Morgantown, Summer 1997
In 1996, Downtown Morgantown achieved historic designation when the Morgantown Historic Landmarks Commission successfully placed it on the National Register of Historic Places, highlighting its significant historic character The area features numerous buildings that evoke the 1920s, a prosperous era for Morgantown's industry, marked by the arrival of twenty-four passenger trains daily This transformative decade brought more substantial changes than the previous one hundred and fifty years of the city's history.
Historic designation is crucial for protecting historic districts, as it enables property owners to access tax credits for property rehabilitation and fosters economic growth through tourism This designation highlights the significance of the area and requires collaboration among property owners to preserve its historic character; if over sixty-five percent of structures lose their historic integrity, the designation—and associated tax benefits—can be jeopardized In places like downtown Morgantown, which is influenced by the University community's seasonal economy, the actions of property owners can significantly affect one another's eligibility for tax credits Therefore, it is essential for property owners to consider the impact of their modifications on the overall historic integrity of the district.
In the Spring of 1997, WesBanco, headquartered in Wheeling, bought The
Interview with Barbara Rasmussen, President, Morgantown Historic Landmarks Commission (Nov 9, 1997).
2 WEST VIRGINIA UNIVERSITY PUBLIC HISTORY OPTION, MORGANTOWN BICENTENNIAL COMM'N, MORGANTOWN: A BICENTENNIAL HISTORY 7 (1985).
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA
The National Bank of West Virginia, a modest 1920s building featuring Depression-era commercial architecture, is located near Morgantown's Sadie Crowe mini-park in the historic district Throughout its history, the structure has served various purposes, including a Woolworth's store and a venue for religious services for the local Jewish community However, the new owners felt that the building did not sufficiently resemble a bank.
The proposed alterations to the historic bank facade include the removal of the glass entry, modifications to the windows, the addition of columnar decor, and the creation of a false parapet third level, all of which would significantly change its appearance and height Critics argue that these changes highlight a clear lack of architectural significance and aesthetics, suggesting that the original building has little worth preserving.
Civic organizations have voiced their concerns regarding the project, highlighting the need for careful planning and design to maintain the historical integrity of the area The State Historic Preservation Office in West Virginia noted that a thoughtful approach could align the facade with the region's character while adhering to rehabilitation guidelines Additionally, Main Street Morgantown, which focuses on revitalizing the downtown area, hired an architect who proposed an alternative rehabilitation plan aimed at preserving the building's character and stylistic elements.
7 Press Release, issued by Barbara Rasmussen, President, Morgantown Landmarks Commission, Morgantown, West Virginia (on file with Terri Cutright, Executive Director, Main Street Morgantown).
On March 19, 1997, Barton Loar, President of the Monongalia County Division at WesBanco, addressed two key figures: Bill MacDonald, Design Co-Chair of Main Street Morgantown, and Barbara Rasmussen, President of the Morgantown Historic Landmarks Commission These letters highlight the importance of collaboration in preserving Morgantown's historical integrity and promoting community development.
13 Letter from William Farrar, State Historic Preservation Office, West Virginia Division of Culture and History, to Ned George, CEO, WesBanco (Jun 11, 1997).
14 Letter from Michael Gioulis, Historic Preservation Consultant, to Terri Cutright, Executive Director, Main Street Morgantown (Jun 20, 1997).
The Morgantown Historic Landmarks Commission highlighted successful adaptive reuse projects by local property owners, including the restoration of a dry goods store into a bank and the conversion of a building that previously served as a post office and men's clothing store The Preservation Alliance of West Virginia, the state's largest private preservation organization, emphasized the economic benefits of protecting community heritage, citing Morgantown's rich history that includes three wars, an industrial revolution, and a respected university They asserted that absentee-owned businesses have a responsibility to support this economic resource Additionally, any alterations to structures within Morgantown's historic district could jeopardize the historic designation for the entire area, impacting approximately 125 property owners.
Historic structures listed on the National Register of Historic Places lack legal protection, as only local design review can safeguard them, a mechanism not yet adopted by many West Virginia cities, including Morgantown Consequently, WesBanco proceeded with its construction project in November, despite preservationist objections, permanently altering the historic facade of a contributing building in the downtown historic district This rehabilitation not only dismantled existing architectural features but also misleadingly elevated the structure to a three-story height, where no third story originally existed.
In the summer of 1997, downtown Morgantown experienced an incident that highlights a growing trend in West Virginia, where resource development often conflicts with preservation efforts However, it is possible to balance these two priorities This survey will explore the evolution of historic preservation, its economic advantages, the methods for safeguarding historic resources, and the programs and incentives available to support preservation initiatives.
20 Letter from Michael Gioulis, supra note 14.
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Development of Historic Preservation
To grasp the nuances of historic preservation law, one must consider the evolution of societal concern for safeguarding cultural resources A significant milestone in this movement is the Mount Vernon Ladies' Association, often recognized as a pioneering organization in the preservation of American heritage.
The historic preservation movement gained momentum in 1853 when Ann Pamela Cunningham aimed to protect Mount Vernon from developers and restore its appearance during George Washington's time In subsequent decades, various groups emerged to commemorate the events and figures of the American Revolution, with local historical societies purchasing historic homes By the turn of the century, several architects began publishing detailed works on Georgian and Federal-style houses, further contributing to the preservation efforts.
