarding principles for adaptation, reuse and creative interpretation in updating policies for management of historic assets in the City,
227
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commitment imbeds repurposing old structures as a keystone component of

an overarching sustainable development strategy. A central feature in
Melbournes action plan is incorporating principles for adaptation, re-use
and creative interpretation234 in the review of heritage assets in highgrowth and urban renewal neighborhoods as well as in the mixed use areas
of the city.235 Consideration of appropriate principles is a first priority
action in that citys implementation plan for its heritage strategy.236 It
should have like priority in Americas cities.
E. Enabling Public-Private Partnerships under Redevelopment Agreements
First BC has no champion in the public sector, unless one applauds the
City of Phoenix for refraining from ordering its demolition. No argument is
advanced here that taxpayer dollars ought to be expended for resurrecting a
ruin, unless an old property, by acclamation, is deemed a truly remarkable
expression of American culture or is iconic in some other respect. In
adaptive reuse circles, more concentration should be focused on partnering
with the private sector to restore historic structures to enhance community
growth and sustainability.237 Concerns that the development community will
which action will commence in 2014. CITY OF MELBOURNE, MELBOURNE HERITAGE STRATEGY
2013,
at
5,
18,
28
(2013),
available
at
http://www.melbourne.vic.gov.au/BuildingandPlanning/Planning/heritageplanning/Pages/Heritage
Strategy.aspx. This heritage plan acknowledges that recent adaptation and reuse of commercial
buildings reflects the changing economic structure of the city. Id. at 12.
234
Id. at 5.
235
Id. at 18. The creative interpretation concept is described in Stephen Brown et al.,
Heritage as Springboard for Creative Enterprise 861 (2011) (unpublished paper, ICOMOS Gen.
Assembly,
Paris,
France),
available
at
http://openarchive.icomos.org/1300/1/IV-2Article10_Brown_Snelgrove_Veale.pdf ([S]ignificant heritage places . . . can be developed and
presented to satisfy conservation objectives, to shape new forms of cultural identity and stimulate
economic growth.). The notion, overall, is to relinquish our privileged role as experts to one of
brokerage; facilitating linkages with creative industries and acknowledging that heritage can
deliver economically beneficial outcomes in addition to worthy preservation goals. See id. at 869.
236
See CITY OF MELBOURNE, supra note233, at 28.
237
In a questionnaire circulated to 564 citizens in preparing the current North Carolina
Comprehensive Historic Preservation Plan, one questionWhat are the top three ways in which
your community could better incorporate historic preservation into land-use planning?was
accompanied by nine alternative response choices. Public-private partnerships received the
second largest number of votes. See STATE OF N.C., 2013-2022 STATE HISTORIC PRESERVATION
PLAN: LEGACYA GIFT FROM THE PAST FOR A BETTER TOMORROW 57 (2013), available at
http://www.hpo.ncdcr.gov/NorthCarolina_2013-2022_HistoricPreservationPlan.pdf. For a primer
on rehabilitation tax credits under Section 47 of the Internal Revenue Code, and the latest Revenue
Procedure establishing a safe harbor for allocation of tax credits among partnership members
engaging in rehabilitation work for certain income-producing historic buildings, see Wilson
2015]
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141
exploit circumstances of financial shortfall can be mitigated by pairing up

