Court ruling protects LO's Carman House
Decision keeps historic designation in place for home built in 1857, but its future is still uncertain
Capping off a nearly four-year legal battle, the Oregon Supreme Court ruled last week that the current owners of the Carman House cannot remove the historic designation from Lake Oswego's oldest home.
The unanimous decision could affect more than 3,200 historic properties across the state, but the most direct impact is likely to be felt closer to home, where the court's decision protects the house from demolition but provides no real guidance for its long-term future.
Marylou Colver, president and founder of the Lake Oswego Preservation Society, says this decision will save the oldest house in Lake Oswego. The society led the fight to maintain the historic designation, and Colver says the ruling is a significant achievement for the group.
I never realized the Preservation Society which is fairly young and small would end up in this statewide legal battle, she says.
But for members of the Mary Cadwell Wilmot Trust, which currently owns the house, the decision is a bitter disappointment that they say leaves them with few options to address the houses dilapidated state and recover the value of the property.
Im profoundly disappointed, says Trust member Marjorie Hanson. It took four years to come to this conclusion, and the outcome has no winners in my opinion.
The Supreme Court decision centers on the definition of the phrase property owner in a 1995 Oregon law that prohibits local governments from imposing historic designations on properties against the wishes of the owner.
The law also includes a provision that allows owners to retroactively object and have the historic designation removed if it was imposed prior to passage of the legislation. But according to the court ruling, the right to remove an historic designation under ORS 197.772 applies only to those owners who held title when a local historic designation was first imposed, not to those whose property was already designated at the time they acquired it.
Because the Trust acquired the Carman House after it was designated, the group does not qualify as a property owner within the meaning of state law and cannot remove the historic designation from the Carman House now, the court ruled.
We conclude that the Legislature most likely intended the phrase a property owner to refer only to persons who owned a property at the time a local historic designation was imposed on that property, Chief Justice Thomas Balmer wrote in the unanimous decision.
The justices' Aug. 4 ruling reversed the Court of Appeals and affirmed an earlier decision by the state Land Use Board of Appeals, capping a legal battle that began with a 2013 decision by the Lake Oswego City Council. But because the case moved so far up the legal system, the impact of the final verdict will likely be felt far beyond Lake Oswego.
Restore Oregon, which joined the Preservation Society in taking the case to the state Supreme Court, called the ruling "the most far-reaching legal decision for the field of historic preservation," one that will impact "the fate of 3,200 designated landmarks across Oregon in communities ranging from Portland to Pendleton, The Dalles to Oregon City."
Its a big win, and its been a long haul, says Peggy Moretti, the nonprofits executive director. I know that there were a number of local jurisdictions that were really awaiting this ruling (so it) would then be applied locally there. Theres been very keen interest in this ruling across the state.
In addition to Restore Oregon, nine other organizations, municipalities and state agencies signed on to the case as friends of the court. The National Trust for Historic Preservation, the State Historic Preservation Office and the City of Portland were among those who filed amicus curiae briefs on the societys behalf.
Its not just about one house," Colver says, noting that a 2013 Restore Oregon survey found that only five percent of the historic houses and homesteads that existed in 1865 are still standing today. "This whole case is about whether a subsequent owner can opt out even though they knowingly purchased an historic landmark. (That would) defeat the whole purpose of the designation and of protecting historic landmarks.
Built in 1857 by pioneer couple Waters and Lucretia Carman, the Carman House is one of just 43 remaining historic landmarks in Lake Oswego. The two-story structure sits on 1.25 acres at 3811 Carman Drive, part of a land claim originally signed by President Andrew Jackson.
The Lake Oswego Historic Resources Advisory Board designated the house and an adjacent barn as an historic property in 1990. At the time, the house was owned by the Carmans great-grandson, Richard Wilmot, and his wife, Mary.
The Trust asserts that Richard Wilmot objected to the designation in 1990, but that he was unable to prevent it at the time. The Courts opinion this week acknowledges Wilmots objection, but says he only opposed the inclusion of the adjacent barn, not the designation of the house itself.
In the alternative, the opinion reads, Wilmot argued that because only the Carman House had historic value, any landmark designation should be limited to the house and a smaller parcel of land immediately surrounding it.
Members of the Trust dispute that interpretation and say Wilmot also objected to the designation of the house itself. But the Courts opinion ultimately focuses on the Wilmots apparent lack of action in subsequent years. The historic designation was revised to apply solely to the Carman House after the barn burned down in 1992, and the Courts opinion notes that the Wilmots never invoked the retroactive opt-out clause in ORS 197.772 to challenge the updated designation.
Despite objecting to the citys designation of his property in 1990, the court wrote, Wilmot never sought the removal of the historic farmhouse designation under ORS 197.772 or by any other mechanism.