In 1906, Congress enacted the Antiquities Act, marking the first significant legislative effort to safeguard historic treasures This Act empowers the President to officially declare historic landmarks and structures, as well as other objects of historic interest, through public proclamation Additionally, it imposes penalties for individuals who damage, destroy, excavate, or unlawfully appropriate historic sites on public lands or federally controlled property.
As the automobile industry expanded in the 1920s, individual preservation efforts gained momentum, notably supported by influential figures like Henry Ford and John D Rockefeller, Jr., who invested their wealth into restoration initiatives Henry Ford established a historic area in Dearborn, Michigan, dedicated to preserving old buildings and promoting cultural heritage.
21 John C Waters, Master of Historic Preservation Programs: Flooding the Market or Filling a Niche?, HISTORIC PRESERVATION FORUM, NATIONAL TRUST FOR HISTORIC PRESERVATION, Spring
22 Charles B Hosmer, Jr., Preservation- A Historical Perspective, in CULTURAL RESOURCES MANAGEMENT 5, 5 (Ronald W Johnson, et al eds., 1987).
The West Virginia Law Review pays tribute to influential figures in American history, highlighting John D Rockefeller's decision to restore Williamsburg, Virginia to its colonial aesthetic To achieve this ambitious restoration project, he enlisted the expertise of consultants, architects, engineers, landscape architects, and archaeologists.
In the aftermath of the Great Depression, the Historic Sites Act of 1935 was enacted to establish a national policy aimed at preserving historic sites, buildings, and objects of significant national importance for public benefit This legislation centralized the planning and administration of historic preservation within the Department of the Interior, empowering the Secretary of the Interior to restore, reconstruct, and maintain these historic properties Additionally, the act allowed the Secretary to form agreements with state and local governments to safeguard and manage historic sites associated with public use The Secretary first utilized this authority in 1936 by recognizing the exceptional historical value of land in St Louis, Missouri, and initiating its acquisition.
38 See Bamidge v United States, 101 F.2d 295, 299 (8th Cir 1939) The court described the particular historic significance of the land:
It appears that on the property included in this project were situated the Spanish
Colonial office, where, during the administration of Thomas Jefferson, third
President of the United States, all of the first territory comprised in the Upper
On March 9, 1804, the Spanish Commandant in St Louis, Charles Dehault Delassus, officially transferred control of upper Louisiana to Captain Amos Stoddard of the United States Army, acting on behalf of France The following day, Captain Stoddard formally took possession of the Louisiana Purchase, raising the American flag to signify the transition of power from Spanish and French control to the United States.
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The Historic Sites Act initiated a National Survey of Historic Sites and Buildings, but the nation was not yet prepared for a comprehensive preservation program due to its focus on post-Depression economic recovery Despite this, local preservation efforts gained momentum, notably in Charleston, South Carolina, and New Orleans, Louisiana, where historic districts were preserved for the first time The Vieux Carre district in New Orleans generated $150 million annually from tourism, while Boston's Beacon Hill neighborhood saw property values triple between 1955 and 1962 due to its historic designation Additionally, Georgetown in Washington, D.C., was revitalized as a historic district, becoming one of the city's most fashionable and expensive areas.
Preservation efforts waned during World War II but saw a resurgence after the Korean War in the 1950s In 1949, the National Trust for Historic Preservation was established through a Congressional charter, leading to increased public awareness about the importance of protecting our national heritage.
The site, where Laclede and Chouteau founded the first civil government west of the Mississippi, has a rich historical significance marked by the waving of American flags over a twenty-four hour period It is the location where Lafayette was warmly welcomed, and where iconic trails such as Santa Fe and Oregon began Additionally, it served as the preparation ground for Lewis and Clark's exploratory journey and housed the Court House that adjudicated the landmark Dred Scott Case.
41 See Richard J Roddewig, Preparing a Historic Ordinance 2, (PLANNING ADVISORY
In response to a congressional mandate, the National Park Service initiated the National Survey of Historic Sites and Buildings, which listed registered National Historic Landmarks In 1965, a committee formed by mayors and members of the National Trust assessed the need for a comprehensive preservation program The following year, they published their findings in "With Heritage So Rich," leading to the establishment of the National Historic Preservation Act of 1966, which codified their recommendations for a legislative preservation program.
In the 1970s, preservation efforts surged nationally and locally, with the National Trust for Historic Preservation boosting its membership nearly tenfold following the 1966 Preservation Act This period saw a significant increase in legislation supporting historic preservation, including the Archeological and Historic Preservation Act of 1974, which enhanced the involvement of the archaeological community in preservation matters Additionally, in 1976, Congress introduced tax incentives to encourage private sector engagement in rehabilitation initiatives.
At the same time, preservation services within the Department of the Interior were united under the auspices of the Heritage Conservation and Recreation Service 5
Since the 1970s, there has been a significant increase in state planning and growth management laws, with historic preservation legislation emerging as a prominent topic of discussion A 1975 study by the National Trust for Historic Preservation identified 421 communities that had implemented local programs aimed at safeguarding their historic assets.
50 16 U.S.C § 470 (1994); See Brit Allan Storey, The Advisory Council on Historic Preservation: Its Role in the Developing American Preservation Program, in CULTURAL REsoURCES MANAGEMENT 21, 22 (Ronald W Johnson et al eds., 1987).