commercial developers with non-profits such as the Treasury Historical
Association, organized to restore architecturally significant spaces with
special resonance to its members.238 Federal government agencies endorse
adaptive reuse of buildings for private purposes; under Executive Order
13006, federal agencies emphasize reuse of city-center historic buildings,239
while Executive Order 13287 mandates federal government agencies
partnering with the private sector in repurposing historic properties to
promote local economic development and enhanced productive use of
public building stock.240
Land use development agreements create public-private partnerships,
causing particular parcels of land to be placed in service in some
manner,241 generally benefitting the community while potentially profiting
Sonsini Goodrich & Rosati, IRS Publishes Safe Harbor for Monetizing Certain Tax Credits,
WSGR
(Jan.
7,
2014),
http://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralertrehabilitation-tax-credits.htm.
238
See U.S. GEN. SERVS. ADMIN., PUB. BLDGS. SERV., HELD IN PUBLIC TRUST: PBS
STRATEGY
FOR
USING
HISTORIC
BUILDINGS
26
(1999),
available
at
http://www.gsa.gov/graphics/pbs/HIPT.pdf. The PBS has undertaken to work hand-in-hand with
organizations and agencies across the country to ensure livable communities . . . . and to use
historic buildings imaginatively and sensibly . . . to ensure that historic buildings remain a vital
part of our inventory and day to day business. Id. at 1.
239
See U.S. GEN. SERVS. ADMIN., PUB. BLDGS. SERV., EXTENDING THE LEGACY: GSA
HISTORIC
BUILDING
STEWARDSHIP
13,
3473
(2004),
available
at
http://www.gsa.gov/graphics/pbs/Stewardship2004.pdf (outlining GSAs most imaginative
examples of commercial building reuse and its disposal of properties, so they might be returned to
more appropriate community uses).
240
See Exec. Order No. 13,287, 68 Fed. Reg. 10,635 (Mar. 3, 2003) (stating agencies shall
examine policies, procedures, and capabilities to ensure that its actions encourage, support, and
foster public-private initiatives and investment in the use, reuse, and rehabilitation of historic
properties, to the extent such support is not inconsistent with other provisions of law . . . . The
underlying purpose is to promote local economic development and vitality through the use of
historic properties in a manner that contributes to the long-term preservation and productive use of
those properties.); see also U.S. GEN. SERVS. ADMIN., supra note 239, at 1819.
241
The developer might covenant to perform rehabilitation work on an historic property that
would permit the adaptive reuse of structures for a purpose enhancing the vitality of an urban
center in redevelopment, in return for a communitys modifying land use regulations to
accommodate the adaptive reuse. See, e.g., ARIZ. REV. STAT. ANN. 9-500.05(H)(1)(e) (2013)
(contemplating [p]rovisions for preservation and restoration of historic structures); INSTITUTE
FOR LOCAL SELF GOVT, DEVELOPMENT AGREEMENT MANUAL: COLLABORATION IN PURSUIT OF
COMMUNITY INTERESTS 1123 (2002), available at http://www.ca-ilg.org/sites/main/files/fileattachments/resources__FinalDevAgreement4-5-02.pdf; Lynne B. Sagalyn, Public-Private
Engagement: Promise and Practice, in PLANNING IDEAS THAT MATTER: LIVABILITY,
TERRITORIALITY, GOVERNANCE, AND REFLECTIVE PRACTICE 233, 23355 (Bishwapriya Sanyal
et al. eds., 2012); Michael N. Widener, Curbside Service: Community Land Use Catalysts to
142
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[Vol. 32:nnn
a private person though development fees or rent and other revenue

