There's treasures in them thar hills...but will they be saved? : enhanced historic preservation in Fredericksburg, Texas

UNIVERSITY^

PENNSYLVANIA.
UBKARIES

THERE'S TREASURES IN THEM THAR HTLLS...BUT WILL THEY BE SAVED?:
ENHANCED HISTORIC PRESERVATION IN FREDERICKSBURG, TEXAS

William Eric Breitkreutz

A THESIS

Historic Preservation

Presented to the Faculties of the University of Pennsylvania in
Partial Fulfillment of the Requirements for the Degree of

MASTER OF SCIENCE

1996

3ervisor / Reader /

Supervisor
lohnyC. Keene

Nellie L. Longsworth

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UNIVERSITY

OF

PENNSYLVANIA

LIBRARIES

ACKNOWLEDGEMENTS

I would like to express my sincere gratitude to my thesis advisor, Dr. John C. Keene, for all
the knowledge he has imparted, the suggestions he has made, and the support he has given to
me throughout this long and trying process. My thanks also go to Nellie L. Longsworth, who
gave me the initial encouragement to proceed with my idea to combine my love of historic
preservation with my love of place. Thank you, as well, Nellie, for "making me think" and
keeping me focused on my true objectives.

I am also forever indebted to the many people in Fredericksburg, Gillespie County, San
Antonio, Austin, and the rest of Texas, for their kindness, cooperation, and patience.
Particular thanks go to Stan Klein, Shelley Britton, Michael Penick, Karen Oestreich, Jay
Weinheimer, and the members of the Gillespie County Historical Society in Fredericksburg;
Bemice Weinheimer in Stonewall; Kathryn Nichols and Carolyn Scheffer at the Texas Parks
and Wildlife Department; and Frank Gilbert at the National Trust for Historic Preservation.
My highest admiration and extreme gratitude goes to Dwayne Jones at the Texas Historical
Commission, for showing such an interest in my project and giving me so much of his time,
energy, and expertise.

Finally, I would like to thank Milton Marks, Patrick Hauck, Beth Miller, et al. , at the
Preservation Coalition of Greater Philadelphia and the Mid-Atlantic Regional Office of the
NTHP, as well as Geoff and Alexis Anderson, for coming through "in the clutch" when my
dinosaur of a computer died. Most of all, I would like to thank meine Familie, Vernon,
Aline, and Claire Marie Breitkreutz, and Cathleen Lambert for all the support they have given
and all the caring they have shown me from the very beginning.

Diese These ist zur Erimerung an Caspar und Christian Ressmann von Friederichsburg,
Texas, und alle Adelsverein Ansiedleren des Huegellandes von Texas widmet. Sie ist auch zur
Erinnerung an Emil und Elsie Ressmann von Goliad County Texas widmet. Ruhen in Frieden,
Grosseltern.

TABLE OF CONTENTS

Introduction page 1

Chapter One: Fredericksburg, Texas - Past and Present 5

I. A Brief History of Fredericlcsburg 5

II. A Brief Description of Fredericksburg's Historic

Built Environment g

III. The Problem Caused by Tourism and the Unsuccessful

Attempts at Solving These Problems 10

IV. Potential Opposition to Strengthening the Regulatory

Power of Fredericksburg's Historic Preservation Ordinance 18

V. Another Problem with Tourism and Growth - The Dangers

of Sprawl 21

Chapter Two: Proposed Amendments to the Historic Preservation Ordinance 23

I. Introduction 23

n. Preamble and Section 12.201 26

Preamble 26

Section 12.201 28

Analysis and Commentary 29

m. Sections 12.202-12.203 35

Section 12.202 35

Section 12.203 38

Analysis and Commentary 45

IV. Section 12.204 63

Section 12.204 63

Analysis and Commentary 64

V. Sections 12.205-12.208 70

Section 12.205 70

Section 12.206 72

Section 12.207 75

Section 12.208 75

Analysis and Commentary 75

VI. Sections 12.209-12.212 86

Section 12.209 86

Section 12.210 94

Section 12.211 96

Section 12.212 97

Analysis and Commentary 98

VII. Sections 12.213-12.215 117

Section 12.213 117

Section 12.214 118

Section 12.215 119

Analysis and Conunentary 1 19

Vra. Sections 12.216-12.217 I24

Section 12.216 124

Section 12.217 I25

Analysis and Commentary 126

IX. Section 12.218 130

Section 12.218 I30

Analysis and Commentary 130

X. Section 12.219 132

Section 12.219 132

Analysis and Commentary 133

XI. Conclusion I39

Chapter Three: Recommendations for Necessary Amendments to the City's
Tax Code, Signage Ordinance, Zoning Ordinance, Building Code,
and Fire Safety Code 142

I. A Temporary Amendment to the Hotel Occupancy Tax 143

n. A Temporary Amendment to the Signage Ordinance 148
m. Necessary Changes to the City of Fredericksburg Zoning

Ordinance 151
IV. Necessary Changes to the City Buildmg Code and Fire

Safety Code 157

Chapter Four: The Problem with Sprawl and Recommendations for Helping

Curb Sprawl's Effects and Preserve the Historic Landscape 160

I. Background Information 160

II. The Proliferation of Sprawl and the Problems It Causes 162
ni. A Recommended Long Term Solution to the Problem of Sprawl

and the Loss of the Historic Scenic and Agricultural Landscape 168

IV. Texas Law's Limit Otherwise Viable Short Term Solutions to
Protecting Area Agricultural Land and Scenic Hills 171

V. Amendments to City PUD Regulations to Preserve the Hills 175

VI. Amendments to City Subdivision Ordinance to Encourage Hill
Preservation I79

VII. Prohibitions on the Development of Steep Hillsides 185

VIII. The Encouragement of Conservation Easement Donation 188

Chapter Five: Recommendations for Future Amendments to the City Historic

Preservation Ordinance 192

I. Additional Members of the Historic Review Board and Fuil-Time

Status for the City Historic Preservation Officer 192

II. The Creation of Application Fees for Certificates of
Appropriateness Applications I95

III. Municipal Tax Incentives 198

IV. Full Application of Ordmance to Properties Nominated for
Designation 203

Chapter Six: Recommendations Concerning the Creation of A German-Texas

Hill Country Heritage Area 208

I. Explanation and Analysis of a "Heritage Area" 208

II. The Benefits of the Creation of a Heritage Area for the
German-Texas Hill Country 210

III. The Potential Danger of the Creation of a Heritage Area 213

Conclusion 218

Appendix A: Current Fredericksburg Historic Preservation Ordinance 232

Appendix B: Temporary Amended Historic Preservation Ordinance 239

Appendix C: City of Fredericksburg Hotel Occupancy Tax 269

Bibliography 273

INTRODUCTION

This thesis is an exercise in utilizing the various tools and techniques involved in the
practice of historic preservation planning, as this author has learned the practice in pursuit of a
Master of Science Degree in Historic Preservation at the University of Pennsylvania. It is
primarily concerned with the formulation of an historic preservation ordinance for the City of
Fredericksburg, Texas, under the laws governing municipal historic preservation regulation in
the State of Texas and under the requirements for satisfying certified local government standards
with such an ordinance set by the Texas Historical Commission (THC). However, the historic
preservation ordinance, along with the recommended concomitant and long-term changes to the
municipal tax code, signage ordinance, zoning ordinance, building code, and fire safety code,
subdivision ordinance, planned unit development regulations, and comprehensive plan of the city,
is also concerned with balancing the necessity for adequate levels of protection of the historic,
cultural, architectural, and scenic/natural resources of the city with the need to allay the fears and
satisfy the needs and desires of the citizens of the community. Thus, this thesis is not merely an
academic application of several different preservation plaiming tools in a theoretical scenario
removed from the harshness of reality. Rather, it is ^practical exercise in applying and adapting
the theory of preservation planning and the rigidity of preservation law to the difficult realities
of the current political situation in a small municipality in rural Texas.

The City of Fredericksburg, Texas, offers an excellent opportunity to put theory and
methods to the test of reality because of the combination of the need for enhanced preservation
regulations and the challenging political opposition to the extension of such regulations which
exist at this time in the city's history. As outlined in the brief historical sketch of Fredericksburg
and the current status of its physical and political environment in Chapter One, the city contains

1

a large number of historic, cultural, and architectural resources recognized as significant at the
local, state, and national levels. However, the city government acknowledges that the
municipality's current historic preservation ordinance is simply too weak to withstand the
increasing economic pressures being placed upon Fredericksburg's historic resources. The
problem is, how does one formulate an ordinance that substantially enhances the regulations on
designated properties and then convince a skeptical and potentially hostile constituency that these
regulations are really in their best interest?

Chapter Two offers the solution this author has to the problem by presenting a new
ordinance that amends the old one in its entirety. Each part of the chapter contains portions of
the amended ordinance proposed for adoption, followed by an analysis and commentary on how
the provisions of the ordinance given satisfy Texas preservation law and THC ordinance
standards, how they satisfy the preservation needs of Fredericksburg's significant resources and
the major concerns of the citizens, and how it can be shown to the citizens that these provisions

are desirable.

Parts n through V of Chapter Two deal primarily with the establishment of the
administrative mechanisms of the ordinance (e.g. the Historic Review Board, the City Historic
Preservation Officer, and the process for the designation of historic resources). Parts VI through
X, on the other hand, are concerned with the regulatory and enforcement aspects of the proposed
amended ordinance (e.g. the restrictions imposed under certificate of appropriateness
requirements, the prohibition of demolition by neglect, and the establishment of penalties and
remedies).

Since local historic preservation regulation does not exist in a vacuum, but is mstead
connected to and affected by many other aspects of local government law and practice, it is
necessary to also propose amendments to Fredericksburg's other ordinances, codes, and municipal

plans. Chapter Three, Part I, deals with a proposed amendment to the city's hotel occupancy tax
which could, under state tax law, result in the allocation of revenues to support certain aspects
of the amended ordinance's preservation programs in lieu of somewhat higher direct taxation on
the citizens of Fredericksburg themselves. Parts II through IV of Chapter Three concern changes
to the city signage ordinance, zoning ordinance, building code, and fire safety code, offering
methods and recommended courses of action that should be used to bring the regulations and aims
of these respective regulations and those of the amended historic preservation ordinance into
rough conformity with one another. This conformity, in turn, will allow the regulations to work
toward achieving rather than defeating the immediate and long term goals of preservation in
Fredericksburg.

Chapter Four focuses on how Fredericksburg's problems with sprawl directly affect the
cause of historic preservation within the city itself and what can be done to combat sprawl and
save the immediate areas' historical landscape and context. Specific, long-term and short-term
recommendations are given that involve amendments to the city's comprehensive plan, subdivision
ordinance, and plaimed unit development regulations, as well as an education campaign on the
benefits of easement donation, all of which are tempered by both the prevailing political sentiment
against land use regulation and the realities of the limited municipal regulatory powers granted
to municipalities in their extraterritorial jurisdictions by state law.

Recommendations for future amendments to the new ordinance proposed in Chapter Two
that will be necessary to deal with the anticipated needs and problems of preservation regulation
in Fredericksburg in the years to come are presented in Chapter Five. Chapter Six then addresses
the potential benefits to Fredericksburg and other communities in the Texas Hill Country that
could result from the formation of a heritage area for the communities linked by the Germanic
culture and a common history within the Hill Country. However, the last part of the chapter also

issues a stem warning of the threat that would exist to the historic resources of Fredericksburg
and the other communities were they to prematurely engage in the promotion of the common
heritage area without the highest level of protection for all of their respective, significant
resources first in place. Finally, a brief conclusion offers a summary of the major aspects of each
previous chapter and closing thoughts on the thesis.

The ideas offered in this thesis are the result of almost an entire year of research, during
which time this author conducted interviews with members of Fredericksburg's Historic Review
Board, city govermnent, and local historical organizations, as well as with city employees
involved in historic preservation regulation in San Antonio, Austin, and New Braunfels, Texas;
Philadelphia, PA; and Washington, D.C.. Input from interviews with employees of the Texas
Historical Commission, the Texas Parks and Wildlife Department, the National Trust for Historic
Preservation, and several other local, state, and national historic preservation and preservation-
related organizations also has been incorporated in this thesis. Information taken from municipal
historic preservation ordinances (primarily those of several Texas cities, but also those of cities
in other states); Texas and federal historic preservation, land use, and tax laws; and Texas and
federal court decisions augmented the ideas received from personal interviews. All of the relevant
ideas from these many sources have been put together to formulate a viable mechanism for better
protecting the significant historic, cultural, architectural, and scenic/natural resources of
Fredericksburg, Texas.