By 1983, the number of communities in West Virginia with historic preservation programs had more than doubled to around 1,000 A decade later, the National Park Service estimated that nearly 2,000 communities were actively engaged in promoting preservation objectives.
Since the passage of the National Historic Preservation Act in 1966, West Virginia has actively embraced historic preservation, enacting laws at state, county, and municipal levels This legislation not only administers national preservation regulations but also establishes a state historic preservation commission and empowers local governments to manage their historic properties effectively.
Economic Benefits of Historic Preservation
The Constitutional Basis for Historic Preservation
The constitutional basis for historic preservation was established in 1978.85
In 1978, the United States Supreme Court affirmed that safeguarding landmarks and historic districts serves a valid public purpose, establishing it as a legitimate function of government in the landmark case Penn Central Transportation Co v New York.
83 PRESERVATION ALLIANCE, supra note 60, at 1.
85 Penn Cent Transp Co v New York City, 438 U.S 104 (1978).
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The Penn Central Transportation Company sought to build a multistory office structure above Grand Central Terminal, which it owned However, the terminal is designated as a "landmark" under New York City's Landmarks Preservation Law, restricting such developments on the block it occupies.
Under the Landmarks Law, owners of designated landmarks must obtain approval from the Landmarks Preservation Commission for any exterior modifications The commission denied Penn Central's construction plans, citing concerns over the potential damage to the terminal's historic and aesthetic qualities In response, Penn Central filed a lawsuit, arguing that the city's actions constituted a "taking" of property without just compensation, violating the Fifth and Fourteenth Amendments Additionally, the transportation company contended that it was unjustly deprived of its property without due process, also in violation of the Fourteenth Amendment.
The court examined whether New York City's Landmarks Law restrictions on Penn Central's use of the terminal site amounted to a "taking" of property under the Fifth and Fourteenth Amendments In determining if a government action qualifies as a "taking," the Court emphasized the nature of the action involved.
Under the Landmarks Law, building owners seeking to modify a landmark site can apply to the Commission for various certificates, including a "certificate of no effect on architectural features" or a "certificate of appropriateness." The Commission grants a general certificate of appropriateness if the proposed changes do not compromise the landmark's aesthetic, historical, or architectural values Alternatively, a certificate based on insufficient return is issued if the owner cannot achieve a reasonable return on the property in its current condition This process includes safeguards to prevent significant economic hardship due to the landmark designation.
The West Virginia Law Review discusses the Court's rejection of Penn Central's claim that New York City's Landmarks Law constitutes a "taking" by targeting specific property owners The Court acknowledged the distinction between general historic-district regulations and the individual focus of the Landmarks Law, but concluded that such landmark laws are not discriminatory Instead, they represent a comprehensive strategy aimed at preserving historically and aesthetically significant structures throughout the city.
The Court affirmed that governments can implement laws that may negatively impact recognized economic values without being deemed a "taking," provided these laws serve a significant public purpose It concluded that New York City's aim to preserve historically and culturally significant structures aligns with permissible governmental objectives The Landmarks Law is deemed an appropriate method for achieving this goal, as it imposes specific restrictions on landmark properties while also ensuring that property owners receive a "reasonable return" on their investments.
The New York City Landmarks Law, with its well-structured provisions and available alternatives for Penn Central, significantly influenced the Court's decision The ordinance allows for judicial review at both the landmark designation and permit approval stages, ensuring fair application The Court noted that Penn Central's failure to pursue judicial review regarding the terminal's landmark designation and the denial of a certificate of no effect played a crucial role in their reasoning.
The survey of historic preservation in West Virginia highlights the systematic efforts of the state Landmarks Preservation Commission in identifying potential historic properties, resulting in the designation of over 400 landmarks and thirty-one historic districts under the comprehensive Landmarks Law This thorough approach influenced the Court's decision regarding Penn Central, which, after the denial of its certificate, failed to submit alternative plans for consideration.
The Court determined that the transportation company had several viable alternatives regarding the tax-exempt terminal, which remained suitable for both current and future uses Penn Central could continue utilizing the station as a railroad operations base and retail location, while still earning a reasonable return on its investment, even if the terminal itself was not profitable Additionally, the terminal's designation as a landmark allowed for transferable development rights, enabling compensation for the loss of rights above the terminal Under New York City zoning regulations, these rights could be transferred to other parcels, providing Penn Central with valuable opportunities to enhance and develop its other properties.
The Penn Central ruling confirmed the constitutionality of applying New York City's Landmarks Law to Grand Central Terminal, laying the groundwork for historic preservation law This landmark decision established that historic preservation can be constitutionally applied to privately-owned properties, highlighting the importance of having a comprehensive preservation ordinance in place.
The National Historic Preservation Act of 1966
The Advisory Council on Historic Preservation -
The National Historic Preservation Act of 1966 established the Advisory Council on Historic Preservation, an independent federal agency that has become a significant force in historic preservation As the number of properties listed on the National Register of Historic Places has increased, so too has the council's involvement in preservation efforts Initially, from the late 1960s to early 1970s, the register's growth was slow, and the council's role was limited, with only 400 cases reviewed between 1966 and early 1973 This gradual expansion was due to the novelty of the national register, common misunderstandings of new federal programs, and ambiguous statutory language in Section 106 of the act Today, the council plays a crucial role in overseeing all federal cultural resources management.