Richard Wilmot died in 1998. In 2001, Mary Wilmot passed her full ownership of the house to their children, making Marjorie Hanson and her two brothers trustees of the Mary Cadwell Wilmot Trust. Then and now, Hanson says, the family would prefer to sell the property to a developer, who would most likely demolish the house and subdivide the land.
My brothers and I would like to sell still, she told The Review this week. We would like to leave a legacy for our families, and to do that we would need to sell the house so our children and grandchildren could reap some of the reward from the home.
The family has been unable to find an interested buyer because the historic designation prevents demolition, which is why the Trust first invoked ORS 197.772 in 2013 and asked the City of Lake Oswego to remove the designation. The City Council agreed to that request in a 4-3 vote, but the Preservation Society challenged the decision.
The case eventually went before LUBA, which ruled that the phrase property owner in ORS 197.772 referred only to the owner of a property at the time it received its historic designation. The Court of Appeals reversed that decision in February of last year, however, so the Preservation Society petitioned the state Supreme Court in March 2015.
In his petition to the justices, attorney Daniel Kearns argued that the term "property owner" was never intended to include those who subsequently became owners of a property after its historic designation. He also contended that the Court of Appeals' interpretation could "have the effect of gutting" the state's goal of historic preservation.
"Like the Carman House, most locally listed historic properties have been sold and purchased many times since the historic designation," Kearns insisted.
But attorney Christopher Koback, who argued on behalf of the City of Lake Oswego and the Trust, said the law was actually meant to assure that private property was not subjected to non-consensual local historic designations that restricted the use of private property with no local benefits.
Koback said the Court of Appeals was correct in reversing LUBAs decision, and that the court had concluded that the text and legislative history revealed that the Legislature was concerned about correcting impositions of unwanted designations and not (with) the identity of the property owner.
On Thursday, the justices disagreed with Koback in a ruling that acknowledged the potential of the case to impact other historic properties.
If one interprets the right to remove an historic designation as applying to any owner of a property on which a designation was ever imposed, the result could be, as LOPS contends, that most, if not all, of Oregons historic properties are at risk of having their designations, and the protections that accompany that status, removed at any time," the court wrote.
The opinion ultimately concludes, based on the wording of ORS 197.772 and records of the legislative committee meetings in which it was discussed, that the law was not intended to have such a broad impact on the historic designation process, and that the authors intended the retroactive opt-out provision to apply only to the person who owned the property at the time of the designation.
I think theres a big sigh of relief from historic preservationists across Oregon, Colver told The Review. Im just so pleased that it was clear cut. It was the best outcome, from our point of view, that could have happened.
Hanson and her family would disagree with Colvers assessment. The Court ruled that new owners of a historic property cannot remove a prior designation, but Hanson says she and her family are not new owners in a regular sense, because they inherited the property.
They said the house changed ownership. Its never changed ownership, she says. I am the direct descendant of Waters Carman, who build the house."
The Supreme Court decision leaves the family stuck with an inheritance that has been stripped of its value, Hanson says. The Carman House has been substantially altered over the years and has fallen into disrepair. The stairs are too steep, the second story is infested with rodents and the basement is contaminated with mold.
In past interviews, Hanson has said it would take an estimated $500,000 just to bring the home up to code money the family doesn't have.
Theyre not letting us benefit financially from being able to sell it, she says, because its going to be such a huge undertaking for someone to take on.
Colver says that based on reports from contractors who toured the house, the Preservation Society questions whether the repair cost would be as high as the Trust claims, but Hanson says it might not even be an issue of money. The house was built on a hand-laid stone foundation, she says, which is now crumbling.
We had an engineer that came out to assess it, she says. My great-great-grandfather dug out the basement by hand, and he put rock and stone in there because there was no cement. To shore the house up would mean you would need to put the house up on stilts and put a foundation down, and the houses walls are made out of plaster they dont have the integrity to withstand such an operation, I dont think.
Everyone agrees that the Supreme Court decision protects the Carman House from demolition, but it does not specify what will happen to the home from now on.
What I wish for is a good steward, Culver says. That somebody will buy it, restore it, and that it will continue to be a single-family home for the next hundred years or more.
Moretti expressed a similar hope on behalf of Restore Oregon, and even Hanson says she and her family would be happy with that outcome, provided they are able to sell the house at fair market value. In the meantime, she says the Trust will look into the possibility of subdividing the rest of the property while leaving the Carman House standing, and she hopes the City or the Preservation Society will help find a buyer or raise the funding necessary to purchase and restore the house.
Its great to say this is now going to be preserved, but will it? Hanson wonders. If you want this to be something that is enjoyed by the community, then that means that they would need to own it, or if there is indeed a party out there that would want to take this on as a project. It would take a very special buyer.