generation.242 In many jurisdictions, development agreements themselves
become ordinances243 and, therefore, their provisions supersede existing use
regulations in the citys zoning code or bylaws to the extent of any
inconsistency.244 Development agreements address concerns among
developers, citizens, and city governments about the potentially adverse
impacts of projects to be constructed.245
In 2014, Bangor, Maine signed a development agreement with Bangor
Housing Development Corporation (BHDC) to re-develop the city-owned
portion of the historic Freese Building for commercial space on the first
floor, and middle income apartments on the second and third floors.246
Freeses opened on Bangors Main Street in 1892 and expanded until it
became the largest department store in Maine.247 Once referred to as Fifth
Avenue in Maine, Freeses closed in 1985.248 Today, the Freese building
holds seventy-three residential units and the Maine Discovery Museum.249
The development agreement requires BHDC to invest a minimum of one
million dollars in construction costs, agree to a construction progress
schedule, and install all needed equipment and furnishings in the newlydeveloped commercial space.250 The forthcoming improvements
demonstrate opportunities for increased urban center livability when
communities like Bangor take proactive and collaborative approaches to
redeveloping their historic downtown assets.
Neighborhood Flowering During Transit Installations, 45 URB. L. 407, 441 (2013).
242
See INSTITUTE. FOR LOCAL GOVT, UNDERSTANDING THE BASICS OF LAND USE AND
PLANNING: GUIDE TO LOCAL PLANNING 3738 (2010), available at http://www.cailg.org/sites/main/files/file-attachments/2010_-_landuseplanning.pdf.
243
See INSTITUTE FOR LOCAL SELF GOVT, supra note 242, at 11.
244
Id.
245
See id. at 28.
246
CITY OF BANGOR CENT. SERVS., CITY COUNCIL AGENDA FOR DECEMBER 9, 2013 (2013),
available
at
http://www.bangormaine.gov/filestorage/1538/1540/1542/1560/1740/Council_120913.pdf.
247
Downtown
History,
DOWNTOWN
BANGOR,
http://www.downtownbangor.com/index.php?id=2&sub_id=113 (last visited Oct. 1, 2014); NATL
TRUST FOR HISTORIC PRES., REBUILDING COMMUNITY: A BEST PRACTICES TOOLKIT FOR
HISTORIC PRESERVATION AND REDEVELOPMENT 4243 (2002).
248
Downtown History, supra note 248; see Nick McCrea, 3 floors of Bangors Freeses
Building to be Converted into Apartments, Commercial Space, BDN MAINE BUSINESS BLOG Sept.
14, 2014, at 6:17 a.m. (project that began construction on September 9, 2014, will feature first
floor storefronts along Water Street, while second and third floors will be converted into 10
apartment units.
249
Id.
250
See CITY OF BANGOR CENT. SERVS., supra note246.
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143
Development agreements may grant a non-profit, independent, historic

preservation advocate certain watchdog prerogatives, such as the right to
inspect redevelopment progress of a designated asset and to enforce (similar
to enforcement of a conservation easements covenants) a developers
covenants addressing the maintenance of certain historic architectural
features of a project.251 Development agreements containing reasonably
strict enforcement provisions and affirmative developer commitments to
maintain iconic or historical elements of edifices may mitigate preservation
advocates doubts about public body-monitoring of the work of the
redevelopments private parties.
VII. CHARGE TO PRESERVATIONISTS AND URBAN CENTER STAKEHOLDERS
As an urban regeneration tool, historic designation requires relatively
little initial public investment, while affording some protection from
detrimental changes to landmark assets, incrementally achieving variety,
place-making, or other community objectives.252 But designation of an
historic asset for preservation cures few urban center revitalization
challenges, nor shelters communities from unintended and negative
consequences253 like increased blight and delayed urban transit synergies.254
Preservation demands more than protection of landmarks; in urban cores, it
must take into account the larger significance of community cohesion and
livability for all citizens.
Consequently, impassioned advocates for historic preservation cannot
merely cause registration of a property and then witness, as a bystander, the
fate of an historic edifice or district subjected to the treacheries of economic
and social trends.255 Stewardship issues will continue without new
251
See Alejandro E. Camacho, Community Benefits Agreements: A Symptom, Not the
Antidote, of Bilateral Land Use Regulation, 78 BROOK. L. REV. 355, 380 (2013). Professor
Camacho suggests that the affected stakeholders could be assigned key monitoring roles as to
those development impacts that will affect them most directly. Id. (footnote omitted). Such a
watchdog enterprise must have a legitimate interest in the agreements project above merely
arresting change; a means of gauging the watchdogs ultimate intentions would be its exposure to
liability for other development agreement parties legal fees incurred in defending frivolous
enforcement actions.
252
See Ijla et al., supra note 50, at 279.
253
Id. at 278.
254
Indeed, some argue that planners and city officials, current members of society, lack the
acumen to know what projects will be lasting and timeless, and, hence, worthy of designating for
preservation. Schindler, supra note223, at 51516.
255
See, e.g., Tomiko Meeks, Freedmens Town, Texas: A Lesson in the Failure of Historic
Preservation,
8
HOUSTON
HIST.
42,
4244
(2011),
available
at
144
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obligations for advocates and improved development opportunities for

