Morgantown, Summer 1997
Downtown Morgantown received historic designation in 1996, when the
Morgantown Historic Landmarks Commission succeeded in placing it on the
Morgantown's downtown area, recognized on the National Register of Historic Places, showcases its rich history through buildings that echo the 1920s, a prosperous era marked by significant industrial growth and the arrival of twenty-four passenger trains daily.
This decade saw more fundamental changes than had taken place in the entire century and a half of Morgantown's previous existence 3
Historic designation plays a crucial role in safeguarding a historic district by enabling property owners to access tax credits for property rehabilitation, thereby underscoring the area's significance and fostering economic growth through tourism However, maintaining this designation is contingent on the collective efforts of property owners, as losing historic character in over sixty-five percent of downtown structures can jeopardize tax credit eligibility In downtown Morgantown, where development is influenced by the University community, property owners must collaborate to preserve the district's historic integrity Changes made to contributing buildings should be carefully considered, as they can affect not only the individual property but also the overall eligibility for tax credits within the historic district.
In the Spring of 1997, WesBanco, headquartered in Wheeling, bought The
Interview with Barbara Rasmussen, President, Morgantown Historic Landmarks Commission
2 WEST VIRGINIA UNIVERSITY PUBLIC HISTORY OPTION, MORGANTOWN BICENTENNIAL
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA
National Bank of West Virginia 7 The building, a 1920s structure of modest
Depression-era commercial architecture, flanks the approach to downtown
Sadie Crowe mini-park, located in the historic district of Morgantown, has a rich history, having previously functioned as a Woolworth's store and a venue for local religious services.
Jewish community The new owners determined that the building did not look enough like a bank.' 0 The new property owners claimed that the building had a
The proposed alterations to the historic bank building involve a complete transformation of its facade, including the removal of the glass entry, modifications to the windows, the addition of columnar decorations, and the introduction of a false parapet third level These changes aim to enhance the building's height and aesthetic appeal, despite concerns regarding its architectural significance and the preservation of its original elements.
Several civic organizations expressed their dismay over the project The
State Historic Preservation Office within the West Virginia Division of Culture and
Sensitive planning and design are crucial for creating a facade that harmonizes with the historical character of an area while adhering to acceptable rehabilitation guidelines 3 Main Street Morgantown is committed to the economic and aesthetic revitalization of downtown, ensuring that development respects the region's heritage.
Morgantown engaged an architect to suggest a rehabilitation plan that honors the building's character and aligns with its stylistic elements This approach addresses the bank's concerns regarding the building's appearance.
7 Press Release, issued by Barbara Rasmussen, President, Morgantown Landmarks
Commission, Morgantown, West Virginia (on file with Terri Cutright, Executive Director, Main Street
I I Letter from Barton Loar, President of the Monongalia County Division, WesBanco, to Bill
MacDonald, Design Co-Chair, Main Street Morgantown (Mar 19, 1997); Letter from Barton Loar,
President of the Monongalia County Division, WesBanco, to Barbara Rasmussen, President,
Morgantown Historic Landmarks Commission (Mar 19, 1997).
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).
WEST VIRGINIA LAW REVIEW a five-and-dime store than a bank, the Morgantown Historic Landmarks
The Commission highlighted successful adaptive reuse projects undertaken by various historic property owners in downtown areas For instance, one bank revitalized a former dry goods store, while another transformed a building that previously served as both a post office and a men's clothing store These examples demonstrate the potential of adaptive reuse in preserving historical significance while meeting modern needs, as showcased by the Preservation Alliance of West Virginia, Inc.
West Virginia's largest private preservation organization, stressed that communities that protect their heritage can benefit economically: "Morgantown and the
Monongahela River Valley have a history that spans more than two centuries.
Morgantown's rich heritage, shaped by three wars, an industrial revolution, and a respected university, underscores the responsibility of absentee-owned businesses to support the local economy Altering a structure within the historic district could jeopardize its designation, impacting approximately 125 property owners in the area.
Historic structures listed on the National Register of Historic Places lack legal protection, as only local design review can provide such safeguards, a measure not yet adopted by many West Virginia cities, including Morgantown Consequently, despite opposition from preservation advocates, WesBanco proceeded with construction on a contributing building in the downtown historic district in November, significantly altering its historic facade This rehabilitation effort not only removed original architectural features but also misleadingly raised the building's height to three stories, despite the absence of a third story.
This incident, played out in downtown Morgantown throughout the summer of 1997, is one that occurs more and more frequently in towns across West Virginia.