CHAPTER ONE: FREDERICKSBURG, TEXAS - PAST AND PRESENT

I. A Brief History of Fredericksburg

Fredericksburg, Texas, is a small town of approximately 6,700 inhabitants located
northwest of San Antonio and west of Austin in the rugged Pedemales River Valley of an area
known as the Texas Hill Country (see the map on page 7). It was founded by Baron Ottfiried
Hans von Meusebach, the newly appointed leader of the Adelsverein (a partnership of German
noblemen who sponsored German emigration to the Republic of Texas), who led a group of
German settlers from the crowded first settlement of New Braunfels to establish themselves
around Baron's Creek in April of the year 1846. The new colonial settlement was named
"Friederichsburg" in honor of Prince Friederich of Prussia, and each original male settler was
given a plot of land in the town itself to go with the agricultural land he was granted in the
surrounding area. Baron von Meusebach signed a peace treaty with the Comanche Nation
which dominated the area in March of the following year, thereby allowing the German settlers
to concentrate on establishing their economic pursuits and constructing their outlying homesteads
and various buildings in the town itself.^ Later, in 1848, Fredericksburg became the county
seat of newly created Gillespie County.^

^ Glen E. Lich, The German Texans (San Antonio, Texas: The University of Texas
Institute of Texan Cultures at San Antonio, 1981), p. 53.

^ Ibid., pp. 54-56.
^ Ibid., p. 56.

Although the Pedemales River, Baron's Creek, and other spring-fed creeks and streams

supplied the settlers with an abundance of fresh water, the valley's rocky land did not produce

an overabundance of healthy crops. Thus, many early settlers supplemented their meager harvests

of com and their vegetable gardens by raising goats, sheep, and cattle. Mohair and wool soon

became prime agricultural products of the area, which were exported to San Antonio in exchange

for manufactured goods. The settlers also discovered that peach trees flourished in the rugged,

acid soil, and so peaches helped supplement the settlers' diets.^ Peaches were later to become

a cash crop for the area around Fredericksburg, once the automobile ended the area's isolation

and connected it with the Texas produce market. However, before the automobile, the

ruggedness of the hills and the lack of good roads kept the community relatively separated from

the outside world.

With their dominant peasant ethos, most Germans [in the Texas Hill Country] put
enormous labor into their farms, but it took a century for most of them to
prosper. They remained an isolated, ingrown community, healthy enough in
themselves [and] stubbornly self-reliant."

Despite the area's isolation, Fredericksburg and Gillespie County produced two figures of
national importance in the twentieth century. Chester W. Nimitz, Admiral of the U.S. Pacific
Fleet during World War II, was bom and raised in Fredericksburg, while U.S. President Lyndon
Baines Johnson was bom and grew up on a ranch in Gillespie County near the little community
of Stonewall.

^ T. R. Fehrenbach, Lone Star: A History of Texas and the Texans. (New York: Collier
Books, 1985), p. 295.

Ibid.

MAP OF FREDERICKSBURG, TEXAS, AND SURROUNDING AREA

MI.E3
0 10 20 30

FREDERICKSBURG
and
SOUTH CENTRAL TEXAS REGION

n. A Brief Description of Fredericksburg's Historic Built Environment

Fredericksburg's century of isolation and poverty resulted in the preservation and
dominance of the Germanic language and culture in the city well into the twentieth century.
These two factors also allowed a large number of Fredericksburg's original through early
twentieth century buildings and structures to survive relatively unchanged from the time of their
creations, because of the lack of development pressure and money to expand or modernize these
buildings and structures. A surprising number of original "Sunday Houses" of native German
fachwerk construction (a half-timbered method of construction using Hill Country limestone
blocks to infill and support a post-and-beam structure) survive intact along Fredericksburg's
streets. These "Sunday Houses" were constructed by area ranchers on their town lots as dwelling
places while they were in town to shop on Saturdays and then go to church on Sundays. Thus,
not only do these "Sunday Houses" exhibit Germanic construction techniques adapted to Texas
building materials, but they also serve as visible reminders of important Germanic cultural
practices carried out by the early settlers of the community. These houses help to demonstrate
as well the historically important role Fredericksburg has played and continues to play as the
center of rural agricultural life in the valley.

Many commercial and residential limestone structures with a mixture of Germanic and
Victorian architectural elements built from the 1870s through 1890s also exist around the early
fachwerk structures. Because of this, one can directly trace the evolution of the German settlers'
gradual adaptations of traditional building techniques to meet the differing climactic needs of
Texas and to produce buildings that attempted to reflect the latest popular building styles of the
times. A small number of relatively large commercial buildings built in the 1910s and 1920s are
interspersed between the predominantly nineteenth century historic commercial buildings along

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Main Street's historic central business district as well. Many of these early twentieth century
buildings are built out of cast concrete "Basse" blocks made to look like limestone blocks and
produced by the local Basse Concrete Company as a cheaper, aesthetically pleasing alternative
to the limestone blocks traditionally used to construct buildings in the area. Accordingly, yet
another evolution in the built environment of Fredericksburg is preserved in the form of new
building materials cast to look like the old, thereby maintaining a visual continuity with the past.

Michael Penick, member, Fredericksburg Historic Review Board, conversation with
author, Fredericksburg, Texas, 30 August 1995.

III. The Problems Caused by Tourism and the Unsuccessful Attempts at Solving These
Problems

Fredericksburg remained a relatively small, quiet community for much of the twentieth
century, continuing on as the government and commercial center for the ranching and orchard
operations in Gillespie County. However, about the time of the Bicentennial of the United States,
when Americans began focusing on the varied aspects of their cultural and architectural past,
Fredericksburg's strong Germanic culture, its scenic beauty, and its large collection of well-
preserved, historic architectural structures began to attract significant numbers of tourists to the
city.^ Active promotion of the city's quaint Germanic architecture and German festivals, its
scenic beauty, and its peaches by the Chamber of Commerce and local businesses helped increase
tourism to Fredericksburg, so that today it plays a major role in the overall economy of the city.

Fredericksburg's charming built and natural environment, its small town appeal, and its
links via state highways to Austin and San Antonio have attracted many new residents to the city
who are willing to endure the hour-and-a-half commute to San Antonio or the two hour commute
to Austin in order to enjoy the city's high quality of life. The growing tourist industry also is
attracting entrepreneurs to the area eager to capitalize on the city's increasing popularity as a
tourist destination. However, the tremendous increases in tourism and the growth the city began
to experience in the late 1970s and early 1980s started to take their tolls on the very historic,
cultural, and architectural resources that were attracting tourists and new residents to the city in
the first place.

^ Karen Sue Oestreich, former member, Fredericksburg Historic Review Board; Office
Manager, Sunset Realtors, Fredericksburg, Texas, conversation with author, Fredericksburg,
Texas, 29 August 1995.

10

During the early to mid-1970s, the state designated many of Fredericksburg's historic
cultural and/or architectural resources as Recorded Texas Historic Landmarks.^ Furthermore,
a long, narrow area of the city that parallels Main Street and contains much of the area of the
original settlement of the community received designation as an historic district within the
National Register of Historic Districts in 1970.^^ Several other significant historic, cultural,
and architectural resources in the city but outside the National Register Historic District also
received registration on the National Register of Historic Places. Unfortunately, these state and
federal designations were powerless to stop private owners of some of the properties registered
under these designations from making detrimental alterations to the historic character of these
properties. ^ As a result of the detrimental changes being made by some business and
residential owners to some of Fredericksburg's historic properties and the lack of regulations to
stop such actions, members of the Gillespie County Historical Society and the Fredericksburg

Sharon Buford, Secretary, Gillespie County Historical Society, conversations with
author, Fredericksburg, Texas, 25 &. 28 August, 1995.

10

Ibid.

Inclusion of a property within historic districts registered on the National Register of
Historic Places does not protect the property from demolition, alterations, or additions carried
out on the property by individuals or private organizations, as long as they do not receive
federal funds or contract with the federal government in order to carry out such change to the
property. Nor does Recorded Texas Historic Landmark designation confer protection to a
property. Persons wishing to relocate, demolish, or change the exterior appearance of a
Recorded Texas Historic Landmark must notify the Texas Historical Commission at least sixty
days before the desired change is to take place. Once notified, the Commission may then
negotiate for and encourage the preservation of the Landmark, but the Commission is
ultimately powerless to stop the change from occurring. Texas Historical Commission, Texas
Preservation Handbook for County Historical Commissions (Austin, Texas: Texas Historical
Commission, 1994), pp. 40-43.

11

Heritage Foundation convinced the City Council to enact an historic preservation ordinance for
the city. *^

The initial historic preservation ordinance met with strong opposition from the citizens
of Fredericksburg. ^^ The National Park Service's condemnation of agricultural properties held
by several original Adelsverein immigrant families for incorporation into the Lyndon Baines
Johnson National Historic Park in the 1970s embittered many Fredericksburg residents against
the idea of any form of government regulation of historic private property. *'* Citizens objected
in particular to the provision that required owners of designated properties to receive permission
from the proposed historical commission before they could paint their houses or businesses a
different color from what they were when designated. ^^ In fact, many citizens viewed the
regulations requiring historic commission approval before changes would be allowed to designated
properties as direct violations of individuals' property rights, and they angrily denounced these
regulations at the public commentary session. Many citizens also raised strong concerns that the
values of their designated properties would significantly decrease because of the "draconian"
regulations placed upon them by the proposed ordinance.^"

^^ Sharon Buford, Secretary, Gillespie County Historical Society, conversations with
author, Fredericksburg, Texas, 25 & 28 August, 1995.

^^ Karen Sue Oestreich, former member, Fredericksburg Historic Review Board; Office
Manager, Sunset Realtors, Fredericksburg, Texas, conversation with author, Fredericksburg,
Texas, 29 August 1995.

^^ Jay Weinheimer, former City Attorney, City of Fredericksburg, Texas, conversation
with author, Fredericksburg, Texas, 30 August 1995.

^^ Karen Sue Oestreich, former member, Fredericksburg Historic Review Board; Office
Manager, Sunset Realtors, Fredericksburg, Texas, conversation with author, Fredericksburg,
Texas, 29 August 1995.

16

Ibid.

12

The public outcry against the initial historic preservation ordinance led to a substantial
weakening of the regulatory powers granted to the Historic Review Board in the revised
ordinance, which was adopted by the City Council in 1987.^^ Under the 1987 ordinance, the
Historic Review Board is a purely advisory body, with no power to enforce its recommendations
once initial reviews of proposed changes to or demolitions of historic landmarks or buildings or
structures within the historic district have been made. ° An owner of a designated property
or his/her representative must simply be present at the hearing on the work proposed to be done
to the property in order to obtain a certificate of review from the Historic Review Board. After
the hearing on the certificate of review, the owner of the property in question is free to do any
detrimental work he/she pleases to his/her designated property, as long as the work conforms to
all other applicable regulations.^^

Thus, the weakness of the present ordinance has allowed many of the city's historic
buildings to be altered in ways which compromise their historic structure or character. Buildings
constructed during the 1910s and 1920s and located within Fredericksburg's only municipally-
designated historic district^^ now have "Germanic-looking" architectural details added to them
in order to make the businesses inside of them more attractive to the tourists coming to
Fredericksburg seeking "quaint" German-Texas architecture.'^^ These buildings, because of

^"^ Ibid.

^^ See subsection 12.204(e), p. 12-7, and Section 12.205, pp. 12-8 - 12-9, in Appendix
B.

^^See Section 12.205 in Appendix A, pp. 12-8 - 12-9.

^^ This singular historic district exists within the same exact boundaries as those of
Fredericksburg's National Register Historic District.