113 Kristine M Williams, Preserving Historic Resources, LAND USE LAW, Jun.1990, at 3; Storey, supra note 48, at 21.
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA advisory council is the sole mechanism for evaluation of the impact on historic properties of undertakings by federal agencies.
The preservation process involves a diverse range of professionals, including architects, archeologists, anthropologists, public administration officials, lawyers, historians, and urban planners Over time, the advisory council has evolved in both its responsibilities and membership to reflect this diversity Initially, the council was a simple structure dominated by federal agency control, consisting of seventeen members, including high-level federal officials and the National Trust for Historic Preservation's board chairman, with ten additional members appointed by the President Today, the council's composition acknowledges the interdisciplinary nature of historic preservation, with a more balanced representation and a shift towards greater independence from federal agencies, enhancing its autonomy in preservation matters.
The jurisdiction and responsibilities of the advisory council have significantly expanded since its inception Originally, the council focused solely on evaluating the federal historic preservation program However, the 1966 National Historic Preservation Act broadened its role by redistributing preservation responsibilities between the Secretary of the Interior and the advisory council This act assigned the Secretary of the Interior the tasks of developing and expanding the National Register of Historic Places, providing technical assistance, and distributing historic preservation grants, thereby enhancing the advisory council's influence in historic preservation efforts.
The advisory council consists of nineteen members, including a Chairman appointed by the President, the Secretary of the Interior, the Architect of the Capitol, the Secretary of Agriculture, and leaders from four national agencies involved in historic preservation Additionally, the council includes a governor, a mayor, the President of the National Conference of State Historic Preservation Officers, the Chairman of the National Trust for Historic Preservation, four experts in historic preservation, and three members from the general public.
The West Virginia Law Review focuses on advocating for historic preservation both within governmental frameworks and in broader contexts It also evaluates federal policies and programs that impact historic preservation and provides insightful commentary on these initiatives.
The central responsibility of the advisory council is delineated in Section
106 of the National Historic Preservation Act (NHPA)." This section is significant because it assigns the responsibility for environmental review to the council:
Before approving federal funding or issuing licenses for any federally assisted projects, the heads of relevant federal agencies must consider the potential impact of these undertakings on sites, buildings, or objects listed or eligible for listing in the National Register Additionally, these agency heads are required to consult with the Advisory Council on Historic Preservation to ensure that historical and cultural resources are protected.
Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.' 24
Over the years, Congress has expanded Section 106 of the National Historic Preservation Act (NHPA), enhancing the review powers of the advisory council Initially established in 1966, Section 106 mandated federal agencies to assess only properties listed on the National Register of Historic Places, neglecting those eligible for inclusion As a result, federal agencies were only required to identify and plan for historic properties that were officially registered, as the original language of Section 106 did not address properties that were eligible but not yet listed.
In 1976, Congress amended the act to include both properties that were on the National Register and properties that were eligible for inclusion in the
125 Law as of Oct 15, 1966, P.L 89-665, 80 Stat 917.
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA register.' Congress passed this amendment partly as a response to and an affirmation of Executive Order 11593, Protection and Enhancement of the Cultural
On May 13, 1971, President Nixon signed an Executive Order amid growing controversy surrounding Section 106, which had become subject to various interpretations due to its vague language This ambiguity led to complex and convoluted interpretations by some agencies The Executive Order aimed to enhance the council's authority by mandating that federal agencies seek the advisory council's input on any project impacting eligible cultural resources.
The 1976 amendments and Nixon's executive order significantly enhanced the council's role in the Section 106 review process by expanding its review powers and affirming its responsibilities These laws mandated that all federal agencies seek advisory council input, thereby increasing the obligations of both agency officials and the council In response to the executive order, Congress amended Section 106 to encompass not only listed properties but also eligible ones This expansion under Executive Order 11593 and Section 106 of the NHPA widened the advisory council's jurisdiction and imposed greater responsibilities on federal agencies to safeguard cultural resources.
The 1976 amendments clarified the jurisdiction and responsibilities of the advisory council and agency officials by introducing significant changes Notably, the amendments included the phrase "or eligible for inclusion in" to Section 106, enhancing its scope Additionally, Congress established a new provision in Section 211, allowing the council to create procedures and regulations for Section 106 review This amendment addressed the longstanding issue of enforceability that had affected the council since 1966, providing much-needed guidance for both the advisory council and federal agencies.
128 Law as of Sept 28, 1976, P.L 94-422, 90 Stat 1320.
The West Virginia Law Review discusses the responsibilities outlined in Section 106, emphasizing that following the 1976 amendment, the council has the authority to create necessary rules and regulations for the effective implementation of this section of the Act.
In 1979, the council established regulations known as the Protection of Historic and Cultural Properties, which delineate the responsibilities of agency officials, state historic preservation officers, and the council in the Section 106 process These regulations aim to resolve conflicts through consultation by requiring agency officials to identify affected historic properties, assess the impact of their undertakings on these properties, and provide the council with an opportunity to comment The state historic preservation officer plays a crucial role in coordinating state involvement in the act's implementation and assisting agency officials in identifying and evaluating historic properties Additionally, the advisory council is tasked with providing comments to agency officials regarding any undertakings that may affect historic properties.
