Riddick: Town can’t enforce historic building maintenance

By Diana McFarland

Managing editor

A local nonprofit, Preserve Smithfield, wants the Smithfield Town Council to mothball or stabilize the Pierceville house and put a lien on the property — as described in the town’s ordinance — but the town attorney said that provision is not enforceable. 

“How does this Town Council want to be remembered across the state — as a Town Council that rolled over or a Town Council that fought for its history,” said Preserve Smithfield member Betty Clark at the June 4 Town Council meeting. 

Town Attorney William Riddick said that since the town’s historic preservation ordinance was first challenged in 1983, the law has evolved and changed. {mprestriction ids=”1,2,3,4,5,6″}

Riddick points to a 2007 Attorney General opinion that said the authority given to a local Board of Historic and Architectural Review is limited to reviewing and approving or disapproving plans for historic structures as being “architecturally compatible,” as well as proposed demolition or moving of an historic structure. 

The opinion was based on the question of whether or not a building official’s opinion superseded the review board on a building that was considered unsafe or unfit to live in, and Attorney General at the time, Robert McDonnell, stated that it did. 

Riddick also said the state code concerning the preservation of historic sites does not address mandatory maintenance and liens, and as Virginia is a Dillon rule state, the town cannot do something that is not provided for in the code. 

It would be ill-advised for the town to pursue something it cannot do, said Riddick, adding that Pierceville is private property, unlike the Windsor Castle manor house, which is owned by the town. 

The Town Council had not had the appetite to spend money on private property, said Riddick, adding that he doesn’t know of any other locality that has either. 

In 2016, the town estimated it would cost $72,000 to stabilize the property. The owner also offered to donate the house to the town, but the Town Council declined the offer. A developer came forward in 2014 to build about 150 homes on the property and renovate the house, but the Town Council did not approve the plans. 

The proponents of mothballing Pierceville point to the 1983 Isle of Wight Circuit Court decision that upheld the town’s ordinance with regards to ordering repairs. 

Dr. Rae Parker Jr. had let his house, located at the corner of Main and South Mason streets, to deteriorate to the point where its survival was in question. 

The town took Parker to court, asking the judge to order repairs on the building. 

Parker countered that the town was overstepping its authority, based on the state code. 

The town’s attorney at the time, Rodham T. Delk, argued that allowing a structure to deteriorate will make it impractical to restore or preserve and that constituted demolition.

Demolition of a historic structure requires town approval once certain conditions are met, according to the code. 

Delk said that the town’s ordinance prevents demolition with its maintenance and repair provision. 

Judge James C. Godwin Jr. ruled in favor of the town, stating it could require owners to maintain existing buildings to prevent destruction by neglect.

The case was scheduled to go to trial, but in the end, Parker settled with the town and made the repairs.  

Riddick said Godwin’s ruling does not hold, as the Attorney General has since provided a different opinion. 

Plus, no one has challenged Godwin’s ruling since, said Riddick.  

A 1988 article in the University of Virginia law review on the commonwealth’s historic district legislation cited the Smithfield case, but said the General Assembly needs to define “demolition” to include demolition by neglect. 

The article, written by Virginia Epes McConnell, also pointed out that the Smithfield decision was made in a circuit court and carries no precedent outside the jurisdiction. 

Concerning Smithfield’s ordinance requiring maintenance, Riddick said that was added as “maybe wishful thinking.” 

Riddick said one avenue for enforcement may be through the uniform statewide building code.  {/mprestriction}