^^ Stan Klein, AIA, member, Fredericksburg Historic Review Board, conversation with
author, Fredericksburg, Texas, 28 August 1995.

13

their additional, nonhistorical elements, give tourists and natives alike a false sense of the history
and historic development of architecture within the city, all in the name of increased profits from
the tourist trade.

Similarly, the inability of the Historic Review Board to even prohibit proposed new
construction or relocation of structures within the historic district which intentionally tries to pass
itself off as historic has led to the construction of new buildings that detract from the true historic
and cultural character of the city's recognized historic area. Log cabins from East Texas and
even Tennessee are being brought in and advertised as "historic bed and breakfasts. " While these
cabins may in fact be old, their presence within the historic district without any signage
explaining their relocation and with the use of such advertising again gives tourists and natives
alike a false sense of the historical development of the city.^^ Even the building in which
Admiral Chester W. Nimitz was bom and grew up in is not immune from tarnish by pseudo-
historic new construction. The current owner of the property built a two-story bed and breakfast
facility directly behind Admiral Nimitz's birthplace that is an almost exact replica of an historic
two-story, 1850 limestone house which stands further down on Main Sfreet. The sign which
advertises this bed and breakfast pictures both the new, two-story structure and the circa 1866
fachwerk house of Nimitz's birth over the caption "Historic Nimitz Property. "^^ Once again,
the history and architectural development of Fredericksburg is being grossly distorted by false
advertising and fake construction, and the Historic Review Board under the current ordinance is
powerless to stop such actions.

^^ Karen Sue Oestreich, former member, Fredericksburg Historic Review Board; Office
Manager, Sunset Realtors, Fredericksburg, Texas, conversation with author, Fredericksburg,
Texas, 29 August 1995.

^^ Elise Kowert, Old Homes and Buildings of Fredericksburg (Fredericksburg, Texas:
Fredericksburg Publishing Company, 1977), p. 30.

14

The lack of municipal designation of any of the substantial number of significant historic,
cultural, and architectural resources of the city outside of the National Register Historic District
as historic landmarks or as parts of historic districts has allowed the detrimental alteration of
these properties to proceed without any form of the public accountability at least offered under
the current ordinance. One example of the detrimental alterations allowed because of this lack
of designation is seen in the current condition of the Dambach-Besier House, built circa 1867 of
native limestone block, on East Main Street, just outside of the boundaries of the city's only
historic district/"^ The entire rear wall of the two story structure has been removed so that
the recently constructed, overshadowing, three story Sunday House Hotel could be attached to
the house from the rear. The Dambach-Besier House now serves as the hotel's restaurant. A
similar travesty has also occurred to the one story fachwerk Mueller-Petmecky House, circa 1846-
1850, located on State Highway 87 going toward the Hill Country town of Kerrville. It now
serves an office area, as well as a eye-catching, "quaint Germanic" advertisement to passing
tourists for the new motel to which it is attached from the rear. Thus, with the town's steady
growth in tourist visitation and the resulting economic attractiveness of starting new tourist-
oriented businesses in historic or pseudo-historic buildings, the destruction of Fredericksburg's
historic built environment continues to apace, and the Historic Review Board under the current
ordinance is powerless to stop it.

To its credit, the Historic Review Board has used its powers of persuasion, friendship,
and neighborly influence, the only powers it is allowed under the ordinance, to dissuade owners
fi-om actions that would be detrimental to the characters of their designated properties. In fact,
the Board has been quite successftil in staving off many significantly destructive actions proposed
by native Fredericksburg owners of designated properties. However, members of the Historic

24/&j^.,p. 28.

15

Review Board complain that they have no clout whatsoever with newcomers to Fredericksburg,
who have no icnowledge of or respect for the history and traditional Germanic architecture of the
city. These owners refuse to listen to the members' pleas not to build their planned commercial
buildings, saying that they know what German architecture should look like. ^ The result has
been the historically inaccurate and detrimental infill described previously. Thus, as more and
more outsiders come into Fredericksburg to live and/or create new tourist-oriented businesses,
the risks to Fredericksburg's significant historic, cultural, and architectural resources greatly
increase.

Interestingly, the City Council, which previously has been hesitant to designate properties
outside of the current municipal/National Register Historic District for fear of charges of
excessive government regulation by the owners, has finally agreed to authorize the strengthening
of the city's historic preservation ordinance through amendment. ^° Evidently, the near
demolition of an historic building within Fredericksburg's historic district made the Council

realize the serious threat of detrimental change many of Fredericksburg's historic resources are

11
facing and the current ordinance's blatant inability to eliminate such threats.'" However,

Mr. Stan Klein, the Historic Review Board member in charge of drafting these proposals (because

of his extensive qualifications through past experience as an employee of the Texas Historical

Commission), will be unable to carry out this responsibility at any time in the near future. °

^^ Stan Klein, AIA, member, Fredericksburg Historic Review Board, conversation with
author, Fredericksburg, Texas, 28 August 1995.

26

Ibid.

^ ' Wallace Britton, City Inspector, City of Fredericksburg, Texas, conversation with
author, Fredericksburg, Texas, 29 August, 1995.

^° Stan Klein, AIA, member, Fredericksburg Historic Review Board, conversation with
author, Fredericksburg, Texas, 28 August 1995.

16

Consequently, any potential changes to the Fredericksburg historic preservation ordinance are on
hold until further notice.

17

IV. Potential Opposition to Strengthening the Regulatory Power of Fredericksburg's Historic
Preservation Ordinance

Any attempt to strengthen the regulatory power of the current historic preservation
ordinance is likely to meet with stiff opposition from the citizens of Fredericksburg, as did the
initial ordinance proposed in the mid-1980s. Feelings against government regulation of property
rights are still running high among citizens of Fredericksburg, especially in light of recent
property rights battles between state and federal government agencies and local citizens. The
Environmental Protection Agency's recent withdrawal of habitat protection regulations for the
endangered Golden Cheeked Warbler, a native bird of the Texas Hill Country, is a sweet victory
for local citizens in a long and bitter struggle over required practices which were felt would
destroy the ranching industry in the area. "

Similarly, area residents recently fought off the routing of a major crude oil pipeline by
a private corporation through Gillespie and other Hill Country counties which would have used
the State of Texas' powers of eminent domain to force landowners to allow the pipeline to be laid
underneath their prime grazing and orchard lands. Finally, as testimony to the strong feelings
against government regulation of private property that are present in Texas in general, Texas
recently passed a stringent anti-regulatory takings law. This law requires that many government
actions that result in reductions of greater than twenty-five percent of the fair market value of
private property shall be deemed a regulatory taking. Fortunately for the cause of historic
preservation, zoning regulations were excluded from the takings law.'^^

29

Jay Weinheimer, former City Attorney, City of Fredericksburg, Texas, conversation

with author, Fredericksburg, Texas, 30 August 1995.

30

W. Dwayne Jones, Preservation Planner, Texas Historical Commission, conversation

with author, Austin, Texas, 31 August 1995.

Therefore, if the attempt to amend the historic preservation ordinance to strengthen the
regulations on designated properties is to be successful, the amended ordinance must be written
with many obvious safeguards against the possibility of excessive and economically deprivational
restrictions being imposed on historically designated properties. Proponents of the amended
ordinance must then be able to use these safeguards included in the thesis to overcome citizen's
perceptions that such regulations are excessive government restrictions on private property and
therefore violations of private property rights. Lobbyists for the amended ordinance must also
be able to convince owners of designated property or property eligible for designation under the
amended ordinance that designation and the accompanying restrictions will not decrease the
property values, but will probably have the opposite effect. Finally, local preservationists must
convince a substantial number of citizens, particularly owners of tourist-oriented businesses, that
although the amended ordinance prohibits many actions that might increase tourist patronage of
establishments in historic buildings and structtires, these prohibitions are designed to protect and
preserve the many historic, cultural, and architecttiral resources that motivate many of the tourists
to come to visit Fredericksburg in the first place and that greatly contribute to the high quality
of life enjoyed by residents.

Hope for success concerning the endeavor to enact such an amended historic preservation
ordinance does exist in light of a poll of Fredericksburg citizens taken as part of the process of
creating Fredericksburg's new comprehensive plan. At a public "visioning workshop" held in
October of 1995 and concemmg the formulation of the comprehensive plan, the citizens in
attendance ranked the "history" and the "quality of life" as the fourth and fifth "best things,"
respectively, that they liked about living in Fredericksburg. ^1 if the historic preservation

31

Hankamer Consulting, Inc., "Results of Visioning Workshop, October 17, 1995."

(Austin, Texas: Hankamer Consulting, Inc., 1995, photocopy), p. 2.

19

ordinance is amended in such a way that it balances the regulatory provisions necessary to
adequately preserve the city's designated resources with the need to calm the fears and satisfy the
desires of residents, and if preservationists can actively promote the balance offered by the
proposed amended ordinance and show how the ordinance promotes and protects Fredericksburg's
cherished history and quality of life, then the ordinance has a strong chance at being adopted by
Fredericksburg's City Council.

20

V. Another Problem with Tourism and Growth - The Dangers of Sprawl

The tremendous increases in tourism and the population growth experienced by
Fredericksburg over the last twenty years have been detrimental to both the historic built
environment of the city and to the scenic landscape and the traditional agricultural lands which
surround the city. Many tourists and new residents to the city are attracted in part by
Fredericksburg's rural setting, its famous peach crops, and the scenic beauty of its surrounding
hills. However, two of the hills closest to the city are now covered with houses, thereby
destroying their scenic beauty and helping to diminish the natural beauty that is part of the high
quality of life offered by the city to its residents. Many other residential and commercial
subdivisions are springing up or being planned in many places immediately around the city limits,
as sprawl increasingly creeps from the edges of the city to eat up more and more traditionally
open agricultural land every year.

Historic preservation in Fredericksburg should not be channeled into just working to
protect the historic, cultural, and architectural resources within the city limits. It should also
strive to preserve and protect the ranch and orchard lands that have always surrounded the city
and made it the center of an agricultural conmiunity. Fredericksburg preservationists should also
work toward preserving the scenic beauty of the rugged hills that isolated and protected
Fredericksburg's significant resources for so long. Both the agricultural land and the scenic hills
that surround the community greatly influenced the creation of the historic, cultural, and
architectural resources of the city. They should therefore be seen together as part of the overall
context of the history and development of Fredericksburg, a context that must be preserved at
least to some extent for posterity.

21

In order to accomplish the preservation of the historic context of Fredericksburg's
development, preservationists must work to implement some form of long-term growth
management strategy for the city. The creation of such a strategy will be a long and complicated
battle, given the strong anti-govemment/pro-property rights feelings of the citizens of the area
and the presence of constricting Texas laws concerning municipal regulatory powers over
extraterritorial jurisdictions (to be discussed fully in Chapter Seven). Accordingly, short-term
strategies must first be implemented, possibly through a combination of somewhat limited land
regulations and encouragement of voluntary protection efforts, in order to protect the surrounding
historic agricultural and scenic lands until enough local support can be generated to implement
a long-term, anti-sprawl growth management plan.

22

CHAPTER TWO: PROPOSED AMENDMENTS
TO THE HISTORIC PRESERVATION ORDINANCE

I. Introduction

The three main goals used to guide the formulation of the amendments proposed to
Fredericksburg's historic preservation ordinance in this chapter are as follows: (1) provide strong
enough regulations and enforcement measures to adequately preserve, protect, and enhance the
significant historic, cultural, and architectural resources of the city; (2) enable Fredericksburg to
qualify for certified local government (CLG) designation from the Texas Historical Commission
(THC) through the formulation of an amended ordinance that satisfies the standards for such a
designation; and (3) create an ordinance that meets the needs and desires of the citizens of the
city, particularly the strong desire for the protection of property rights in written into government
land use regulation. Since Fredericksburg's current historic preservation ordinance is written in
a way that would require extensive amendment of its language in order to achieve the stated
objectives, it is necessary to amend the ordinance in its entirety and start completely anew. ^
The proposed amended ordinance presented in this chapter has been formulated through the
adaptation of provisions from the ordinances and historic preservation plans of both CLG and
nonCLG municipalities in Texas and in other states, the inclusion of original ideas of the author,
and through adherence to the model preservation ordinance for municipalities written by the
THC. Several provisions from Fredericksburg's current ordinance have also been reinserted into
the amended ordinance, and the entire ordinance is written to meet and in some cases exceed the

-'■' See the current Fredericksburg historic preservation ordinance found in Appendix A.