The drive to develop resources often conflicts with the need for preservation, but these goals can coexist This article will explore the evolution of historic preservation, highlighting its economic advantages, the strategies for safeguarding historic resources, and the various programs and incentives available to support preservation efforts.
20 Letter from Michael Gioulis, supra note 14.
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Development of Historic Preservation
To grasp historic preservation law, it's essential to recognize the evolution of concern for safeguarding cultural resources The Mount Vernon Ladies' Association is often acknowledged as a pioneer in this movement.
In 1853, Ann Pamela Cunningham initiated the historic preservation movement by striving to protect Mount Vernon from developers and restore it to its original state during George Washington's time This effort inspired subsequent groups to advocate for the commemoration of significant events and figures in American history.
Revolution.' Local historical societies initiated the purchase of old homes, and around the turn of the century, a few architects published books of details from old
Georgian and Federal style houses 24
In 1906, Congress enacted the Antiquities Act, marking the first significant legislative effort to safeguard historic treasures This landmark legislation empowers the President to officially designate historic landmarks, structures, and objects of interest through public proclamation Additionally, the Act establishes penalties for individuals who damage, destroy, excavate, or unlawfully appropriate historic sites located on public lands or federal property.
As the automobile industry expanded in the 1920s, individual preservation efforts gained momentum, with notable figures like Henry Ford and John D Rockefeller, Jr investing their wealth into restoration initiatives Henry Ford notably established a historic area in Dearborn, Michigan, dedicated to preserving old buildings.
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).
WEST VIRGINIA LAW REVIEW tribute to prominent figures in American historyY ° Rockefeller chose to return
Williamsburg, Virginia to its colonial appearance 1 He employed consultants, architects, engineers, landscape architects, and archeologists in this restoration project 32
Following the Great Depression, preservation efforts were mobilized in the
The Historic Sites Act of 1935 established a national policy aimed at preserving historic sites, buildings, and objects of significant importance for public use and inspiration This legislation directed the planning and administration of historic preservation efforts within the Department of the Interior, ensuring that these valuable resources are protected for the benefit of the American people.
Interior 5 Under this act, the Secretary of the Interior was authorized to restore,
The Secretary of the Interior is empowered to reconstruct and maintain historic sites and properties, allowing for agreements with state and local governments to protect and preserve these significant locations This authority was first utilized in the following year when the Secretary identified land in St Louis, Missouri, as having exceptional historic value and initiated actions to acquire it.
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 Government House in St Louis witnessed the transfer of upper Louisiana from Spain to the United States Spanish Commandant Charles Dehault Delassus handed over possession to Captain Amos Stoddard of the United States Army, who represented France in this transaction The following morning, Captain Stoddard formally took possession of the Louisiana Purchase and raised the American flag, marking a significant moment in U.S history.
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA
The Historic Sites Act initiated a National Survey of Historic Sites and Buildings, but the country was not prepared for a comprehensive preservation program during the Post-Depression era, as the focus was on economic recovery Despite the absence of a national preservation strategy, local efforts surged, with Charleston, South Carolina, and New Orleans, Louisiana, taking significant steps to protect their historic districts Notably, the Vieux Carre district in New Orleans began to generate $150 million annually from tourism, highlighting the economic potential of preserving historic sites.
Boston experienced significant economic growth due to its designation as a historic district, with property values in the area tripling between 1955 and 1962 Similarly, Georgetown in Washington, D.C., also benefited from its historic recognition, contributing to its economic vitality.
District of Columbia, was revitalized as a historic district and became one of the most fashionable and expensive areas in the city 43
Preservation efforts saw a decline during World War II but gained momentum after the Korean War in the 1950s The establishment of the National Trust for Historic Preservation in 1949, through a Congressional charter, marked a significant step in heritage conservation In the subsequent years, public awareness grew regarding the urgent need to protect and preserve the nation's cultural heritage.
The site, where American flags have flown continuously for twenty-four hours, holds historical significance as the birthplace of the first civil government west of the Mississippi, the location where Lafayette was welcomed by a grateful populace, and the origin of vital trails such as the Santa Fe and Oregon It was also where Lewis and Clark planned their famous expedition and housed the Court where the pivotal Dred Scott Case was adjudicated.
41 See Richard J Roddewig, Preparing a Historic Ordinance 2, (PLANNING ADVISORY
Congressional mandate, the National Park Service began the National Survey of
Historic Sites and Buildings, which contained listings of registered National
Historic Landmarks 47 A group of mayors, along with members of the National
In 1965, a committee was established by Trust to assess the necessity for a comprehensive preservation program The subsequent year, this committee released its findings in a publication titled "With Heritage So Rich." These recommendations were later formalized into legislation, resulting in the National Historic Preservation Act of 1966.
