Superior Court Judge Elaine Bushfan said this week that she is siding with a controversial modernist house in the historic Oakwood neighborhood – a decision that could allow the owners to finish construction and move in.
Bushfan told attorneys by email Tuesday that across-the-street neighbor Gail Wiesner didn’t have legal authority to appeal the Raleigh Historic Development Commission’s 2013 approval for the house. Wiesner could appeal this week’s decision.
Bushfan was also critical of the city’s Board of Adjustment, which put homeowners Louis Cherry and Marsha Gordon in legal limbo when it overturned the historic commission in a 3-2 vote.
“Assuming that Ms. Wiesner did have standing, the BOA used the incorrect standard of review and reweighed the evidence and substituted their own judgment,” Bushfan wrote. “I am reversing the decision of the BOA.”
By law, the Board of Adjustment could only decide whether the commission had a “rational basis” for approving the house.
Cherry, an architect who designed his house, said Bushfan’s decision is a huge relief.
“We are very excited to get this behind us,” Cherry said Thursday. “It’s our hope that this can be something that the Oakwood community and Gail and everyone involved can put behind us and move forward.”
But the battle that has bitterly divided Oakwood neighbors likely isn’t over yet. According to deputy city attorney Dorothy Leapley, lawyers for Cherry and Gordon must now draw up an order for Bushfan to sign. Once she completes the ruling, attorneys for Wiesner and the Board of Adjustment will have 30 days to appeal the decision.
Wiesner couldn’t be reached for comment Thursday, and her lawyer declined to comment. But she had earlier told reporters that she would appeal a Superior Court loss, continuing her fight against what she considers a “garishly inappropriate” design for a historic neighborhood.
Don Becom is an Oakwood resident and a leader of the Oak City Preservation Alliance, which supports Wiesner’s view. He says Wiesner would be well within her rights to appeal.
“If a neighbor right across the street doesn’t have standing, who would?” Becom said. “If the guidelines are going to be ignored, what protections do we have as a historic district?”
Bushfan’s ruling ends the latest chapter of a neighborhood battle that has stretched on for a year. Cherry and Gordon received historic district approvals in October 2013, after a heated public hearing that drew a dozen or so neighbors.
Cherry, who designed the Cameron Village Library and other local buildings, said his design references Craftsman-style homes and other aspects of Oakwood. But some neighbors argued that it doesn’t “blend in” with century-old homes, and its side-facing front door and unpainted wood siding create an anomaly in Oakwood.
With permits in hand, Cherry and Gordon began construction while Wiesner took her case to the Board of Adjustment. The homeowners say they only learned about the risks of building after they poured a foundation and spent $100,000 on building materials.
In February, the Board of Adjustment overturned the approval, effectively halting construction. Board members said the historic commission ignored its own guidelines and would seem to allow any design in Oakwood.
With demolition looming as a possible outcome, the case headed for Superior Court. Along the way, the controversy made headlines around the world in The New York Times, The London Daily Mail and NBC’s “Today” show.
The court case – heard during two days in late August – pitted city attorneys representing the historic commission against a city-paid attorney for the Board of Adjustment. Along with the lawyers for Wiesner and the homeowners, they debated for hours and handed Bushfan reams of documents to review.
Bushfan’s ruling could have an impact on residential construction and historic preservation well beyond the confines of Oakwood.
Preservation North Carolina President Myrick Howard has supported the modernist house, and he said the ruling could help prevent similar battles in the future throughout the state.
“It’s really a dangerous precedent if you let people appeal because they don’t like the house across the street,” Howard said, adding that an irate neighbor must prove impacts to property value.
Howard was involved in drafting state legislation that created the historic district guidelines decades ago. The rules sent appeals to the Board of Adjustment to avoid the political concerns of a city council, he says.
“We did not want them to start making design decisions,” Howard said. “They should just simply be reviewing the record and making sure the commission did its job appropriately.”
Opponents say Bushfan’s decision could pave the way to more modernist homes and possibly even the demolition of smaller historic houses.
“Because of our proximity to downtown, we feel that especially our smaller homes and bungalows are at risk,” Becom said, adding that his group wants Raleigh to strengthen historic district guidelines.
“As the price of housing goes up, the value of the land escalates above the value of the homes. It makes them targets for builders and developers.”
But Howard dismissed that concern, pointing to rules that prevent property owners from replacing historic structures with larger buildings. He says new construction will likely be limited to vacant lots, such as the one Cherry and Gordon bought.
“When you look at Oakwood, there are not that many vacant lots,” Howard said. “This isn’t going to open the floodgates for modern design to come in.”
He said the appeal of historic district designations has taken a hit from the Oakwood controversy. Residents of historic areas might decide the protections are not worth the hassle of neighborhood legal battles.
“I think it’s going to be a good while before we see another historic district established in North Carolina because of the bad publicity,” Howard said.