23

historic preservation ordinance requirements for municipalities seeking CLG designation as
established by the Texas Historical Commission.

Since the purpose of this thesis is to present to the proponents of increased government
protection of Fredericksburg's heritage and scenic/natural resource a politically acceptable means
of accomplishing these desired regulations, this chapter separates the text of the proposed
amended ordinance into manageable parts, in order to allow an analysis and commentary to be
presented after each part. The commentaries analyze exactly how the sections contained in the
previous part of the ordinance text are intended to fiinction and how these sections meet the levels
of regulation required to adequately protect the city's heritage resources. Explanations of how
the sections in the previously portion of the text meet or exceed the THC's requirements for CLG
designation, and of how they satisfy the fears and desires of the anti-government regulation
mentality that is present among many of the city's citizens are also given in the commentaries.
Finally, these analyses and commentaries recommend various methods that might be used both
to educate the public on the direct and indirect benefits of the sections offered in each part of the
text and to convince citizens concerned about excess government regulation of private property
rights resulting from the enforcement of the sections presented in the particular portion of the text
of the chapter that such will not be the case - all in an attempt to allow the proponents of historic
preservation to gain enough popular support for the amended ordinance so that the ordinance will
be temporarily enacted for a four year trial period by the City Council.

It should be noted that the separate parts of the text of the ordinance presented in this
chapter sometimes contain several sections of the ordinance followed by analysis and
commentary, and sometimes contain only one section of the amended ordinance followed by an
analysis and conmientary. This varying format is used because some of the adjacent sections of
the amended ordinance are intended to work together to achieve the same overall purpose, while

24

other sections are meant to address a single issue or ftilfill an individual need. Thus, it is more
logical to present commentary on the sections linked together in purpose as a whole, rather than
offering separate commentaries on each one of these connected sections.

25

II. Preamble and Section 12.201

AN ORDINANCE TEMPORARILY AMENDING CHAPTER 12 ARTICLE 12.200 OF THE
CODE OF ORDINANCES OF THE CITY OF FREDERICKSBURG, TEXAS (HISTORIC
PRESERVATION); TEMPORARILY REPEALING ALL ORDINANCES IN CONFLICT;
ESTABLISHING AN EFFECTIVE DATE; AND ESTABLISHING AN EXPIRATION DATE
FOR THE TEMPORARY ORDINANCE UNLESS PERMANENTLY ADOPTED BY CITY
COUNCIL

WHEREAS, the Constitution of the State of Texas, 1876, expressed the obligation of the
government to preserve the evidence of Texas' historical heritage (Texas Constitution Act XVI.
Sections 38, 39, and 45, providing respectively for the Commissioner of Insurance, Statistics, and
History; Appropriations for Historical Memorials; and Historical Records, Rolls, and
Documents); and-^^

WHEREAS, the first session of the Texas legislature following the adoption of the
Constitution of 1876 created the Department of Insurance, Statistics, and History (8 Gammel's
Laws pp. 1055, 1061); and^^

WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, the Municipal Zoning
Authority, specifically authorizes zoning functions and procedures for municipalities; and-^^

WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, Section 211.003
provides that in the case of designated places and areas of historical, cultural, or architectural
importance and significance, the governing body of a municipality may regulate the construction,
reconstruction, alteration, or razing of buildings and other structures; and^"

WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, SECTION 21 1 .005
authorizes the governing body of a municipality to divide the municipality into districts, within
which the governing body may regulate the erection, construction, reconstruction, alteration,
repair, or use of buildings, other structures, or land and within which zoning regulations must

33

^•^ San Antonio, Texas, "City of San Antonio Historic Districts and Landmarks Ordinance

(No. 64539)," Preamble, p. 1. [Hereafter referred to as "S.A. Ord."]

34

Ibid.

35

^-^ Texas Historical Commission, Local Government Assistance Series, Number 1:

Guidelines for Drafting Historic Preservation Ordinances and Model Ordinance (Austin,

Texas: Texas Historical Commission, 1988), p. 7. [Hereafter referred to as THC]

36

Ibid.

26

be uniformed for each class or kind of building in a district; however, zoning regulations may
very from district to district; and^ '

WHEREAS, the court in Connor v. City of University Park, 142 S.W. 2d 706 (Tex. Civ.
App. -Dallas 1940, writ ref d) held that "aesthetic considerations" are legitimate concerns in the
regulation of land use years before historic preservation was included through amendment as part
of the Municipal Zoning Authority, and the court in City of Dallas v. Crownrich, 506 S.W. 2d,
654 (Tex. Civ. App. -Tyler 1974, writ ref d n.r.e.) confirmed the legality of municipal historic
preservation regulation through zoning laws under the powers granted municipalities in Texas,
and the United States Supreme Court in Penn Central Transportation Co. v. City of New York,
438 U.S. 104 (1978) reaffirmed its decisions in Village of Belle Terre v. Boraas, 416 U.S. 1, 9-
10 (1974), Young v. American Mini Theaters. Inc., 427 U.S. 50 (1976), and City of New Orleans
V. Dukes, 427 U.S. 297 (1976) that State and city enactment of land use regulations designed to
enhance the quality of life through the preservation of the heritage and character of a city and its
desirable aesthetic features is legal under the Constitution of the United States; and

WHEREAS, the City Council of the City of Fredericksburg recognizes the vital
importance that its residents place on the preservation and maintenance of the municipality's
unique historical, cultural, and architectural heritage as evidenced by the many historic structures
and properties, all of which maintain cultural and neighborhood identity while encouraging
tourism and industry, which are significant economic activities and sources of revenue for the
municipality and its residents; and^

WHEREAS, the City Council recognizes that the requirement of preserving the
historical, cultural, and architectural heritage of the municipality is necessary because changes
increasingly threaten to destroy buildings, structures, and areas having important historical,
cultural, architectural, and community values, which, when damaged, altered, or destroyed,
cannot be replaced; and^"

WHEREAS, it is the intent of the City Council to preserve the historical, cultural, and
architectural heritage of the municipality while fully recognizing that fundamental property rights,
guaranteed by the Constitution, emphasized by the Congress, and upheld by the Courts, must be
protected. '^^

37

Ibid.

^° Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Preamble, p. 2.

^^Ibid.
40

S.A. Ord., Preamble, pp. 2-3.

27

NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF
FREDERICKSBURG, TEXAS:

That Chapter 12, Article 12.200 of the Code of Ordinances of the City of Fredericksburg is
hereby temporarily amended in its entirety, pursuant to CH. 211 TEXAS LOCAL
GOVERNMENT CODE, and shall henceforth read as follows:

ARTICLE 12.200 HISTORIC PRESERVATION

§ 12.201 Purpose and Intent'^^

The City Council hereby recognizes that the City of Fredericksburg has become nationally and
internationally known for its historic, architectural, and cultural resources and its beautiful setting
in the Texas Hill Country. Fredericksburg's distinct qualities have proven increasingly attractive
to residents, businesses, and tourists alike.

As a matter of public policy, the protection, enhancement, and perpetuation of landmarks or
historic districts of historic^, cultural, and architectural merit^^ are necessary to promote the
economic, cultural, educational, and general welfare of the public. The City Council recognizes
that the City of Fredericksburg represents the unique confluence of time and place that shaped
the identity of generations of citizens, collectively and individually, and produced significant
historic, architectural, and cultural resources that constitute their heritage. The provisions of this
historic preservation ordinance are designed to achieve the following goals:

(1) To preserve, protect, and enhance significant sites and structures that
represent or reflect distinctive and important elements of the city's and/or State's
architectural, cultural, social, economic, ethnic, and political history and that
impart a distinctive aspect to the City;

(2) To foster civic pride in the accomplishments of the past and strengthen civic
pride through historic preservation;

(3) To promote the economic prosperity and welfare of the community by
conserving the value of landmark buildings through stabilization, restoration or
rehabilitation, and by encouraging the most appropriate use of such property
within the city;

'^^ Adaptations of S.A. Ord., Section 35-421, pp. 3-4, and mC, Section 1, p. 7.

^^ Texas Historical Commission guidelines for historic preservation ordinances
qualifying for certified local government status allow municipalities to exclude "specific
references to archeological resources" in their ordinances unless significant archeological
resources exist within the corporate limits of a municipality, compelling such municipalities to
address the regulation of archeological resources in their ordinances. 77/C, Introduction, p.
1.

28

(4) To protect and enhance Fredericksburg's attractiveness to visitors and the
support and stimulus to the economy thereby provided;

(5) To ensure the harmonious, orderly, and efficient growth and development of
the City;

(6) To provide a review process for the appropriate preservation and development
of important cultural, architectural, and historic resources; and

(7) To maintain a generally harmonious outward appearance of both historic and
modem structures through complementarity of scale, form, proportion, texture,
and material.

Analysis and Commentary on Preamble and § 12.201

The Texas Historical Commission, in the model ordinance it provides municipalities in
its Local Government Assistance Series, highly recommends the establishment of the legality of
a municipal historic preservation ordinance in a preamble to the ordinance. ^ However, no
such explanation of the legal justification of Fredericksburg's historic preservation ordinance
exists in the original ordinance. Since one of the main goals of amending the Fredericksburg
ordinance is to allow the City to qualify for "certified local government (CLG)" status with the
Texas Historical Commission (THC), so that Fredericksburg may enjoy the financial and technical
assistance benefits of CLG status, the amendments proposed in this thesis will follow the general
requirements outlined in THC's model ordinance for "municipalities interested in applying for
Certified Local Government designation.""*^ The proposed ordinance also includes other
provisions, in addition to the general THC requirements, which are tailored to the specific
physical, social, political, and economic needs and desires of the City and its citizens. These

^^ THC, Section 1, p. 7.
^ Ibid., p. 1.

29

additional provisions are drawn from the historic preservation ordinances of Texas cities and the
preservation plans and ordinances of municipalities in other states. It should also be noted that
the organization of the proposed ordinance follows the format of the original Fredericksburg
historic preservation ordinance.

The preamble to the amended Fredericksburg historic preservation ordinance satisfies
THC ordinance requirements by establishing the legality of the ordinance under the Constitution
of the State of Texas and under the Texas legislation that enables municipal historic preservation
ordinances to become statutory law. The preamble also refers to two significant Texas appellate
decisions and decisions of the U.S. Supreme Court that have upheld the legality of municipal
historic preservation regulations. The inclusion of these decisions in the preamble is designed
to focus the attention of the people of Fredericksburg on the fact that the historic preservation
regulations enacted by this ordinance do not conflict with the personal and property rights
guaranteed under the constitutions of both Texas and the United States.

Similarly, the preamble contains a statement that implies that the City Council is well
aware of the property rights concerns of the citizenry regarding historic preservation regulation.
This same statement also implies that the City Council will strive to see that the Historic Review
Board not be permitted to carry out actions or create questionable rules that might be perceived
as excessive by the local populace. It is hoped that this statement will make the citizens of
Fredericksburg realize that there is public accountability in the form of the City Council for the
actions taken in the name of the historic preservation ordinance and that it is in the City Council's
best political interest to make sure that their Historic Review Board appointees do not try to
overstep their powers through their actions and raise the volatile issue of property rights
violations in this community. Thus, the purpose of these highlighted statements in die preamble
is to help curb die strong property-rights based objections to the new regulations and powers

30

granted in the amended ordinance by giving constitutional, legislative, judicial, and City Council
assurances that the ordinance as properly applied does not and will not violate property rights.
It is desired that these statements help the ordinance gain public support and deter all unfounded,
spiteful legal challenges to the amended ordinance by persons simply angered by what they
consider unfair or excessive regulation of their property. The preamble also contains

provisions adapted from the preamble of the historic preservation ordinance of the City of San
Antonio (a designated Texas CLG) showing the history of the support given historic preservation
by the Texas legislature since 1876. This information is added to make the citizens of
Fredericksburg aware that the importance of preserving state and local histories has been a
recognized obligation and goal at the state level for well over one hundred years.