In the 1970s, historic preservation initiatives surged at both national and local levels, highlighted by a nearly tenfold increase in membership for the National Trust for Historic Preservation following the 1966 Preservation Act Additionally, there was a notable rise in legislation aimed at supporting historic preservation efforts during this decade.
The Archeological and Historic Preservation Act of 1974 increased the participation of the archeological community in preservation issuesO 3 In 1976, Congress provided tax incentives for private sector participation in rehabilitation efforts 5 4
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 rise in state planning and growth management laws, with historic preservation legislation emerging as a prominent and widely debated topic A study conducted by the National Trust for Historic Preservation highlights the importance of these laws in safeguarding cultural heritage and promoting sustainable development.
Preservation in 1975 found 421 communities with local programs to protect historic
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).
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA resources 6 By 1983, that number had more than doubled; approximately 1000 communities had historic preservation programs in placeY 7 Ten years later, the
National Park Service estimated that nearly 2000 communities were actively promoting preservation objectives."
West Virginia has been, and continues to be, a part of this trend Before the
In the 1960s, West Virginia lacked historic preservation legislation, but the passage of the National Historic Preservation Act in 1966 prompted the state to implement laws at various levels, impacting historic properties statewide These regulations established a state historic preservation commission, delegated the management of national preservation guidelines, and empowered local governments to oversee their own historic sites.
Economic Benefits of Historic Preservation
The Constitutional Basis for Historic Preservation
The constitutional basis for historic preservation was established in 1978.85
In a landmark decision, the United States Supreme Court affirmed that safeguarding landmarks and historic districts serves a valid public interest and constitutes an essential government responsibility, as established in the case of 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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City 86 Penn Central Transportation Company and its affiliates, who owned Grand
Central Terminal, wanted to construct a multistory office building above the terminal 87 Under New York City's Landmarks Preservation Law (Landmarks
Law), 88 the terminal had been designated a "landmark" and the block it occupies a
Under the Landmarks Law, owners of designated landmarks are required to obtain approval from the city's Landmarks Preservation Commission before making any exterior changes to their properties Recently, the commission denied a proposal from Penn regarding alterations to a landmark site.
Central's construction plans were deemed harmful to the historic and aesthetic integrity of the terminal In response, Penn Central filed a lawsuit, asserting that the city had unlawfully "taken" its property without just compensation, violating the Fifth and Fourteenth Amendments The transportation company further contended that it had been arbitrarily deprived of its property without due process, also in violation of the Fourteenth Amendment.
The court addressed the issue of whether the restrictions imposed by New
York City's Landmarks Law upon Penn Central's exploitation of the terminal site effect a "taking" of property for a public use within the meaning of the Fifth and
Fourteenth Amendments? 4 In deciding whether or not a governmental action constitutes a "taking," the Court focused "on the character of the action and on the
Under the Landmarks Law, building owners seeking to modify a landmark site can request a "certificate of no effect on architectural features," a "certificate of appropriateness," or a "certificate of appropriateness" based on insufficient return.
The Commission grants a general certificate of appropriateness when it determines that a proposed construction will not negatively impact the landmark's aesthetic, historical, and architectural values Additionally, a certificate may be issued if the property owner cannot achieve a "reasonable return" on the site in its current condition, ensuring that landmark designation does not lead to significant economic hardship.
WEST VIRGINIA LAWREVIEW nature and extent of the interference with rights in the parcel as a whole." 95 The
The court dismissed Penn Central's claim that restrictions on individual landmarks under New York City's Landmarks Law constitute a "taking" by targeting specific property owners It acknowledged that while historic-district and zoning regulations apply broadly to all properties, the Landmarks Law focuses on individual landmarks However, the court concluded that such landmark laws are not discriminatory; instead, they represent a comprehensive effort to preserve historically or aesthetically significant structures throughout the city.
The Court noted that a government may enact laws or programs that adversely affect recognized economic values without constituting a "taking." 98
Laws that restrict land use are acceptable when they fulfill a significant public interest, provided that the government has reasonably determined that such prohibitions will enhance health, safety, morals, or the overall welfare of the community.
The Court upheld New York City's goal of preserving historically and architecturally significant structures, affirming that the Landmarks Law effectively supports this objective While the law imposes specific restrictions on landmark properties to achieve preservation, it also aims to guarantee property owners a reasonable return on their investments.
