Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, November 3, 1993 TAG: 9311030292
SECTION: VIRGINIA PAGE: C-5 EDITION: METRO
SOURCE: By ANNE GEARAN ASSOCIATED PRESS
DATELINE: LENGTH: Medium
Because of outcry from property owners opposed to labeling the Brandy Station Civil War battlefield historic, no Virginia site will be listed on historic registers if owners object.
The state Department of Historic Resources revamped its procedure for adding buildings or land to the Virginia and the federal historic registers and plans to formally adopt the new rules by the end of this year.
Rules drafted this summer requires the Historic Resources Office to notify affected landowners that the site is under review. The rules also stipulate that the review will stop if a majority of landowners object.
"I think there is a serious question as to the constitutionality of the action, because it transfers the duty of the state . . . illegally to the individual," said Tersh Boasberg, a Washington lawyer and a leader of the preservationist Brandy Station Foundation.
In effect, the law allows individuals to make decisions about the greater good of the state and means the state abandons its constitutional duty to protect historic resources, Boasberg said.
The Brandy Station Foundation or others could challenge the law in court, but have made no plans to do so, Boasberg said. The case likely would be expensive and lengthy, he said.
Some localities across the country have similar regulations requiring owner consent, but Virginia's is the first statewide law, according to the National Trust for Historic Preservation.
"There is a question whether these laws are a delegation of a legislative act" from the state to individuals, said Julia Miller, editor of the National Trust's law journal, which printed an article on the issue last year. "That is unresolved."
The Department of Historic Resources is holding public hearings on the law this month in Richmond, Alexandria and Roanoke, spokeswoman Margaret Peters said.
The rules already are in effect but won't be official until after the hearings and a public comment period that ends Dec. 6, Peters said.
The new rules stem from the General Assembly's entry into the Brandy Station debate in 1992.
Lawmakers voted then to require that property owners have a vote in historic designations and applied the law retroactively to the Brandy Station case.
About 20,000 Union and Confederate troops clashed at Brandy Station June 9, 1863, in the Civil War's largest cavalry battle.
Many landowners at Brandy Station said historic status would hurt their land values. Although the designation carried no legal restrictions on landowners, they said potential buyers would not want the hassle of building on land deemed historic.
"Under the old regulations, there was no avenue for an owner to stop the listing if they objected," Peters said.
The new law does not go as far as many involved in the battlefield fight would like.
"I think they come closer," said William Chase, a Culpeper County Board of Supervisors member whose district includes most of the battlefield.
"Whether something is historic or not is not a matter of popular vote," said Grae Baxter, president of the Civil War Trust, a nonprofit preservation financing group.
"What gets confused in the context of this law is that whether something is historic is not the issue, the issue is what you do with it."
The Civil War Trust is working to buy some of the Brandy Station land from a developer whose plans to build an industrial park there started the fight in 1989. The development group is in bankruptcy.
Because of the fight, the battlefield was dropped from the National Register of Historic Places in the waning days of the Bush administration last year.
The National Trust included Brandy Station on a list of the nation's 11 most-endangered historic spots earlier this year.
by CNB