Finally, the first of two interconnected statements in the preamble acknowledges the
importance of Fredericksburg's historic structures and properties to its citizens' social, cultural,
and economic well-being. The second statement follows the first and firmly states that the
regulations enacted in the amended ordinance are imperative to preserving the continued social,
cultural, and economic health of the community. The two statements are intended to make the
populace realize exactly how precious its historic, cultural, and architectural resources are to the
city. These resources give the town its unique and attractive character, thereby enhancing the
quality of life within the community and providing a large source of income through tourism.
The public education campaign, which should be carried out in order to gain public approval of
the ordinance and secure its adoption by the City Council, will convey the message of these two
statements to the public and inform the citizenry of how little power the present ordinance has
to protect these vital resources. The combination of legal justification of historic preservation
regulation and the appeal to community pride and self-interest found in the preamble should help

31

gain public support for the adoption of and compliance with Fredericksburg's amended historic
preservation ordinance.

In concluding the analysis and commentary on the preamble, it should be noted that the
preamble begins with a statement declarmg the ordinance to be a temporary amendment of
Chapter 12 Article 12.200 of the Fredericksburg Code of Ordinances. The amended ordinance
is to be offered to the people of Fredericksburg as a set of regulations to be initially enforced on
a four year trial basis, in order to help convince the citizens of Fredericksburg that they should
put aside their fears of excessive government regulation and give the ordinance a chance to prove
its worth to the city within a reasonable amount of time. The temporarily amended ordinance
shall expire at the end of the four year period if not permanently enacted by the City Council
before its expiration date, thereby allowing the people of the city to be freed from the enhanced
regulations provided by the temporary ordinance if it is clear to the City Council that a majority
of citizens oppose the continued enforcement of the amended historic preservation ordinance. The
amended ordinance's expiration date and the procedures required for its permanent enactment are
contained in Section 12.219 of the ordinance, and a complete analysis and conmientary on the
legality and advantages of this provision are given in Part X of this chapter.

The "Purpose and Intent" section of the amended ordinance is another provision required
under the THC model ordinance, but not found in the current ordinance. This provision is self-
explanatory in its aim to guide the city's Historic Review Board in its implementation of the
ordinance. Furthermore, it is also meant to explain to the citizenry that the historic, cultural, and
architectural resources present in the city must be preserved in order to provide the commimity
with a healthy sense of its heritage and culture The "Purpose and Intent" section is also intended
to remind people, as did the preamble, that a significant portion of Fredericksburg's economy
stems from the substantial number of tourism-related businesses that cater to the hundreds of

32

thousands of tourists attracted to the city's well-known historic, architectural, and cultural
resources each year. One of the specific goals of the historic preservation ordinance is to protect
these resources as a means both to foster continued tourism and to keep a high quality of life in
the quaint historic city in order to attract new businesses to the community. ^ In light of the
legal justifications and benevolent goals contained in the Preamble and the "Purpose and Intent"
section of the proposed ordinance, it is hoped that these two provisions can be used by the
proponents of the amended ordinance as significant tools to help generate support for the initial,
temporary adoption of the ordinance among the citizens of Fredericksburg. If the supporters of
enhanced historic preservation regulation m Fredericksburg are truly successful in their attempts
at public education during the campaign to convey the many social and economic benefits the
proposed amended ordinance is designed to bestow on the city, then a majority of citizens will
call for the temporary adoption of the ordinance and support the efforts of the Historic Review
Board out of a sense of civic duty, pride, and self-interest.

Finally, one must note that a significant political concession is made in number seven of
the stated goals of the ordinance. The word "color" is intentionally left out of the list of terms
adapted for inclusion from the seventh stated goal of the San Antonio Ordinance.^ The
argument that "the city was going to tell the owners of designated property what colors they
could and could not use to paint their structures" was one of the main arguments used against the
original historic preservation ordinance first proposed for Fredericksburg. The property-rights
fervor this argument caused was one of the main reasons why the original ordinance was

'*^ As Donovan Rypkema states in The Economics of Historic Preservation, (Washington,
D.C.: National Trust for Historic Preservation, 1994), p. 28, the high quality of life offered
by cities through the preservation and utilization of their local historic resources is one of the
critical factors business use to determine where to locate or expand.

^ S.A. Ord., Section 35-431, p. 3.

33

considerably reduced in the powers it granted the Historic Review Board. ^^ It is felt that the
potential benefits from regulating paint color usage are certainly not worth the risk of again
generating political controversy over perceived property-rights violation were paint color
regulations made part of a proposed historic preservation ordinance for the city.

Karen Oestreich, former original member of the Fredericksburg Historic Review
Board, conversation with author, 29 August 1995, Fredericksburg, Texas.

34

III. Sections 12.202 - 12.203

§ 12.202 Definitions'^^

The following definitions shall apply only to Article 12.200.

ALTERATION: Any construction or change of the exterior of a building, object, site, or
structure designated as an historic landmark or located within an historic district. For buildings,
objects, sites, and structures, alteration shall include, but is not limited to, the changing of
roofing or siding materials; changing, eliminating, or adding doors, door ft^ames, windows,
window frames, shutters, fences, railings, porches, balconies, signs, or other ornamentation.
Alteration shall not include ordinary maintenance or repair.

BUILDING: A building is a structure created to shelter people or things, such as a house, bam,
church, hotel, warehouse, or similar structure, including an historically related complex, such as
a courthouse and jail or a house and bam.

CERTIFICATE OF APPROPRIATENESS: A signed and dated document evidencing the
approval of the Historic Review Board for work proposed by an applicant.'*^

COMPREHENSIVE PLAN: A document or series of documents prepared by or for the Planning
and Zoning Commission setting forth policies for the fiiture of Fredericksburg.^^

CONSTRUCTION: The act of adding an addition to an existing building or stmcture or the
erection of a new principal or accessory building or stmcture on a lot or property.

CONTRIBUTING: A building, object, site, or stmcture located in an historic district that
contributes to the district's historic, cultural, or architectural significance through location,
design, setting, materials, workmanship, feeling, and association, and that shall be afforded the
same considerations as an historic landmark. Such a property is classified as contributing on all
city zoning maps and in the design guidelines for the historic district in which it is located.^ ^

^° The following definitions are adaptations of the definitions contained in S.A. Ord.,
Section 35-422, pp. 4-9, unless otherwise noted.

^^ Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision A, p. 4.

5^ THC, Appendix A, p. 15.

^^ Adaptations of S.A. Ord., Section 35-422, p. 5, and of Fort Worth, Texas, "City of
Fort Worth Historic Preservation Ordinance," Subdivision A, p. 6.

35

•-P,,

DEMOLITION: An act or process that destroys or razes in whole or in part a site, structure,
building, or object, or permanently impairs its structural or historic integrity. ^

DESIGN GUIDELINES: Guidelines that are adopted by the Historic Review Board and are
meant to be used to help protect, perpetuate, and enhance the historic, cultural, or architectural
character of a building, object, site, or structure. ^

ECONOMIC HARDSHIP: An economic burden imposed upon an owner that is unduly excessive
and prevents a realization of a reasonable return upon the value of the property.

ENDANGERED: Threatened by deterioration, damage, or irretrievable, irreplaceable loss due
to neglect, disuse, disrepair, instability, lack of financial resources, and/or impending
demolition. ^^

HISTORIC DISTRICT: An area, urban or rural, defined as an "historic district" by City
Council, State, or Federal authority and that may contain within definable geographic boundaries
one or more historic landmarks, including their accessory buildings, fences, and other
appurtenances, and natural resources having historical or cultural significance, and that may have
within its boundaries other buildings or structures, that, while not of such historic, architectural,
or cultural significance as to be designated landmarks, nevertheless contribute to the overall visual
setting of or characteristics of the historic landmark or landmarks located within the district.

HISTORIC LANDMARK: A building, object, site, or structure that is of value in preserving
the historic, cultural, or architectural heritage, or an outstanding example of design or
craftsmanship, or a site closely related to an important personage, act, or event in history. Such
properties should be preserved and protected from modifications that detract from their historical
character or significance.

HISTORIC PRESERVATION: The identification, evaluation, recordation, documentation,
acquisition, protection, management, rehabilitation, restoration, stabilization, maintenance, and
reconstruction of historic building, structures, sites, or objects, or any combination of the
foregoing activities. ^^

HISTORIC PRESERVATION PLAN: A document that integrates the various preservation
activities in the city and gives them coherence and direction, as well as relates the community's
preservation efforts to community development planning as a whole. ^"

^^ Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision A, p. 4.

53 Ibid., p. 5.

54

Ibid.

55 Ibid., p. 6.

56 Adaption of 77/C, Appendix A, p. 15.

36

HISTORIC REVIEW BOARD: The Historic Review Board of the City of Fredericksburg
reestablished and continued by this ordinance.

INVENTORY: A systematic listing of cultural, historical, or architectural resources prepared
by a city, state, or federal government or a recognized local historic authority, following
standards set forth by city, state, and federal regulations for evaluation of cultural properties.

NON-CONTRIBUTING: A building, object, site, or structure that, though located within the
boundaries of an historic district, does not contribute to the historic, cultural, or architectural
character thereof and that is classified as not contributing on all city zoning maps and in the
design guidelines for the historic district in which it is located. Such designation is meant to
provide greater latitude for the utilization of the property, but all modifications shall conform to
the design guidelines and all regulations of this ordinance unless otherwise exempted.^'

OBJECT: An object is a material thing of functional, aesthetic, cultural, or historic value that
may be, by nature or design, movable yet related to a specific setting or environment.

ORDINARY MAINTENANCE AND REPAIR: Any work, the purpose and effect of which is
to correct any deterioration or decay of or damage to a building, object, site, or structure, or any
part thereof, and to restore the same, as nearly as may be practical, to its condition prior to such
deterioration, decay, or damage, using the same materials or materials available that are as close
as possible to the original. Any such work must comply with all applicable codes and ordinances
of the City of Fredericksburg. Ordinary maintenance and repair does not include a change in
design, material, or outward appearance other than a change in color; it does include in-kind
replacement and repair. ^°

REASONABLE RETURN: A reasonable profit or capital appreciation that may accrue from the
use or_^wnership of a building, object, site, or structure as the result of an investment or
labor.

59

RECONSTRUCTION: The act or process of reassembling, reproducing, or replacing by new
construction, the form detail, and appearance of a building, object, or structure and its setting as
it appeared at a particular period of time by means of the removal of later work, the rq)lacement
of missing earlier work, or the use of original materials."^

REHABILITATION: The act or process of returning a building, object, site, or structure to a
state of utility through repair, remodeling, or alteration that makes possible an efficient

en

Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision A., p. 6.

^^ Ibid., p. 7.

59 Ibid.

60 Ibid.

37

contemporary use while preserving those portions or features of the building, object, site, or
structure that are significant to its historic, architectural, and cultural values.

RELOCATION: Any change of the location of a building, object, or structure in its present
setting or to another setting.

RESOURCE: A source or collection of buildings, objects, sites, structures, or areas that
exemplify the cultural, social, economic, political, or architectural history of the nation, state,
or city.

RESTORATION: The act or process of accurately recovering the form and details of a building,
object, site, or structure and its setting as it appeared at a period of time by means of the removal
of later work or by the replacement of missing earlier work.

SITE: The location of a significant event, an historic activity, or a structure or group of
structures, whether standing, ruined, or vanished, where the location itself maintains historical
or cultural value, regardless of the value of any existing structure."*

STABILIZATION: The act or process of applying measures designed to reestablish a weather-
resistant enclosure and the structural stability of an unsafe or deteriorated building , object, site,
or structure while maintaining the essential form as it exists at present.

STRUCTURE: Anything constructed or erected that requires location on the ground, or is
attached to something having location on the ground, including, without limitation,
buildings."^

UNUSUAL AND COMPELLING CIRCUMSTANCES: Those uncommon and extremely rare
instances, factually detailed, that would warrant the Historic Review Board approval of a
certificate of appropriateness application due to the evidence presented.