The well-developed nature of the New York City Landmarks Law and the presence of viable alternatives available to Penn Central were also influential in the
Court's reasoning In discussing the nature of the New York City ordinance, the
The court emphasized that judicial review is available at both levels for landmark designations and permit approvals, ensuring a fair application of the ordinance This systematic review process is crucial for maintaining the integrity of decisions made regarding these designations and permits.
The court's decision was shaped by Penn Central's failure to take action, as the transportation company neither pursued judicial review of the terminal's landmark designation nor contested the denial of its certificate of no effect.
The survey of historic preservation in West Virginia highlights the significance of maintaining appropriateness in preservation efforts Following the denial of its certificate, Penn Central failed to propose alternative plans for the commission's review The Court's decision was also shaped by the thorough approach taken by the state Landmarks Commission in addressing preservation matters.
The Preservation Commission conducted a thorough survey of the city to identify potential historic properties, resulting in the designation of over 400 landmarks and thirty-one historic districts under the comprehensive Landmarks program.
The Court determined that the transportation company had multiple feasible options at its disposal It concluded that the tax-exempt status of the terminal made it appropriate for both current and future applications.
Penn Central has the option to maintain the station as a railroad operations base and retail site, ensuring continued utility Additionally, the company can achieve a reasonable return on its investment, as income from its extensive real estate holdings in the vicinity can be attributed to the terminal Furthermore, transferable development rights offer substantial compensation for the loss of rights above the terminal, enhancing the overall financial viability of the property.
In New York City, zoning resolutions allow owners of landmark sites to transfer their development rights to adjacent properties This ordinance enables the transfer of rights from a landmark parcel to properties located directly across the street or to other nearby lots, facilitating development opportunities while preserving historical sites.
The Court found that the development rights afforded Penn Central by virtue of the terminal's designation as a landmark were valuable because they afford Penn
Central opportunities to enhance and develop other properties 8
The National Historic Preservation Act of 1966
The Advisory Council on Historic Preservation -
The National Historic Preservation Act of 1966 created the Advisory
The Council on Historic Preservation is an independent federal agency that plays a significant role in historic preservation, particularly as the number of properties on the National Register of Historic Places has increased Initially, from the late 1960s to early 1970s, the council's involvement was minimal, with only 400 cases reviewed between 1966 and 1973, largely due to the novelty of the national register and the unclear statutory language in Section 106 of the act Today, the council oversees all federal cultural resources management, reflecting its expanded influence in the preservation landscape.
113 Kristine M Williams, Preserving Historic Resources, LAND USE LAW, Jun.1990, at 3;
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, archaeologists, anthropologists, public administration officials, lawyers, historians, and urban planners Over time, the advisory council has evolved in both responsibility and membership to reflect this diversity Initially, the council was a basic entity dominated by federal agency control, consisting of seventeen members, including cabinet-level officials and the chairman of the National Trust for Historic Preservation, with ten additional members appointed by the President Today, the council's composition acknowledges the interdisciplinary nature of historic preservation, with an expanded membership and a shift in power dynamics, resulting in a more independent and autonomous body.
The jurisdiction and responsibilities of the council have significantly expanded since its inception, evolving from its original role of solely evaluating the federal historic preservation program established in the 1966 National Historic Preservation Act.
Preservation Act increased the council's responsibilities by distributing preservation responsibilities between the Secretary of the Interior and the advisory council 20
The act mandates the Secretary of the Interior to oversee the development and expansion of the National Register of Historic Places, offer technical assistance, and allocate historic preservation grants Additionally, the advisory council plays a crucial role in supporting these 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, it 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 historic preservation experts, and three members from the general public.
The West Virginia Law Review focuses on promoting historic preservation both within government and in the broader community It also involves reviewing and analyzing federal policies and programs that impact historic preservation, providing insightful commentary on these important issues.
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 the expenditure of Federal funds or issuing licenses for any proposed Federal or federally assisted projects, the heads of relevant Federal agencies must consider the potential impact of these undertakings on districts, sites, buildings, structures, or objects listed or eligible for listing in the National Register Additionally, they are required to consult with the Advisory Council on Historic Preservation to ensure that historic preservation is taken into account.
Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.' 24
Since its inception in 1966, Congress has progressively expanded Section 106 of the National Historic Preservation Act (NHPA), enhancing the advisory council's review authority Initially, this section mandated federal agencies to review only those properties listed on the National Register of Historic Places, leaving out properties that were eligible but not yet registered Consequently, under the NHPA, federal agencies were only required to identify and plan for historic properties that were officially recognized on the register.