The agency is required to follow clear and detailed regulations for identifying historic properties This involves assessing information needs, locating historic sites, and evaluating their historical significance.
A thorough review of existing information on historic properties that may be impacted by the project is essential, including data on any unidentified historic sites in the vicinity Additionally, it is important for officials to consult with the state historic preservation officer to determine any further actions needed to enhance the identification of historic properties.
135 Law as of Sept 28, 1976, P.L 94-422, 90 Stat 1322.
The West Virginia agency is tasked with gathering independent information about historic properties from various public and private organizations, as well as individuals knowledgeable about these sites To ensure compliance with the Secretary of the Interior's standards and guidelines, the agency actively seeks to identify historic properties that may be impacted by its initiatives and collects relevant data regarding their eligibility for preservation.
The National Register of Historic Places
Property Types Listed on the National Register of
A district is a "geographically definable area."' 96 It must possess a
"significant concentration, linkage or continuity of sites, buildings, structures or objects united by past events, or aesthetically by planning or physical
194 PRESERVATION ALLIANCE OF WEST VIRGINIA, INC., PRESERVATION SOURCEBOOK: A GUIDE
TO WEST VIRGINIA HISTORIC PRESERVATION 16-17 (1983).
The survey of historic preservation in West Virginia highlights the importance of geographically defined districts that share a common association or historical significance An illustrative example of such a district is the Georgetown Historical District located in Washington, D.C., which showcases the value of preserving sites that contribute to our understanding of history and culture.
A site is defined under the act as "the location of a significant event, a prehistoric or historic occupation or activity, or a building or structure, whether standing, ruined, or vanished, where the location itself maintains a historical or archaeological value regardless of the value of any existing structures."' 99 For example, the location of the Battle of Blair Mountain in southern West Virginia exemplifies a site Prickett's Fort, north of Fairmont, would be another.
A building can include "a house, barn, church, hotel, or other similar structure." ' ° Groupings can also be considered buildings within the boundaries of the act; a courthouse and jail, or a house and garage could qualify as a building 20 1 d Structures
A structure is usually a large engineering project 2 It is defined as a work comprised of "interdependent and interrelated parts in a definite pattern of organization." 2 ' 3
WEST VIRGINIA LAW REVIEW e Objects
Finally, the definition of an object is broad in scope An object can be of
"functional, aesthetic, cultural, historical, or scientific value ''2°4 It can be movable,but is usually associated with a particular setting 2 " 5
Criteria for Eligibility
The Secretary of the Interior developed certain criteria for eligibility to the register 2 "' These criteria identify the range of resources and kinds of significance that will qualify properties for a listing Properties that satisfy the criteria for eligibility, whether officially listed or not, trigger the Section 106 review process 207
A property need only satisfy one of the criteria to become eligible for listing to the register However, several general considerations, called the "criteria considerations," limit the eligibility of specific properties 0 8
There are four main criteria for eligibility First, a property may be registered if it is "associated with events that have made a significant contribution to the broad patterns of our history., '209 Basically, this means that a property is eligible if it is associated with a particular event, or series of events, significant in our history The particular event can be significant at the national, state, or local level For example, the founding of a community, a pattern of agricultural land use, or a specific battlesite would each satisfy this criteria The second criteria is association with the life of a person significant in our history 2 0 That person may be important at the national, state, or local level The Waitnan T Willey house, or the Mother Jones house, in West Virginia would be eligible under this criteria.
The third possible criteria for admission to the National Register contains four subparts, all dealing with the art or architecture of a given property, whether
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA it is a site, structure or building 2 ' First, a property may be eligible if it embodies
Buildings can qualify for listing based on their unique architectural style representative of a specific historical period For instance, the West Virginia state capitol meets this criterion due to its distinctive design Additionally, properties designed or constructed by skilled professionals—such as architects, engineers, or builders—are also eligible, regardless of the master's fame or recognition within the industry In some cases, the identity of the master may not even need to be known.
Sometimes the work of an individual can be recognized for their contribution to the architecture of a region or by examining structures of a particular period The third subpart declares eligible any property that "possess[es] high artistic values 2 6 For example, a mural, fine woodwork, and prehistoric rock painting would all potentially qualify under this category The final subpart to the third category of eligibility states that a property may be listed if it "represent[s] a significant and distinguishable entity whose components may lack individual distinction." 2 7 This subpart is intended for use with districts A group of buildings or an area of a city may be eligible collectively, even though its individual parts would not meet the criteria for a listing 21 8 A set of company houses from an old coal town, or a set of buildings along a riverfront area, may be an example of a district that would meet this criteria.