§ 12.203 Historic Review Board

(a) Reestablishment of Board. There is hereby reestablished and continued the Historic Review
Board of the City of Fredericksburg, Texas, herein after called the Board, consisting of seven (7)
members appointed by the City Council. "^

(b) Oualifications. Each member of the Board shall be

(1) a resident of the City of Fredericksburg, Texas, or

6* Ibid.

^2 Ibid., p. 8.

^^ Adaptation of S.A. Ord., Section 35-423, pp. 9-10.

(2) a resident of Gillespie County, Texas.

The Board as a whole shall generally represent the ethnic makeup of the City of
Fredericksburg. The City Council shall make appointments that will enable the City of
Fredericksburg to obtain and maintain "certified local government" status under the rules of the
U.S. Historic Preservation Act of 1966, as amended, and Title 13, Cultural Resources, Part II,
Chapter 15, 13 Antiquities Code of Texas 15.6, as amended."^ The Board shall include at
least one (1) representative from each of the following organizations: Gillespie County Historical
Society and Fredericksburg Heritage Federation. No fewer than two (2) members of the Board
shall reside in and/or own a city-designated historic landmark or a building or structure within
a city-designated historic district. Not less than one (1) member of the Board shall have a
license, degree, or professional experience in the field of architecture, architectural history, or
historic preservation. Not less than one (1) member of the Board shall be a historian. Not less
than one (1) shall be a licensed real estate broker. A single member of the Board may meet more
than one (1) but not more than two (2) of the residential, organizational membership, and
occupational requirements of the overall membership of the Board. All board members,
regardless of background, shall have a known and demonstrated interest, competence, or
knowledge in historic preservation within the City of Fredericksburg.""

(c) Term of Appointment. Each member of the Board shall be appointed for a term of three (3)
years, except that of the first Board to be appointed under the amended ordinance, two (2) shall
be appointed to serve for two (2) years, and two (2) for one (1) year. The term shall expire on
the first day of July of the appropriate year. Any vacancy on the Board shall be filled by the City
Council for the remainder of the absent member's term. Any member of the Board who fails to
attend at least seventy-five percent (75%) of all regular meetings of the Board within any twelve
(12) month period shall be removed from the Board, unless such failure to attend was the result
of illness or other acceptable excuse as determined by the City Council."'

(d) Chairman and Vice-Chairman. A majority of the members of the Board shall elect a
chairman and vice-chairman from among those members who have served at least one (1) year
as Board members. No person shall serve more than two (2) consecutive City Council appointed
terms in the same office."°

(e) Secretary of the Board. TheSecretaryofthe City of Fredericksburg or his/her representative
shall act as Secretary of the Board and shall attend and keep the minutes of all meetings.

^ THC, Section 2, p. 8.
65

Adaptation of S.A. Ord., Section 35-423, p. 12.

"" Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 9, Article 12.200
Historic Preservation, Section 12.204, p. 12-7. [Hereafter referred to as "F. Ord."]

^"^ Ibid., pp. 12-6- 12-7.

68 S.A. Ord., Section 35-423, p. 12.

39

(f) Ex Officio Members. The following persons, or their designated representatives shall serve
as ex officio members:

(1) The Building Official of the City of Fredericksburg;

(2) The Secretary of the City of Fredericksburg; and

(3) The Attorney of the City of Fredericksburg.^^

(g) Voting Rights. Ex officio members shall have no right to vote, but shall act in an advisory
capacity, participating fully in discussions and assisting the Board in its various functions.

(h) Duties and Functions. The Board shall be empowered to carry out the following duties and
functions:

(1) Make recommendations for employment of staff and professional consultants
as necessary to carry out the duties of the Board; '^

(2) Prepare rules and procedures as necessary to carry out the business of the
Board, which shall be ratified by the City Council;^^

(3) Adopt criteria for the designation of historic, architectural, and cultural
landmarks and the delineation of historic districts, which shall be ratified by the
City Council;^^

(4) Conduct surveys to identify historically, culturally, and architecturally
significant buildings, objects, sites, structures, and areas that exemplify the
cultural, social, economic, political, or architectural history of the city or
state^'^ and to maintain an inventory of all locally desigpated landmarks and
all properties located in historic districts within the city; '^

69

Ibid.

"^0 Adaptations of F. Ord., Section 12.204, p. 12-7 and S.A. Ord., Section 35-423, pp.
12-13.]

"^1 mC, Section 2, p. 8.

'^^ Ibid.

"^^ Ibid.

''^ Adaptation of S.A. Ord., Section 35-423, p. 10.

"^^ THC, Section 2, p. 8.

40

(5) Investigate and recommend to the City Council the designation of i^eas
having special historic, cultural, or architectural value as historic districts; ^

(6) Investigate and reconunend to the City Council the designation of buildings,
objects, sites, structures, or clusters having special historic, cultural, or
architectural value as landmarks, '

(7) Prepare specific design guidelines for the restoration, rehabilitation,
alteration, construction, reconstruction, or relocation of landmarks or buildings,
objects, sites, and structures within historic districts, °

(8) Prepare guidelines for signage, street furniture, appurtenances, advertising
devices, and landscaping for each historic district and for landmarks;

(9) Prepare specific design guidelines for the review of certificate of
appropriateness applications for work affecting the exterior appearances of
landmarks or buildings, objects, sites, or structures within historic districts;^"

(10) Hold public hearings and review applications for certificates of
appropriateness for construction, reconstruction, alteration, relocation, or
demolition affecting designated landmarks, or buildings, objects, sites, or
structures within historic districts, and issue or deny certificates of
appropriateness for such actions;**

(11) Testify before all boards and commissions on any matter affecting
historically, culturally, or architecturally significant areas, buildings, objects,
sites, structures, clusters, or historic districts;"'^

(12) Review periodically the Fredericksburg Code of Ordinances and the City
of Fredericksburg Zoning Ordinance and recommend to the City Council, the
Planning and Zoning Commission, and/or any other city boards, commissions,
or agencies any amendments appropriate for the preservation and protection of

77 Th;

78

79

"^6 Adaptation of S.A. Ord., Section 35-423, p. 10.

Ibid.

Ibid.

Ibid.

80 Adaptation of THC, Section 2, p. 9.]
*1 Adaptation of S.A. Ord., Section 35-423, p. 10.

Ibid., p. 11.

41

82

landmarks or buildings, objects, sites, and structures within historic
districts, ^

(13) Prepare an historic preservation plan for the City which shall:

(13.1) Formulate a program for private and public action which
will state the role of various city agencies in the preservation of
landmarks and buildings, objects, sites, and structures within
historic districts;

(13.2) Make recommendations to the city government
concerning the acquisition and use of funds to promote the
preservation and/or purchase of landmarks and the preservation
of historic districts from federal sources, state sources,
foundation sources, and local private sources;

(13.3) Recommend to the proper local agencies incentives to be
offered to encourage historic preservation; and

(13.4) Formulate amendments to the Historic Preservation
Ordinance necessary to further the stated purpose and intent of
said ordinance.

The historic preservation plan shall be presented to the Planning and Zoning
Commission, along with a timetable for the adoption of the provisions of the
plan, for consideration and recommendation by the Commission to the City
Council for inclusion in the comprehensive plan for the City of Fredericksburg.
The historic preservation plan shall be updated by the Historic Review Board for
consideration for inclusion within every subsequent comprehensive plan
commissioned for the City of Fredericksburg; °^

(14) Review all proposed National Register nominations within the city of

Fredericksburg upon recommendation of the city's Historic Preservation
Officer;85

(15) Inform and educate the citizens of Fredericksburg concerning the historical,
cultural, and architectural heritage of the city°" and increase public awareness

83
84

Ibid.

Adaptation of Boeme, Texas, "City of Boeme Ordinance No. 91-05," Section 3, pp.

3-4.

^^ Adaptation of S.A. Ord., Section 35-423, p. 11.
^^ Ibid.

42

of historic, cultural, and architectural preservation by developing and
participating in public education programs;"'

(16) Recommend the acquisition of a landmark or a building, object, site, or
structure within an historic district by the city government where its preservation
is essential to the purpose of this ordinance and where private preservation is not
feasible; ^^

(17) Review and make recommendations concerning proposed tax increment
districts and special assessment districts that would affect designated landmarks
or historic districts;"^

(18) Recommend conferral of recognition upon the owners of landmarks or
buildings, objects, sites, or structures within historic districts by means of
certificates, markers, or plaques;^"

(19) Create committees from among its membership and delegate to these
committees responsibilities to carry out the purposes of this ordinance;"^

(20) Maintain written minutes which record all actions taken by the Conmiission
and the reasons for taking such actions;^^

(21) Prepare and submit annually to the City Council a report summarizing the
work of the Board during the previous calendar year; and^^

(22) Revise and adopt, within one (1) year after passage of this ordinance and
with the assistance of the Historic Preservation Officer, city legal staff, and the
Texas Historical Commission detailed rules of procedure of the conduct of its
meetings that are consistent with both Chapter 12, Article 12.200 of the
Fredericksburg Code of Ordinances and with the rules of procedure necessary to
obtain and maintain "certified local government" status under the provisions of
the U.S. Historic Preservation Act of 1966, as amended, and Title 13, Cultural

^^ THC, Section 2, p. 9.

^^ Adaptation of Ibid.

^^ Adaptation of S.A. Ord., Section 35^23, p. 11.

^^Ibid.

^^ THC, Section 2, p. 8.

^^ Adaptation of S.A. Ord., Section 35-423, p. 11.

43

Resources. Part U, Chapter 15, 13 Antiquities Code of Texas 15.6, as
amended.

(i) Meetings of the Board. The Board shall meet at least once a month at a regularly scheduled
time with advance notice posted according to the Texas Open Meetings Act.^^ Additional
meetings may be called by the Chairman, or upon written request of three members, or upon
notice from the Historic Preservation Officer, the Building Official, or his/her representative that
a matter requires urgent consideration of the Board. All meetings of the Board shall be open to
the public in accordance with the Texas Open Meetings Act. Minutes of the Board's proceedings
showing the vote shall be filed in the office of the City Historic Preservation Officer and shall
be a public record.^"

0) Meetings of Board Committees. All decisions of committees shall be subject to ratification
by the Board at its next regularly scheduled meeting. Minutes of committee proceedings showing
the vote^shall be filed in office of the Historic Preservation Officer and shall be a public
record.

97

(k) Ouorum. Five (5) members of the Board shall constitute a quorum, and action taken at a
meeting of the Board shall require the affirmative vote of a majority of the members present and
voting at such a meeting unless the specific action being taken requires the affirmative vote of a
two-thirds (2/3) majority of the members present and voting on the action as specified by certain
provisions of this ordinance. A simple majority of the members of a committee shall constitute
a quorum, and action taken at a meeting shall require the affirmative vote of a majority of the
members present and voting at such a meeting. ^°

G) Conflicts of Interest. No member of the Board shall vote on any matter that materially affects
the property, income, or business interest of that member or gives the appearance of a conflict
of inter est. ^^

94

Ibid.

^^ Vernon's Texas Codes Annotated: Government. Vol. 5., Title 5, Subtitle A, Chapter
551 (St. Paul, MN: West Publishing Company, 1994), pp. 7-62.

^^ Adaptation of S.A. Ord., Section 35-423, p. 13.

97

Ibid.

^^ Adaptation of F. Ord., Section 12.204, p. 12-7.
^^ Adaptation of S.A. Ord., Section 35-423, p. 13.

44

Analysis and Commentary on § 12.202 and 12.203

The definitions listed in an historic preservation ordinance are meant to provide legal
descriptions of the key terms used in the ordinance as a means to help those who administer and
enforce the ordinance, those regulated by it, and those who have the authority to determine the
legality of the ordinance in a court of law to more clearly understand the purpose and intent of
the ordinance's provisions. Consequently, Section 12.202 of the temporarily amended ordinance
is a critical component of the ordinance, and it contains the legal descriptions of the many
important words and terms used in the ordinance. The definitions in Section 12.202 should,
however, be self-explanatory.