Register of Historic Places 26 As originally written, Section 106 did not contain the language "or eligible for inclusion in."' 2 7
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 notorious for its vague language leading to varied interpretations Some council members criticized federal agencies for their convoluted interpretations of the provision The new order enhanced the council's authority by mandating that federal agencies seek the advisory council's input on any actions 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 changes mandated that all federal agencies seek advisory council commentary, thereby increasing the obligations of both agency officials and the advisory council In response to the executive order, Congress amended Section 106 to encompass not only listed properties but also eligible properties This expansion, along with Executive Order 11593, broadened the advisory council's jurisdiction and intensified the responsibility of federal agencies to safeguard cultural resources.
The 1976 amendments clarified the jurisdiction and responsibilities of the advisory council and agency officials by introducing two key changes Firstly, they added the phrase "or eligible for inclusion in" to Section 106, enhancing its scope Secondly, Section 211 was introduced, allowing the council to establish procedures and regulations for Section 106 review, which addressed the longstanding issue of enforceability that had affected the council since 1966 Prior to these amendments, the act did not provide sufficient guidance for 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 to guide agency officials, state historic preservation officers, and the council itself in the conduct of the Section 106 process, known as the Protection of
The regulations regarding Historic and Cultural Properties aim to clarify the responsibilities of each party involved in preserving these sites and to resolve conflicts through consultation Agency officials are required to identify historic properties that may be affected by their undertakings, assess the potential impacts, and provide the advisory council with an opportunity to offer comments The state historic preservation officer plays a crucial role in coordinating state efforts to implement the act and assists agency officials in identifying historic properties and evaluating their effects Additionally, the advisory council is tasked with providing feedback to agency officials on any projects that may impact historic properties.
The regulations require agencies to thoroughly identify historic properties by evaluating their historical significance, assessing information needs, and locating these properties.
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).
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA development." 197 A district can be divided geographically, as long as it is united by a common association or history 9 ' The Georgetown Historical District in
Washington, District of Columbia is an example of an historically significant district. b Sites
A site is defined as a location that holds historical or archaeological significance due to a notable event, occupation, or activity, regardless of the current state of any structures present Examples of such sites include the Battle of Blair Mountain in southern West Virginia and Prickett's Fort, located north of Fairmont.
A building encompasses various structures such as houses, barns, churches, hotels, and similar entities Additionally, groupings of structures, like a courthouse and jail or a house and garage, can also be classified as buildings under the relevant regulations.
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 established specific eligibility criteria for properties to be included in the register, outlining the types of resources and significance required for qualification Properties meeting these criteria, regardless of their official listing status, initiate the Section 106 review process.
To qualify for listing on the register, a property must meet at least one eligibility criterion However, there are overarching "criteria considerations" that may restrict the eligibility of certain properties.
To qualify for registration, a property must meet four main criteria Firstly, it should be linked to events that significantly contributed to historical patterns, which can be recognized at the national, state, or local level Examples include the founding of a community, agricultural land use, or notable battlesites Secondly, a property may be eligible if it is associated with the life of a historically significant individual, whether on a national, state, or local scale, such as the Waitman T Willey house or the Mother Jones house in West Virginia.
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
A building is eligible for listing if it exemplifies a specific architectural style from a particular historical period Additionally, properties designed or constructed by skilled masters—such as engineers, architects, or builders—also qualify, regardless of the master's fame or recognition within the profession For instance, the West Virginia state capitol meets these criteria due to its distinctive design.
Recognition of an individual's contribution to regional architecture can stem from their work or the examination of structures from a specific period Properties with high artistic value, such as murals, fine woodwork, and prehistoric rock paintings, may qualify for listing Additionally, properties that represent a significant and distinguishable entity, even if their components lack individual distinction, can also be eligible This is particularly relevant for districts, where a collection of buildings or areas, like company houses from an old coal town or structures along a riverfront, may qualify collectively despite individual parts not meeting listing 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 is home to several significant archaeological sites that hold valuable information about history and prehistory One notable location is in Saint Albans, recognized as the most deeply stratified site in the United States, with deposits reaching depths of fifteen feet and dating back to approximately 11,000 B.C Another important site is the Grave Creek Mound, which features the largest Adena mound in the country Due to their historic significance, both sites are listed on the National Register of Historic Places, contributing to our understanding of past cultures and societies.