The final criteria usually applies to archeological sites and districts 2 9 This criteria permits properties to be registered if the properties have provided, or may
WEST VIRGINIA LAW REVIEW likely yield important information concerning history or prehistory? 20 Important information is anything that can contribute to a particularly significant research question about the past, or if it is likely to be of use in answering such questions in the future In West Virginia, there are several locations on the National Register which are eligible under this criterion A site in Saint Albans is one of them 22 ' It is the most deeply stratified site in the United States, with deposits that extend to fifteen feet deep.' m These deposits date to approximately 11,000 B.C 223 Another historical archeological site in West Virginia is the Grave Creek Mound site, which contains the largest Adena mound in the United States 224 Because of its historic significance, this site is on both the National Register of Historic Places and theNational Register of Historic Landmarks The Buffalo site in Putnam County, a late prehistoric village containing artifacts that date back to the 1600s, is a another listing under this criteria 22
Criteria Considerations: Limitations on Eligibility 452 D The West Virginia Division of Culture and History
As previously noted, some general considerations limit a property's eligibility Called the "Criteria Considerations," they are partial exceptions to the four National Register Criteria 226 There are seven such limitations on eligibility 227 First, a religious property is not eligible unless its primary significance is architectural or artistic in nature, or if it is of particular historical importance 22 A church whose primary significance is attributed to religious ceremonies, for example, would not qualify for' a listing The second consideration focuses on
221 Telephone interview with Pat Trader, Senior Archeologist, State Historic Preservation Office (Nov 10, 1997).
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA properties that have been moved from their original location? 29 A property is not eligible if it has been removed from its original location, unless it is significant in a way disassociated from its location 23 However, properties are still eligible if their significance is primarily derived from its architectural value, or if the property is the most important surviving structure associated with an historical figure or event 23
Eligibility for the National Register is limited for birthplaces and graves, typically requiring individuals to be of outstanding importance without alternative associated sites Cemeteries face similar restrictions, as they must gain significance from the graves of notable individuals, their historical age, unique design features, or connections to historic events Consequently, many cemeteries are excluded from eligibility; however, those housing the remains of numerous historic figures or possessing significant age often receive recognition on the National Register.
In addition, reconstructed buildings are not eligible for a listing, except under special circumstances 36 The criteria generally exclude these types of buildings because of their lack of authenticity However, a reconstructed building may still be listed if it satisfies three criteria: (1) the reconstruction is historically accurate; (2) the building is "presented in a dignified manner as part of a restoration master plan;" and (3) no other, original building or structure survives that has the same association 7 Reconstructed buildings may be eligible if they are the only
In West Virginia, properties that commemorate specific events, individuals, or architectural styles can hold significant value; however, to qualify for registration, a property must possess its own historical importance This historical significance may stem from various factors, including its design, age, cultural traditions, or symbolic meaning.
To be eligible for listing on the National Register, properties must typically be over fifty years old, unless they possess exceptional significance For instance, properties linked to World War II have only recently qualified for consideration Additionally, while properties related to space exploration have not yet reached the fifty-year mark, their extraordinary historical importance may allow them to be eligible for the Register.
To be eligible for the register, a property must not only meet specific criteria but also demonstrate integrity in aspects such as location, design, setting, materials, workmanship, feeling, and association If a property's historical integrity is compromised due to alterations, it may lose its eligibility The assessment of integrity must align with the particular criterion being satisfied, as certain aspects, like workmanship for properties representing a master’s work, may hold more significance than others, such as location.
D The West Virginia Division of Culture and History
The West Virginia Division of Culture and History oversees historic preservation in the state, with the commissioner acting as the State Historic Preservation Officer (SHPO) The division addresses preservation matters through two key entities: the Historic Preservation Section (HPS) and the Citizens' Advisory Committee.
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Commission on Archives and History 244
The Archives and History Commission, established under the National Historic Preservation Act of 1966, functions as the state review board for historic preservation in West Virginia The commission is composed of thirteen members appointed by the Governor, including diverse citizen volunteers such as historians, architectural historians, historical architects, archaeologists, archivists, librarians, and museum specialists Additionally, the director of the state Geological and Economic Survey, the president of the West Virginia Preservation Alliance, Inc., and the State Historic Preservation Officer (SHPO) serve as ex officio non-voting members, ensuring a comprehensive representation of interests in historic preservation.
The Archives and History Commission holds advisory and supervisory roles over the historic preservation section within the Division of Culture and History, overseeing archives, museums, and historic preservation Its involvement in historic preservation is mainly advisory, as it guides the commissioner and the Historic Preservation Section (HPS) in achieving preservation goals The commission is responsible for approving and distributing federal and state grant funds, managing federal funding, and establishing rules and regulations for its operations Additionally, it reviews and approves nominations for the National Register of Historic Places, ensuring the integrity of historic preservation efforts.
While the Commission has general supervisory powers, it is the SHIPO in conjunction with the HPS who administer the historic preservation program in West
The State Historic Preservation Office (SHPO) in West Virginia, established under the National Historic Preservation Act, plays a crucial role in managing historic preservation efforts This office, part of the National Park Service, oversees comprehensive statewide planning, conducts surveys to identify historic properties, and administers federal grant programs Additionally, the SHPO assists local governments with planning and preservation projects, provides public information, and engages in the Section 106 review process, ensuring regulatory compliance and determining eligibility for the National Register of Historic Places.
In West Virginia, the State Historic Preservation Officer (SHPO) is not a full-time role, as it is held by the Commissioner of Culture and History, who oversees the Historic Preservation Section (HPS) within the Division of Culture and History The HPS has extensive responsibilities, including locating, surveying, investigating, registering, and preserving historically significant properties, in line with the National Historic Preservation Act of 1966 Additionally, the HPS develops and maintains the West Virginia State Register of Historic Places, which serves as a planning tool for state and local governments, although it primarily utilizes the National Register for listings.