Section 12.203, as amended, retains many aspects of Section 12.204, "Historic Review
Board," in the original ordinance, but these aspects have been reversed in relationship to one
another. The amendments add several very important components to the "Historic Review
Board" section of the ordinance that are critical to the goal of obtaining and maintaining CLG
status for Fredericksburg under THC guidelines. ^^

Subsection (a) of § 12.203 reestablishes the Historic Review Board (hereafter referred to
as the "Board") as the governmental body in charge of administering and enforcing
Fredericksburg's historic preservation ordinance. The amended ordinance leaves the number of
members of the Board at seven, since the relatively small population of Fredericksburg and the
concomitant small number of people who qualify for Board membership under Subsection (b) of
this section realistically limit the number of members to the practical number of seven. A special
provision has been added that allows each Board member to satisfy two of the residential.

^^ See Appendix A for the order and wording of the "Historic Review Board" section
of the current Fredericksburg historic preservation ordinance.

45

occupational, and organizational membership requirements for the Board's make-up. This
provision helps to insure that anyone among the small portion of the population who qualifies as
a potential member and is willing to serve, but who meets more than one of the qualifications for
membership, will still be able to serve the city on the Board.

The qualifications for membership on the Historic Review Board have been amended in
several significant areas. The first is the removal of the requirement that any person living
outside of the City of Fredericksburg but within Gillespie County must own "an historic landmark
or real property located within an historic district" in order to serve on the Board. '"^ The
amended ordinance allows any person who lives outside of Fredericksburg but within Gillespie
County to qualify for membership provided they meet one of the other requirements stated. It
is felt that this change in the qualifications will enable more interested and eligible people to
qualify for Board service, thereby allowing more Board membership turnover when necessary and
taking pressure off residents of Fredericksburg who might feel that they are locked into service
because of their singular qualifications and their residency.

The second change to the ordinance in the qualifications provision is the addition of the
requirement that at least one member of the Board be a licensed real estate broker. This
requirement is recommended for Board membership by the THC's model ordinance.'"'' It
is also a good idea for Fredericksburg's Board, because of the huge concern over the protection
of property rights in the community and the large role that the real estate business plays in the
economy of this rapidly growing city.*^^ It is hoped that the presence of a licensed real

^^^ F. Ord., Section 12.204, p. 12-7. See Appendix A.

102 THC, Section 2, p. 8.

10^ The fact that the real estate business in Fredericksburg is a large and growing
segment of the local economy was conveyed with substantial evidence by Karen Oestreich,
manager of the local Century 2 1 real estate office and former original member of the Historic

46

estate broker on the Board will help steer the Board on a straight and narrow path when it
considers issues and actions which, if handled poorly by members because of a collect lack of
knowledge in real estate law and finance, might open the Board to charges of excessive property
rights regulation and bring unnecessary lawsuits and a lack of community support for preservation
to fruition. It is further hoped that the real estate broker on the Board can act as a messenger to
the community, conveying to the community in word and assuring the citizens by his or her
presence on the Board that the Board does and will respect property rights in its regulation and
that historic preservation is and will contmue to be of benefit to property values and to business
in general in the community.

A third change to the qualifications is that one of the members appointed by the City
Council must be an historian, while another must be either an architect, architectural historian,
or historic preservationist. In the current Fredericksburg ordinance, it is necessary that one
member satisfy only one out of all these qualifications. However, it is felt that having a person
knowledgeable in Fredericksburg history and culture as a permanent fixture on the Board is
absolutely essential in order to guide the actions of the Board at all times in a manner consistent
with and complementary to the city's rich history and collective culture. Furthermore, this
change to the qualification also closely follows THC reconmiendations that one member of the
Board be an historian, and another be "an architect, planner, or [a] representative of a design
profession. "^"^ The term "historian" is left intentionally vague in both the amended
ordinance and the THC model ordinance, in order to allow people who do not have a degree in
the subject but who do have an acknowledged expertise in the area to qualify. Thus, making the
position of historian a requirement for the Fredericksburg Board also helps the city qualify for

Review Board, conversation with author, 29 August 1995, Fredericksburg, Texas.
104 THC. Section 2, p. 8.

47

CLG designation. The fourth change to the Board membership qualifications in this section of
the ordinance is the additional requirement that members appointed to the Board not only have
a known, but also a demonstrated "interest, competence, or knowledge in historic preservation
within the City of Fredericksburg." This subtle but important addition in text is also done to
conform with THC guidelines in the area of historical commission membership as written in its
model ordinance. ^^^

Another addition to the qualifications is the requirement that the City Council must create
a Board whose membership generally mirrors the ethnic makeup of the city. This provision is
listed as a requirement in the THC's model ordinance for cities desiring CLG designation. ^^
It is also appropriate for growing and changing City of Fredericksburg. Although Fredericksburg
is still predominantly made up of Caucasians of Germanic descent, the city's population is
becoming noticeably more ethnically diversified. The City Council should see to it that the city's
minority ethnic groups, particularly the growing Hispanic population, receive representation on
the Board in rough proportion to their numbers within the city, so that these ethnic groups can
play an important role in preserving the history and culture of their city as well. Such ethnic
minority membership on the Board will encourage the preservation of non-German-Texan related
historical, architectural, and cultural artifacts and will result in the recognition and celebration
of all cultures within the city. It is also hoped that the requirement for ethnic membership on the
Board will generate support for the temporarily amended ordinance among the city's minority
groups and that the preservation and celebration of minority history and culture will lead to
continued support for and involvement in historic preservation activities by Fredericksburg's
growing non-Germanic population. The requirement that the City Council "make ^pointments

105

106

Ibid.

Ibid.

48

[to the Board] that will enable the City of Fredericksburg to obtain and maintain 'certified local
government' status" is also a newly added provision to the ordinance. This provision, inspired
by a similar one in San Antonio's historic preservation ordinance, publicly proclaims the city's
recognition of the importance of "certified local government" status to the cause of historic
preservation in Fredericksburg and its commitment to first achieving and then maintaining such
status. The technical assistance and preservation information that the city will receive from the
Texas Historical Commission as a certified local government (once the proposed amended
ordinance is permanently enacted) will greatly boost the level of historic preservation expertise
in Fredericksburg. ^^^ This, in turn, will have a tremendous effect on the quality of historic
preservation regulation in the city. Special grants given to CLGs by the THC could also further
preservation efforts in the city in many significant ways. Thus, it is imperative that the City of
Fredericksburg first obtain CLG status - one of the ultimate objective of this amended ordinance -
and then continually strive to meet all of the criteria for continued existence under CLG status.
The proper education of the public on the benefits and necessity of CLG status, and the fact that
the amended ordinance qualifies Fredericksburg for such status, will help gamer both initial and
long-term public support for the amended ordinance, especially those individuals anxious to have
State and federal financial assistance working toward the improvement of their city.

Among the other amendments to Section 12.203 is the important addition to the
original wording of a provision occurs in the subsection dealing with the voting rights of ex
officio members of the Board (subsection "g"). The phrase "act in an advisory capacity,
participating fully in Board discussions" is added to the original ordinance's wording of this

^^^ Only after the City Council officially adopts the amended ordinance as the permanent
law governing historic preservation in the city can CLG status be conferred upon
Fredericksburg by the Texas Historical Commission. W. Dwayne Jones, Preservation
Planner, Texas Historical Conmiission, telephone conversation with author, 05 February
1996.

49

subsection from a subsection of the San Antonio historic preservation ordinance, in order to offer
more guidance as to what is expected of ex officio members of Fredericksburg's Historic Review
Board. ^08

A new provision regarding the election and terms of the Board Chairman and Vice-
chairman requires that these officials be elected from among the members who have served on
the Board for at least one year and allows said officials to remain in office for up to two
consecutive terms. This new provision is designed to insure that the initial Board, put in place
after the many and complex changes to the ordinance are adopted, is led by veteran Board
members who have prior experience with historic preservation regulation and who understand the
reasoning and necessity behind the new amendments to the ordinance. Furthermore, it guarantees
that the Board will always be led by experienced members. It also allows members with high
qualifications and demonstrated expertise in preservation and leadership to serve twice as long
in the offices of Chairman or Vice-chairman is possible under the current ordinance.

One of the most important changes created by the amendments to the city's present
ordinance is the expansion of the duties and functions of the Board to include many new powers
and responsibilities, the exercise of which is absolutely crucial to the cause of establishing
effective historic preservation regulation in Fredericksburg. As examined extensively in Chapter
One, the Historic Review Board' lack of power under the current ordinance has allowed many
of the city's historic buildings to be altered in ways that compromise their historic structures or
characters. This lack of power has also allowed the construction of new buildings that detract
from the historic and cultural character of the city's only historic district. The continued growth
of Fredericksburg's tourist industry and population poses ever increasing threats to the city's
historic, cultural, and architectural resources, especially since many of the new tourist-oriented

108 S.A. Ord., Section 35-423, p. 12.

50

business are being opened by new residents of the city. These newcomers are less likely to be
talked out of their anti-preservation plans for their buildings by the persuasion and suggestions
of the Historic Review Board, because they do not feel personal ties to the history and culture
of Fredericksburg. Nor are they subject to the peer pressure of old friends and neighbors to "do
the right thing for the community" by respecting the traditional, familiar character of their
historically, culturally, or architecturally significant buildings. ^^ Thus, it is imperative for
the social, cultural, and economic health of the city that the Historic Review Board be given the
new powers and directives offered by Section 12.203 of the amended ordinance.

The important duties, functions, and powers given to the Board under numbers three
through ten of Subsection (h) are aimed at endowing the Board with enough oversight and control
to stop the continuous destruction of the physical fabric and character of the city's historic,
cultural, and architectural resources. In provisions three through six of Subsection (h), the Board
is specifically empowered to identify and inventory both designated and potential landmarks and
historic districts and to recommend to the City Council the designation of nominated landmarks
and districts that meet the criteria for designation adopted by the Board. The identification,
inventory, and recommendation of landmarks and historic districts for designation are the first
major steps necessary to allow the Board to protect the large number of important resources
outside of the city's historic district that are currently endangered by the threat of demolition,
alteration, or unsympathetic new construction. It is hoped specifically and prominently placing
these powers and duties in the "Duties and Functions" subsection of Section 12.203 will strongly
encourage the Board to quickly and more aggressively pursue the designation of the many
significant and endangered resources outside of the current historic district than has the Review

"^ Stan Klein, original and current member of the Fredericksburg Historic Review
Board, conversation with author, 28 August 1995, Fredericksburg, Texas.

51

Board under the current ordinance. ^^ It is also hoped that the City Council, with its evident
interest in better protecting the historic resources of Fredericksburg shown through its
authorization for the formulation of new amendments to the ordinance, will be much more
receptive to the idea of additional designations than it has been in the past. ^ ^ ^

Numbers seven through ten of Subsection (h) allow for the significant expansion of the
powers of review granted the Historic Review Board under the current ordinance. At the present
time, the Board's recommendations upon review of a project are purely advisory.
Fredericksburg's Building Official is instructed to issue a certificate of review to the applicant
within three days after receiving the recommendation of the Board, regardless of whether the
recommendation is for or against allowing a project to proceed. ^^^ Thus, all the current
review process allows the Board is an opportunity to persuade an owner or his/her agent (the
person who usually attends the Board meeting when the owner's application is up for review) to
abandon or modify plans that will lead to the loss of historic, cultural, or architectural character
or fabric, and to suggest alternative, preservation conscious methods to accomplish the same
goal(s)."-' The applicants and/or their agents are under no obligation whatsoever to follow
the recommendations of the Board, since they will receive a certificate of review no matter what

See Section 12.207 of Fredericksburg's current ordinance in Appendix A, p. 12-9.

According to Mr. Stan Klein, the City Council, has been hesitant to designate
properties outside of the current municipal/National Register Historic District for fear of
charges of excessive government regulation by the owners. Stan Klein, AIA, member,
Fredericksburg Historic Review Board, conversation with author, Fredericksburg, Texas, 28
August 1995.

1 1 2

See the current Fredericksburg historic preservation ordinance in Appendix A,

Section 12.205, Subsection (h).

1 1 ^

Stan Klein, original and current member of Fredericksburg's Historic Review Board,

conversation with author, 28 August 1995, Fredericksburg, Texas.