sensitive and sustainable projects256 embedded in landmark-designation
processes nationwide. Without such constraints and opportunities, more
listed structures in urban centers ultimately will be lost because they are
simply too decrepit or, in hindsight, too marginal historically257 or too costineffective to rehabilitate.258 A communitys livability is diminished when
historic properties or sites are desecrated through fire or flood, lack of
proper conservation techniques, or simply are neglected.259 Ruined
landmarks pose health and safety hazards for urban centers, contributing
nothing to their revitalization. Nor does a mothballed260 historic building or
https://houstonhistorymagazine.org/2011/04/freedmans-town-a-lesson-in-the-failure-of-historicpreservation/ (describing the failure of preserving the historical value and architectural integrity of
Freedmens Town enclave in Houston).
256
See Tyler Tully, Attacking Urban Decay: Take Back Neglected Property, THE RIVARD
REPORT (July 25, 2013, 5:00 PM), http://therivardreport.com/attacking-urban-decay-take-backneglected-property/ (proposal to allow development of vacant lots or neglected improved parcels
within San Antonios historic neighborhoods, that are not suitably maintained and have real
property tax arrearages, by city confiscation in satisfaction of those arrearages).
257
Some believe that all true landmark-worthy sites not previously destroyed have already
been listed. See, e.g., CIVICVISIONS LP, supra note 22, at Executive Summary. Since time and
architectural styles are not frozen, this is a logical fallacy; post-modern architectural period
structures are now old enough to be considered for historic designation. See TEDx Talks,
Historical PreservationA Radical Conservative Liberal Concept: Wayne Wood at
TEDxRiversideAvondale, YOUTUBE (Jan. 22, 2013), https://www.youtube.com/watch?v=DbSvL7VZdo; Natl Bldg. Museum, D.C. Modern Preservation, YOUTUBE (Nov. 7, 2012),
https://www.youtube.com/watch?v=6YgfvFA295g.
258
Aikins, supra note 91, at 19. This fate awaits City Methodist Church (1925) in the downtown
historic district of Gary, Indiana. Abandoned for decades since its congregation left in 1975, and
now owned by the City of Gary, most of the church is about to be razed except for a few dramatic
architectural features to be stabilized. See Joseph S. Pete, 89-Year-Old Gary Church Turns into
Ruin
Gardens,
WASH.
TIMES,
December
6,
2014,
available
at
http://www.washingtontimes.com/news/2014/dec/6/89-year-old-gary-church-turns-into-ruingardens/. The church site will be converted to a ruins garden, a public park hosting weddings,
arts performances and other special events to be determined. See id. This outcome, while
arguably superior to no repurposing, was pragmatic, since prior owners (including Indiana
University-Northwest) did not pursue its redevelopment and its roof entirely collapsed in 2010,
dooming restoration of the improvements. See SOMETIMES INTERESTING BLOG, City United
Methodist Church of Gary, Indiana, Jun. 16, 2013, available at http://sometimesinteresting.com/2013/06/16/city-united-methodist-church-of-gary-indiana/.
259
See Schindler, supra note223, at 497 (describing the perception that buildings in disrepair
create perception that the community is dangerous, resulting in people being less comfortable,
staying inside, and disconnecting from their neighbors).
260
Mothballing is discussed by the National Park Service in its Preservation Brief 31. See
generally SHARON C. PARK, NATL PARK SERV., PRESERVATION BRIEFS 31: MOTHBALLING
HISTORIC BUILDINGS (1993), available at http://www.nps.gov/tPS/How-TO-PREsERve/briefs/31mothballing.htm#mothballing. The author states: The steps discussed in this Brief can protect
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145
site advantage a community where an asset lingers, is poorly-utilized, or is