National 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
Certain general considerations, known as "Criteria Considerations," can restrict a property's eligibility for the National Register These considerations serve as partial exceptions to the four main National Register Criteria, with a total of seven limitations impacting eligibility.
A religious property is only eligible for listing if its primary significance lies in its architectural or artistic qualities, or if it holds notable historical importance For instance, a church primarily recognized for its religious ceremonies does not meet the criteria for listing.
221 Telephone interview with Pat Trader, Senior Archeologist, State Historic Preservation Office
In West Virginia, properties that have been relocated from their original sites are generally ineligible for historic preservation unless they possess significance independent of their location However, properties can still qualify if their importance is rooted in architectural value or if they are the most significant surviving structures linked to a historical figure or event.
Eligibility for the National Register of Historic Places is restricted for birthplaces and graves, generally requiring individuals to be of outstanding importance and lacking other associated sites Cemeteries face similar constraints, only qualifying if they hold significant graves, possess distinctive design features, or are linked to historic events Consequently, many cemeteries are excluded from eligibility; however, those that contain the remains of notable figures or are historically significant in age often receive recognition on the National Register.
Reconstructed buildings are typically ineligible for listing due to their lack of authenticity, except under specific circumstances To qualify for listing, a reconstructed building must meet three criteria: it must be historically accurate, presented in a dignified manner as part of a restoration master plan, and there must be no surviving original structure with the same historical association.
WEST VIRGINIA LAW REVIEW properties representing a particular event, person, period, or type of construction 2 38
A property with primarily commemorative value can only be registered if it possesses its own historical significance, which may stem from factors such as its design, age, tradition, or symbolic value.
To qualify for listing on the National Register, properties generally must be at least fifty years old, unless they possess exceptional significance For instance, properties linked to World War II have only recently become eligible Additionally, while properties related to space exploration do not yet meet the fifty-year requirement, they may still qualify for the Register due to the extraordinary importance of the events they represent.
To qualify for the register, a property must meet specific criteria and demonstrate "integrity of location, design, setting, materials, workmanship, feeling, and association." If alterations have compromised its historical integrity, the property may lose its eligibility Evaluating a property's integrity involves assessing it against the relevant criterion, where certain aspects, like workmanship for a master’s work, may hold greater 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) Within this division, preservation matters are addressed by two key entities: the Historic Preservation Section (I-IPS) and the Citizens' Advisory Committee.
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA
Commission on Archives and History 244
The Archives and History Commission carries out the provisions of the
National Historic Preservation Act of 1966 and serves as the "state review board" under the act 245 The Governor appoints thirteen members to the commission.
The commission comprises a diverse group of citizen volunteers with expertise in historic preservation, including 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 non-voting ex officio members.
The Archives and History Commission plays a crucial advisory role in the historic preservation efforts within the Division of Culture and History While it oversees various sections, including archives, museums, and historic preservation, its direct involvement in preservation activities is somewhat limited The commission provides guidance to the commissioner and the Historic Preservation Section (HPS) to achieve preservation goals and actively promotes these objectives.
The Historic Preservation Section plays a crucial role in managing federal and state grant allocations, overseeing federal funds, and establishing rules and regulations related to its operations Additionally, the Archives and History Commission is responsible for reviewing and approving nominations for the National Register of Historic Places.
While the Commission has general supervisory powers, it is the SHIPO in conjunction with the HPS who administer the historic preservation program in West
Virginia 2 The commission serves as an advisory committee to the SHIPO? 5 The
National Historic Preservation Act establishes the responsibilities of the State
Historic Preservation Office, which is a branch of the National Park Service 254
This office carries out the practical administration of historic preservation in West
In Virginia, the State Historic Preservation Office (SHPO) is responsible for comprehensive statewide planning, conducting surveys to identify historic properties, administering federal grant programs, and assisting local governments with planning and preservation projects They also provide public information and engage in the Section 106 review process Similarly, in West Virginia, the SHPO conducts Section 106 regulatory compliance, survey work, and assesses properties for eligibility for the National Register.
In West Virginia, the State Historic Preservation Officer (SHPO) is a dual role held by the Commissioner of Culture and History, overseeing the Historic Preservation Section (HPS) within the Division of Culture and History The SHPO's extensive responsibilities include locating, surveying, investigating, registering, identifying, preserving, protecting, and restoring historically significant properties.
SHPO at the helm, is the organization that carries out the practical aspects of the
National Historic Preservation Act of 1966." 9 Under the West Virginia Code, the
HPS also "develop[s] and maintain[s] a West Virginia State Register of Historic
Places for use as a planning tool for state and local government[s]."26O However, the HPS uses the National Register in lieu of having a separate state listing 2 61
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.