252 Pierce, supra note 167; Interview with Billy Joe Peyton, Associate Director, Institute for the History of Technology and Industrial Archaeology (Aug 12, 1997).
255 Peyton, supra note 252; Pierce, supra note 167.
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Historic Landmarks Commissions
In West Virginia, the State Historic Preservation Office (SHPO) and the Historic Preservation Society (HPS) oversee the historic preservation program, while historic landmarks commissions serve as the primary means for implementing preservation policies These commissions, established by municipal or county authorities, play a crucial role in facilitating local preservation efforts.
City or county governments can grant varying levels of authority to their landmarks commissions Communities with robust landmarks commissions tend to exhibit a more significant commitment to historic preservation.
Landmarks commissions play a crucial role in safeguarding privately owned, historically significant properties from changes and destruction under West Virginia law These commissions can survey historic properties, create local registers, set care standards, and manage preservation funds They also have the authority to review alterations in designated districts through public hearings, thereby preventing the demolition of significant structures For instance, Jefferson County and Berkeley County have established their own local registers of historic places Design review powers are assigned by the city or county, with commissions in Lewisburg, Martinsburg, and Charleston having such authority, while Wheeling's commission has design review capabilities without an enforced district.
Technically, no limits exist on what types of design review the commission
The power of a landmarks commission in West Virginia is restricted to the authority granted by the city, as demonstrated by the city of Lewisburg's objection to the commission's attempt to regulate a soda machine outside a gas station This limitation highlights the importance of local organizations in historic preservation, as they possess a deeper understanding of what holds cultural significance for their communities.
The significance of history is inherently tied to cultural context, emphasizing the need for local preservation initiatives The State Historic Preservation Office (SHPO) plays a crucial role by providing financial and technical support to local landmark commissions Through the Certified Local Government Program, the SHPO allocates grant funds to assist local governments in developing preservation programs, which encompass survey work, design guidelines, National Register nominations, and educational efforts in preservation.
The National Main Street Program
The National Main Street program, part of the National Trust for Historic Preservation, encompasses over 700 municipal divisions nationwide, focusing on the economic and aesthetic revitalization of downtown areas This non-profit organization emerged from concerns that cities were sacrificing their heritage by demolishing historic buildings for parking lots in a bid to compete with malls and shopping centers.
274 MAIN STREET MORGANTOWN, DESIGN GUIDELINES FOR PUBLIC PROJECTS i (1990) (on file with author) [hereinafter DESIGN GUIDELINES].
277 MAIN STREEr MORGANTOWN, THE FOUR POINTAPPROACH (on file with author)[hereinafter FOUR POINT APPROACH].
West Virginia's historic preservation efforts are closely linked to the Main Street program, which includes cities such as Charleston, Morgantown, Fairmont, New Martinsville, Beckley, and Wheeling Local organizations involved in these initiatives receive funding through membership dues from businesses, grants, and public sector support from city and county sources Additionally, the state provides essential technical assistance and support to enhance these preservation efforts.
Main Street programs play a crucial role in historic preservation and city planning, leveraging their broad support and non-governmental status to influence municipal projects For instance, Main Street Morgantown has not only sponsored numerous independent initiatives but has also shaped local zoning and planning regulations since 1993, when it first assisted with signage regulations Additionally, the organization is responsible for executing the city's downtown revitalization plan established in 1994 With its strong support network and expertise in downtown revitalization, Main Street Morgantown provides valuable services to the city, acting as a trusted source of "downtown expertise" without any conflicting interests.
Main Street organizations implement diverse programs designed to enhance the economic and aesthetic vitality of downtown areas, targeting both the overall environment and individual businesses Given that downtowns often house the majority of a town's historic buildings, Main Street initiatives play a crucial role in the preservation, renovation, and restoration of a community's aesthetic heritage The non-governmental nature of Main Street, coupled with robust volunteer involvement and nationwide backing, significantly influences the aesthetic landscape of these urban centers.
278 Interview with Terri Cutright, Executive Director of Main Street Morgantown (Aug 5, 1997).
The West Virginia Law Review network operates under the National Trust, led by a board of directors and an executive director, supported by four volunteer committees These committees concentrate on key areas: promotion, design, organization, and economic restructuring, all integral to historic preservation Notably, the design committee addresses preservation challenges by aiding in the restoration of buildings and enhancing facades and signage, utilizing various grant programs available to downtown businesses.
Main Street organizations, while not legislative bodies, can propose regulations and guidelines to city councils for approval The Urban Design Guideline Subcommittee of Main Street Morgantown is currently developing urban design guidelines for downtown Morgantown, inspired by similar guidelines from Charleston These guidelines aim to create a comprehensive plan for the historic district's design Once approved by the subcommittee, the guidelines will be submitted to the municipal planning commission, which manages the city's overall planning and zoning Preservation concerns have significantly shaped these regulations in both Charleston and Morgantown, with the Charleston guidelines, for instance, requiring complete restoration of building facades before any modifications can be made by owners.
287 DESIGN GUIDELINES, supra note 274, at i.
A survey of historic preservation in West Virginia highlights the importance of restoring building facades before making any alterations, such as renting to telemarketers for temporary use While Morgantown's urban design guidelines are less strict, they still emphasize the preservation of historic elements, including sidewalk paving materials, through specific regulations.
