Oregon Supreme Court case may alter landscape of historic preservation

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The Carman House, built in the mid-1850s, is the oldest house in Lake Oswego. The Oregon Supreme Court's decision about its fate will set a precedent about who can take a property off a local historic registry.

(Justin Runquist)

Preservationists say some 1,700 historic properties across six Portland neighborhoods - and countless others throughout Oregon - may not be protected from demolition without help from the Oregon Supreme Court.

Worries are mounting because of a recent Court of Appeals decision involving a historic property in Lake Oswego. Under the ruling, a property owner can overturn regulations to preserve buildings designated as historic if the designation was imposed by a local government.

Oregon's high court will hear the case in November, and a decision could follow in early 2016.

"It is a huge setback for, I think, the spirit of historic preservation in Oregon," warned attorney Carrie Richter, who represents Restore Oregon and the Architectural Heritage Center, two groups that joined the Lake Oswego fight.

But the attorney who challenged Lake Oswego's historic designation, on behalf of a Lake Oswego family, said local governments for too long have improperly placed restrictions on property owners in the name of preservation.

"They bear all the burden of this greater good," said lawyer Chris Koback. "And what do they get for that?"

At issue is a 1995 state law that allows "a property owner" to remove property from a historic registry if it was "imposed" by local government. The law applies only to local registries; properties listed on the National Register of Historic Places would be protected.

The crux: Should the law apply only to a property owner who owned the building and fought the designation when it was deemed historic, or is that right extended to subsequent owners? And whose responsibility is it - government's or the property owner's - to prove that a past owner consented or contested?

Those questions are playing out in Lake Oswego, where city officials in 1990 put an 1850s-era farmhouse on a local registry over the objections of the owners.

The same family, through a trust that was assigned ownership of the house, in 2013 fought the designation in hopes of developing the property.

Facing a lawsuit from the family, the Lake Oswego City Council lifted restrictions in 2014. But the Lake Oswego Preservation Society appealed to the state Land Use Board of Appeals, which reversed the city's decision on grounds that a subsequent owner - the trust - couldn't fight the designation.

In February, the Court of Appeals disagreed. It reversed the decision, writing that the law applied to any owner.

That ruling has Portland officials worried.

On Wednesday, the City Council voted 5-0 to join the battle. City leaders authorized attorneys to submit written arguments about why the law shouldn't apply to subsequent owners.

"This is a very important issue," Commissioner Amanda Fritz said. "It would make it really meaningless to have a historic designation if it could be taken off at any time."

No matter what happens, thousands of historic Portland properties will retain protections because they're recognized on the national registry. Among others, that means no changes for the Alphabet District in Northwest, Irvington in Northeast, or the Skidmore and Old Town Chinatown districts downtown.

At risk, officials say, are buildings in select North and Northeast Portland neighborhoods.

Many properties within designated conservation districts - Eliot, Mississippi Avenue, Russell Street, Kenton, Piedmont and Woodlawn - are subject to existing regulations that would be in jeopardy if the Court of Appeals interpretation stands.

Nicholas Starin, a city planner who handles historic preservation issues, said he wouldn't necessarily expect a rash of demolition permits - but it would open the door for developers.

"It's a big deal," he said. "It really does change the playing field."

The Lake Oswego case also raises unanswered questions for Portland and other jurisdictions - issues that may not be addressed by the Supreme Court ruling.

For instance, would a property owner have to prove that a previous owner fought a historic designation? Or would a local government have to prove that it provided notice before the designation went into effect?

"In many cases, we believe property owners were notified and given the opportunity to object," said Starin, adding that Portland began its historic designation process in the 1970s. "But it's unclear whether the records have been kept very well."

Koback countered that the burden clearly should fall on government to prove that past property owners were notified - and either acquiesced or consented - to historic designations.

"How unfair is that: You have to produce a dead person to say, 'I objected,'" Koback said of the challenge that would pose for many property owners.

In Koback's view, any property owner could seek removal of historic designations if a local government couldn't provide documentation.

Richter, a partner at Garvey Schubert Barer, said that would all but gut longstanding rules. She said it would allow investors to buy and demolish buildings, "taking advantage of market conditions under a statute" that wasn't intended for developers.

Koback, a partner at Hathaway Koback Connors, disagreed. He said some property owners might try it with success. But it's a myth that savvy real estate investors would suddenly snap up property and level buildings.

"It's not a sky-is-falling situation," he said.

-- Brad Schmidt

503-294-7628

@cityhallwatch

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