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA
Historic Landmarks Commissions
If the SHPO and the HPS administer the historic preservation program in
West Virginia's historic landmarks commissions serve as essential tools for implementing preservation policies Established by municipal or county commissions, these bodies play a crucial role in local preservation efforts.
City or county governments can determine the level of authority granted to their landmarks commissions, which directly influences the effectiveness of historic preservation efforts Communities that empower their landmarks commissions tend to experience a more robust commitment to preserving historical sites and structures.
Landmarks commissions can protect privately owned, historically significant properties from alteration and destruction 6 Under the West Virginia
Landmarks commissions play a crucial role in preserving historic properties by surveying and identifying them, creating local registers, and establishing care standards for local landmarks They have the authority to acquire, manage, lease, or sell these properties, promote preservation legislation, and administer related funds Additionally, these commissions can maintain a local register and implement regulations to oversee designated districts, utilizing a public hearing process to prevent the demolition or alteration of historically significant structures.
Jefferson County and Berkeley County each maintain their own local registers of historic places For a landmarks commission to possess design review authority, it must be officially designated by the respective city or county In Lewisburg, landmarks commissions play a crucial role in preserving the historical integrity of the area.
Martinsburg, and the east end of Charleston all have some design review power 2 68
The commission in Wheeling technically has design review; however, the city does not have a district established to enforce the review powers 2 69
Technically, no limits exist on what types of design review the commission
The power of a landmarks commission is confined to the authority granted by the city, as demonstrated when Lewisburg's commission faced objections while trying to regulate a soda machine outside a gas station The advantage of having a local organization oversee historic preservation lies in the community's enhanced ability to assess what holds cultural significance.
Cultural significance is inherently tied to the historical context in which it exists, highlighting the importance of local preservation efforts The State Historic Preservation Office (SHPO) actively supports local landmark commissions through financial and technical assistance Under the Certified Local Government Program, the SHPO allocates grant funds to local governments, enabling them to develop preservation initiatives such as survey work, design guidelines, National Register nominations, and preservation education.
The National Main Street Program
Within the National Trust for Historic Preservation is housed the national
The Main Street program, a non-profit organization, encompasses over 700 municipal divisions in downtown areas nationwide It plays a vital role in historic preservation by focusing on the economic and aesthetic revitalization of these urban centers.
The Street program emerged from a growing concern that towns and cities were sacrificing their historical heritage by demolishing well-preserved buildings to make way for parking lots, all in a bid to compete with malls and shopping centers This initiative highlights the need to protect architectural history in at least seventeen cities.
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
SURVEY OF HISTORIC PRESERVATION IN WEST VIRGINIA and towns in West Virginia are associated with the Main Street program? 7 Among them are Charleston, Morgantown, Fairmont, New Martinsville, Beckley, and
Wheeling 2 79 Local organizations are funded by membership dues from contributing businesses, grants, and public sector funding from both the city and the county 280
The state lends technical assistance and support 28 1
Main Street programs play a significant role in historic preservation due to their strong community support and non-governmental status This influence allows them to impact municipal projects and city planning initiatives effectively.
Street Morgantown has not only sponsored a multitude of independent projects, but the organization has also influenced municipal zoning and planning regulations 2 82
The first time it assisted in zoning regulation was in 1993 with a regulation that called for a review of all signage over twelve feet in surface area? 83 Main Street
Morgantown is responsible for executing the downtown revitalization plan established in 1994 The Main Street organization offers valuable expertise and resources for downtown revitalization, allowing the city to leverage its strong support network without any personal interests involved.
Main Street organizations implement diverse programs designed to enhance the economic vitality and visual appeal of downtown areas These initiatives not only support the overall health of the community but also assist individual businesses seeking improvement Given that downtowns often house a significant number of historic buildings, Main Street plays a crucial role in the preservation, renovation, and restoration of a town's aesthetic heritage.
Main Street may affect the aesthetic landscape of downtowns because of its non- governmental nature, its volunteer support, and its strong nationwide support
278 Interview with Terri Cutright, Executive Director of Main Street Morgantown (Aug 5,
The West Virginia Law Review network operates under the National Trust, overseen by a board of directors and an executive director, supported by four volunteer committees These committees concentrate on promotion, design, organization, and economic restructuring, each playing a vital role in historic preservation The design committee specifically addresses preservation concerns, aiding in the restoration of buildings and enhancement of facades and signage through various grant programs available to downtown businesses.