Main Street programs can adapt their focus based on community needs, significantly transforming downtown areas through financial and technical support for historic preservation These initiatives have led to increased property values, substantial investments in local businesses, and enhanced design and financing for historic renovations Additionally, Main Street promotes community awareness of historic structures and sponsors various initiatives, including downtown revitalization plans, business recruitment, and historic walking tours.
Preservation Alliance of West Virginia, Inc
INCENTIVES FOR PRESERVATION
Between 1978 and 1987, the United States invested nearly $12 billion in the rehabilitation of historic buildings Notably, from 1981 to 1986, property owners contributed more private funds to this cause than in all previous years combined This surge in historic preservation efforts was largely driven by tax incentives introduced in 1976 and expanded in 1978.
198 1.31 In 1986, Congress eliminated most of these tax incentives?' Congress reduced the amount of income tax credit and limited the amount available to an
303 Telephone Interview with Terrell Ellis, Executive Director, Preservation Alliance, Inc (Dec.
308 Harry K Schwartz, A Federal Historic Rehabilitation Tax Credit for Home Ownership, HISTORIC PRESERVATION NEws REPRINT, Oct./Nov 1994, at 14.
309 Jayne F Boyle et al., A Guide to Tax-Advantaged Rehabilitation, PRESERVATION INFORMATION, THE NATIONAL TRUST FOR HISTORIC PRESERVATION, Vol I at I (1994).
A survey of historic preservation in West Virginia reveals significant declines following tax reform legislation, which restricted high-income taxpayers from utilizing the rehabilitation credit In the eight years after these changes, the number of certified rehabilitation projects plummeted by eighty-two percent, accompanied by an eighty percent drop in investment for these initiatives.
Federal tax incentives for the rehabilitation of historic buildings remain available, serving as a valuable tool for historic preservation despite being less extensive than in previous years The federal tax credit program encourages the rehabilitation and reuse of certified historic structures, which include individually listed buildings on the National Register, contributing buildings in historic districts, and those in designated local historic districts eligible for listing These certified structures qualify for a tax credit of 20% of qualified rehabilitation expenditures To obtain this credit, the Department of the Interior must certify that the rehabilitation aligns with the building's historic character and, when applicable, the surrounding historic district Both interior and exterior renovations must comply with the Secretary of the Interior's standards for historic preservation projects.
Federal tax incentives are also available for the rehabilitation of old, non- historic structures 32 ' A property falls into this category if it is a non-residential,
316 Side by Side Comparison of the Current Rehabilitation Tax Credit with the Historic
Homeownership Tax Credit (The National Trust for Historic Preservation), Jan 1997, at 1 [hereinafter
Side by Side Comparison, supra note 316.
Property owners of non-historic buildings constructed before 1936 in West Virginia may be eligible for a ten percent rehabilitation tax credit, provided their renovations adhere to the guidelines set by the Department of the Interior.
West Virginia offers a tax credit program that complements the federal initiative, aimed at encouraging preservation investments Property owners who restore or rehabilitate historic properties meeting National Register criteria can claim a ten percent investment tax credit on their state income taxes This state program, similar to its federal counterpart, mandates that all rehabilitation efforts adhere to the Secretary of the Interior's standards for preservation.
Recent legislation introduced in the U.S House and Senate aims to enhance tax credits for historic structures used as primary residences The Historic Homeownership Assistance Act seeks to boost homeownership and encourage investment in the rehabilitation of historic buildings by broadening the existing federal tax credit This expanded credit would apply to all "certified historic structures" eligible for a tax credit, as well as buildings that are individually listed on state or local registers with national certification.
To qualify for the credit, a property owner must occupy the building (or part of it) as a place of principal residence 332 The rate of credit under this program would be
The Historic Homeownership Act in West Virginia allows for a tax credit of twenty percent on qualified rehabilitation expenditures, adhering to the Secretary of the Interior's rehabilitation standards Unlike existing programs, this act imposes no income cap on the use of the historic homeownership credit, broadening access for homeowners engaged in preservation efforts.
CONCLUSION
This survey highlights key legislation that impacts historic preservation and identifies significant non-legislative stakeholders in the field, providing a comprehensive overview of preservation issues.
A key challenge in historic preservation legislation is defining what constitutes cultural value worthy of protection This cultural significance is central to preservation issues, yet it can differ greatly between cultures Consequently, what is deemed historically significant can vary significantly from one individual to another.
Cultural significance varies widely, with what is considered historically important in one society often being viewed as ordinary in another To address this disparity, legislative measures at various levels have sought to establish clear definitions and regulations However, in striving for specificity, these regulations can sometimes overlap, creating complexity across different jurisdictions.
Historic preservation encompasses a diverse array of stakeholders, including architects, historians, politicians, and real estate agents, making it a complex and interdisciplinary field Its multifaceted nature complicates categorization and definition, as numerous individuals contribute to its development across various platforms Legislation governing historic preservation spans from federal mandates to local landmark commissions, with overlapping responsibilities and regulations that create a web of competencies at all levels.
Efforts to preserve the heritage of West Virginia are increasing as a whole. However, individual battles continue to be waged in communities everyday Like
Side by Side Comparison, supra note 316, at 2.