altogether abandoned. These problems are magnified in communities
becoming shrinking cities, coping with persistent population outmigration
coupled with loss of the employment base that spurred the original
growth.261
Demolition by neglect,262 where combined poor initial planning and
subsequent inaction compromise historical significance of assets and
revitalization of their neighborhoods, is not community-building. Episodes
of underutilized or marginally-maintained historic assets will be diminished
by thoughtful preliminary utility and sustainability analyses in initial
designation-advocacy processes. Project objectives must be documented
reflectively in the listing-application phase to maximize long-term project
utility and advocate support for an assets or districts sustainability.
Demanding ongoing accountability from stewards of historic assets,
whether NGOs, governmental entities, or private owners, for their current
and future conditions promotes adaptive reuse, enhancing urban center
quality of life.
buildings for periods of up to ten years, illustrating that the National Park Service recognizes the
obvious fact that a vacant historic building cannot survive indefinitely in a boarded-up
condition . . . . Id. at 1. The Park Service does not counsel on the fates of buildings mothballed
longer than a decade, a lacunae that also should be addressed in a revised series of regulations, for
the benefit of structures like First BC.
261
See Catherine J. LaCroix, Urban Agriculture and Other Green Uses: Remaking the
Shrinking City, 42 URB. LAW. 225, 22730 (2010); see generally Emilie C. Evans, Historic
Preservation in Shrinking Cities: Neighborhood Strategies for Buffalo and Cleveland (May 2011)
(unpublished M.S. thesis, Columbia Univ.), available at http://rightsizeplace.org/wpcontent/uploads/2013/05/Evans_Thesis2011.pdf.
262
Aikins, supra note 91, at 2324. By this phrase, I intend neglect not just of the historic
asset but also of the sustainability and urban renewal framesin combination, diminishing
livability.

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RENEWED ENERGY: SUSTAINABLE HISTORIC ASSETS AS

QUINNIPIAC LAW REVIE W

incorporating an auditorium with a stage.6 Its congregation relocated six

See NOMINATION FORM, supra note 1.

SUSTAINABLE HISTORIC ASSETS

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balanced with the protection of historic assets in delivering high-quality

SUSTAINABLE HISTORIC ASSETS

improvements to the quality of neighborhood life, while modestly satisfying

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landmark listing, however, for many owners of dated buildings, historic

SUSTAINABLE HISTORIC ASSETS

PRESERVATION REGISTRY PROGRAMS AFFECTING URBAN HISTORIC

A. Federal Engagement in Historic Preservation

See 16 U.S.C. 431433 (2012).

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making about future development.44

The NRHP is a broadly inclusive inventory of properties maintained

SUSTAINABLE HISTORIC ASSETS

tribal, and sometimes local government levels conduct research to identify

QUINNIPIAC LAW REVIE W

SUSTAINABLE HISTORIC ASSETS

Some local governments have successfully relied on broad grants of

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Local designation typically mandates that an owner obtain a

SUSTAINABLE HISTORIC ASSETS

easement.82 In the case of the former, the owner is prohibited from

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vires action by the government or a regulatory taking requiring just

SUSTAINABLE HISTORIC ASSETS

on sites associated with the Founding Fathers, worked primarily to save

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the 1890s, which advocated expression of a citys enduring civic and

SUSTAINABLE HISTORIC ASSETS

buildings to the maximum extent feasible,111 foreshadowing William

16 U.S.C. 470h-2 (2012).

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neighborhoods and is considered the guiding figure of revitalizationists.120

SUSTAINABLE HISTORIC ASSETS

Rehabilitation of existing buildings conserves the built environment instead

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assets while maintaining essential faade features of currently-designated

See Pela, supra note 4.

SUSTAINABLE HISTORIC ASSETS

rationale for preservation, which establishes a framework in which dwellers

See Rose, supra note 94, at 48894.

See id. at 160205.

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IV. ADAPTIVE REUSE AND ITS SUSTAINABILITY

SUSTAINABLE HISTORIC ASSETS

historic buildings enjoy two advantages in advancing preservation

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less salutary, however, in communities where population density targets are

SUSTAINABLE HISTORIC ASSETS

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Chain-store, mega-market shopping as the primary venue to buy ones

SUSTAINABLE HISTORIC ASSETS

sustainability solution, in short, is to repurpose the property, establishing a

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the sort of neighborhood vitality envisioned by Jane Jacobs.179 In

See JACOBS, supra note 24.

SUSTAINABLE HISTORIC ASSETS