While Main Street organizations do not promulgate legislation, they are able to submit regulations and guidelines to city councils for approval?' An Urban
The Design Guideline Subcommittee, part of the Main Street Morgantown organization, is currently developing urban design guidelines for downtown Morgantown These guidelines, inspired by urban renewal design standards established in Charleston, 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 played a significant role in shaping these regulations in both Charleston and Morgantown.
Charleston guidelines contained a provision, for example, which states that the facade of each building must be completely restored before the owner can do any
287 DESIGN GUIDELINES, supra note 274, at i.
A recent survey of historic preservation in West Virginia highlights the need for building owners to restore facades before making significant alterations for temporary uses, such as renting to telemarketers In contrast, the urban design guidelines in Morgantown are comparatively less strict, allowing for more flexibility in remodeling efforts.
However, historic elements of the downtown landscape, such as sidewalk paving materials, are preserved in specific provisions 297
Main Street programs can be tailored to meet community needs, significantly transforming downtown areas by providing financial and technical support for historic preservation and restoration These initiatives have led to increased property values and millions of dollars invested in local businesses, while also enhancing community awareness of historic architecture Additionally, Main Street sponsors various programs, including downtown revitalization plans, business recruitment efforts, and historic walking tours, further contributing to the revitalization of urban landscapes.
Preservation Alliance of West Virginia, Inc
INCENTIVES FOR PRESERVATION
Between 1978 and 1987, the United States invested nearly twelve billion dollars in the rehabilitation of historic buildings Notably, from 1981 to 1986, property owners contributed more private funding to these efforts than in all previous years combined This surge in historic preservation investment 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 that tax reform legislation significantly impacted rehabilitation projects, leading to an eighty-two percent decline in certified projects over eight years Additionally, the legislation restricted high-income taxpayers from benefiting from preservation tax credits, further exacerbating the decline in preservation efforts.
Investment in those projects fell by eighty percent 5
Federal tax incentives for the rehabilitation of historic buildings remain available, serving as a crucial tool for historic preservation despite being less extensive than in the past 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 can receive a tax credit of 20% of qualified rehabilitation expenditures, provided that the Department of the Interior certifies the rehabilitation aligns with the building's historic character and relevant district standards Additionally, all rehabilitation work must adhere to 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 that their renovation efforts align with the guidelines set forth by the Department of the Interior.
West Virginia offers a tax credit program that complements the federal initiative, encouraging investment in property preservation Property owners who rehabilitate or restore historic properties meeting National Register criteria can claim a 10% investment tax credit on their state income taxes Similar to the federal program, this state initiative mandates that all rehabilitation or restoration work adheres to the Secretary of the Interior's standards for rehabilitation.
Recent legislation has been introduced in the United States House and Senate aimed at boosting the tax credit available for historic structures that serve as primary residences This initiative, known as the Historic Tax Credit, seeks to provide greater financial support for homeowners living in these significant properties.
The Homeownership Assistance Act aims to enhance homeownership opportunities and encourage investment in the rehabilitation of historic buildings by expanding the federal tax credit to include properties that are both owned and occupied as a primary residence This historic homeownership tax credit will apply to all certified historic structures eligible for the credit, as well as buildings individually listed on state or local registers that have received 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 standards for rehabilitation Unlike the existing program, this act does not impose an income cap on those eligible to utilize the historic homeownership credit.
CONCLUSION
This survey highlights the key legislation impacting historic preservation while also identifying significant non-legislative stakeholders in the field, providing a comprehensive perspective on preservation issues.
A significant challenge in historic preservation legislation is the lack of clear definitions Properties are protected under these laws primarily due to their cultural value, which merits safeguarding.
Inherent in preservation issues, therefore, is the notion of cultural significance.
Cultural or historic significance, however, can certainly vary from culture to culture What may be historically significant to one person may not be to another.
Cultural significance varies widely, with what is deemed historically important in one society often being ordinary in another To address this disparity, legislative measures have been implemented across various levels, aiming for clarity in definitions and regulations However, in striving for specificity, there are instances where multiple distinct regulations may intersect, leading to potential overlaps.
Historic preservation encompasses a wide range of interests and involves various professionals, including architects, historians, politicians, and city planners This interdisciplinary field is challenging to define due to its diverse participants and their roles across multiple platforms Legislation related to historic preservation operates at all levels, from federal mandates to local landmark commissions, leading to overlapping responsibilities and a complex regulatory environment.
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.