52

they intend to do to their designated structure as long as they go through the motions required
for receiving the certificate from the Building Official.

This ultimate lack of power to stop harmful additions, alterations, new construction, or
demolition affecting designated landmarks and historic districts has made the Board and the
historic preservation ordinance ineffectual, especially as more and more outsiders come into
Fredericksburg to live and establish new businesses. Numbers seven through ten of subsection
(h) give the Historic Review Board the authorization it needs to administer the considerably
stronger, new regulatory powers it receives in Sections 12.209 of the amended ordinance
concerning certificates of appropriateness. These four provisions of subsection (h) also grant the
Board the power it must have to develop guidelines that will guide plans for changes affecting
landmarks and historic districts in a manner consistent with the ordinance's new criteria for
certificate of appropriateness application reviews. The new powers and the new guidelines
authorized in this portion of Subsection (h) thereby accomplish another objective of the
amendments to the ordinance: to give actual regulatory power over designated landmarks and
historic districts to the Board, so that the Board, acting under the directives of the amended
ordinance, can stem the tide of destructive change that has been growing and will continue to
grow if left unchecked by the purely advisory and increasingly ineffectual powers of the present
ordinance.

An extremely significant omission exists in the powers and duties given to the Board in
provision (10) of subsection (h) in that the Board is not allowed to hold public hearings and
review applications for certificates of appropriateness concerning properties which are under

^^^ See Section 12.209 in Appendix B for the specific regulations concerning the
issuance of certificates of appropriateness that are to be enforced by the Board.

53

consideration (nominated) for designation. City of Dallas v. Crownrich ^^ specifically upheld
the power of Texas municipalities to review and approve or deny permits affecting property
nominated for landmark and historic designation, and the provision in the San Antonio ordinance
from which number (10) was adapted gives San Antonio's Board of Review these powers of
review and approval or denial over nominated property. '" Indeed, such powers are
extremely desirable and should ideally be invested in an historical commission in order to prevent
unsympathetic owners of nominated property from carrying out destructive changes to their
properties that they know will not be approved by any respectable historical commission before
their property actually comes under the commission's regulation.

However, although it is legally feasible and certainly desirable to invest Fredericksburg's
Historic Review Board with such powers of review, it is not politically expedient to do so at the
present time. It would be difficult to convince a significant portion of Fredericksburg's
population that it is not excessive regulation to allow properties which are only nominated for,
but not guaranteed landmark or historic district designation, to be regulated by a government
board while their designations awaits approval. Judging from the property rights-based fight that
erupted over the approval of the first drafts of Fredericksburg's current preservation ordinance
and the citizens' known distrust of govenmient regulation or intervention in individuals' affairs,
a substantial segment of the voters would view such powers of review over nominated properties
as an unconstitutional usurpation of guaranteed individual property rights. It will be hard enough
to convince the citizenry that the regulations on designated property enacted by the ordinance are
not only absolutely necessary, but are also completely legal under State and federal laws and

1^5 506 S.W.2d, 654 (Tex.Civ.App. - Tyler 1974, writ refd n.r.e.).
^^6 S.A. Ord., Section 35-423, p. 10.

54

constitutions, without adding the difficult task of convincing them that regulations on nominated
property are also completely legal and constitutional.

Although there is a risk that some of Fredericksburg's historic, architectural, and cultural
resources may be lost if the Board is not granted powers to review nominated properties, the loss
of a much greater number of the same resources is guaranteed if the public does not approve the
regulations over designated properties granted the Board by this amended ordinance. Thus, the
powers of review over nominated properties are omitted in order to give the amended ordinance,
with its more inmiediately vital regulations over designated properties, a better chance of adoption
by the City Council. It is, however, strongly recommended that the powers of review over
nomination be adopted through a future amendment once the current fervor over property rights
dies down and the citizenry become more comfortable with the level of regulation enacted under
the amended ordinance proposed in this thesis. '^^ This power of review is not required
under the THC's guidelines for municipalities wishing to qualify for certified local government
status with their preservation ordinances, so its absence will not hurt Fredericksburg's chances
for obtaining designation as a CLG. ' '°

Other necessary political concessions exist in Subsection (h) in the form of required City
Council ratification of the rules and procedures governing the Board's conduct of business (in
number (2)) and the criteria for the designation of landmarks and historic districts (in number
(3)). These ratification requirements, required by the THC's model ordinance, assure the citizens
of Fredericksburg that there will be opportunity for public review and comment of the rules and
procedures of the Board and the criteria for landmark and historic district designation at

^ ^^ See Part IV of Chapter Five for a more detailed discussion of this recommended
amendment to the ordinance once the ordinance is permanently adapted.

11*7HC, Section?, p. 11.

55

upcoming public meetings of the City Council. ^^ In this way, both the citizenry and the
members of the City Council know that there is a mechanism for public accountability in place
regarding the operations of the Board and the designation of landmarks and historic districts and
that this mechanism prevents the passage of rules and guidelines that would be considered too
excessive and overly regulatory by a majority of the conservative population. These ratification
provisions can be presented to the public as a selling point for the adoption of the amended
ordinance, since they are a built-in means of public oversight that help guarantee that the
regulations enacted under the amended ordinance will not illegally encroach on property rights
or lead to excessive government regulation of individuals' actions.

Number (13) of Subsection (h) delegates to the Board the extremely important duty of
having an historic preservation plan prepared for the city as part of every comprehensive plan
created for Fredericksburg. The formulation and updating of historic preservation plans for
municipalities is highly recommended by the THC in its ordinance formulation guidelines, since
preservation plans allow specific preservation goals and objectives to be formulated and officially
adopted as guidelines for the work of elected officials and preservation commission
members.''^" Such a plan for Fredericksburg is absolutely necessary to help make sure that
fiiture city actions not only do not lead to the loss of any of the city's valuable historic, cultural,
and architectural resources, but also actively promote the cause of historic preservation within
the city in every way possible. Provisions (13. 1), (13.2), and (13.3) allow the Board to specify
the role each city agency should play in the future promotion of historic preservation concerns,
while provision (13.4) allows the Board to formulate and submit for adoption amendments to the
ordinance that are essential to furthering the intent and purpose of the ordinance. Provision

^^^ Ibid., Section 2, p. 8.
120 76/^., p. 6.

56

(13.4) is absolutely crucial to the ability of the Board to formulate and adopt the amendments
suggested as necessary for future inclusion in the ordinance in Chapter Five.

The fact that Number (13) requires that the historic preservation plan be adopted as part
of every comprehensive plan done for the City of Fredericksburg is significant for two reasons.
First, Texas Local Government Code requires municipalities to formulate and adopt zoning
regulations in according with a comprehensive plan.^^^ Therefore, including an historic
preservation plan for Fredericksburg in every comprehensive plan created for the city greatly
increases the chances that preservation goals and guidelines outlined in the plan will be taken
seriously by agencies of the city government. The second reason is that Fredericksburg did
implement the recommendation for the creation of a municipal historic preservation ordinance to
oversee a newly created historic district found in the comprehensive plan formulated for
Fredericksburg in 1985.^^^ Thus, it appears that Fredericksburg is taking seriously the
recommendations for action outlined in its comprehensive plans seriously. For these two reasons,
it is essential that the preservation plans formulated for Fredericksburg under the authority of the
Board be adopted as part of each comprehensive plan developed for the city.

The duties and powers granted the Board in numbers (1 1) and (12) of Subsection (h) of
the amended ordinance greatly expand the Board's current ability to recommend to the Planning
and Zoning Commission and the City Council the adoption of policies "that may further the city's
preservation effort." ^^^ Numbers (11) and (12) enable the Board to actively pursue the

^^^ Vernon's Texas Codes Annotated: Local Government, Vols. 1 & 2, Title 7, Subtitle
A, Chapter 211, Subchapter A, Section 211.0(M (St. Paul, MN: West Publishing Company,
1988), p. 379.

'^2 Fredericksburg, Texas, Fredericksburg Comprehensive Plan, 1985 (Austin, Texas:
Bovay Engineers, Inc., 1985), p. 101.

*23 F. Ord., Section 12.207, p. 12-9.

57

elimination of city regulations and policies outside of its immediate control that work against the
cause of preservation in the Fredericksburg and the stated purpose and intent of the city's
amended historic preservation ordinance. As has often been the case in cities throughout the
nation, municipal zoning regulations and fire and building codes that are uncoordinated with
historic preservation regulations can allow private individuals and even city agencies to evade the
provisions of historic preservation ordinances, thereby severely undermining the effectiveness of
preservation regulations and eroding the morale of preservationists in these municipalities. ■^'*
Numbers (11) and (12) seek to help the Board avoid such an unfortunate scenario in
Fredericksburg by allowing the Board to actively work toward the coordination of all relevant
city regulations and policies, so that these policies and regulations are at least benign and, better,
beneficial to the cause of historic preservation within the city. Provision number (11) allows the
Board as a whole to reconmiend at public meetings or hearings the rejection of proposed
regulations or policies which would be detrimental to preservation efforts within the city. Both
provisions (11) and (12) also enhance the Board's ability to influence the city's comprehensive
plan in such a way that recommendations for future amendments to city policies and regulations
that will better serve the implementation of the historic preservation plan can be formulated and
publicly endorsed for adoption as part of the latest comprehensive plan for the city.

Another important oversight duty given to the Board is found in number (17) of
Subsection (h). Among the special assessment districts that could affect designated landmarks
or historic districts in the city were they created is a business improvement district (BID).
Although Fredericksburg's main commercial district does not need the services of a BID at this
time of economic prosperity, a time may come when local merchants and business people desire
to create a BID to help draw customers back into the old commercial area. Since a significant

^'^^ See Chapter Three.

58

portion of the city's present commercial district lies within Fredericksburg's only current historic
district, it is extremely important that the Board be given an opportunity to review the functions
of any proposed BID. The Board could then recommend ways to make the BID's operational
practices and procedures completely compatible with and even complimentary to the city's historic
preservation regulations. This is just one example of the potential need for the oversight given
the Board in number (17) as Fredericksburg continues to grow and change.

Two of the provisions that better enable the Board to accomplish its oversight and
preservation planning duties are numbers (1) and (19) of Subsection (h). Number (1) allows the
Board to recommend the employment of professional historic preservation planning consultants.
Consultants could be used to carry out much of the work of formulating the various guidelines
needed by the Board, to help prepare the required historic preservation plan for the city, and to
advise the Board on whether to support or seek the amendment of current or proposed
regulations, policies, or special assessment/tax increment districts that are or may be harmful to
the cause of preservation in the city. The ability to recommend the employment of professional
preservation consultants when needed is an absolutely necessity for the Board, as it is for any
historic preservation commission of a small city like Fredericksburg. This is because the Board,
like many of these commissions, simply does not have enough members with the time and/or the
professional qualifications necessary to formulate all aspects of design guidelines, prepare an
entire preservation plan, or conduct a thorough investigation of the city's current zoning
regulations.

Provision number (19), however, allows the Board to create committees, so that those
members with the most experience or expertise in a given area of concern (e.g. the process of
formulating a municipal preservation plan) can guide the work of hired consultants performing
services in that area of concern. The committees can then present the finished products created

59

by the committees and/or the consuhants to the Board for adoption with explanations as to why
it is necessary or expedient to do certain things in certain ways. The formulation of special
committees, whether they be to guide the work of consultants or not, will allow the Board to
accomplish its duties and functions much more easily and efficiently than if the entire Board had
to be involved in every step of each action necessary to fulfill the requirements of the ordinance.
The continued growth of the city and the many new functions and duties required of the Board
under the amended ordinance simply necessitate that the Board be able to break up its work load
into manageable parts for committees to accomplish. The use of committees will not only be
beneficial to the members of the Board by streamlining the workload and the decisionmaking
process, it will also benefit historic preservation regulation in the community if the Board is
always able to respond quickly and efficiently to the needs of the city and the citizens it regulates.

The employment of a qualified person to act as city historic preservation officer referred
to in number (1) will also help make the duties of the Board and the enforcement of the ordinance
easier, since the creation of the position of an historic preservation officer for the city plays an
extremely crucial part in the accomplishment of one of the major goal of the amendments to the
ordinance: to greatly enhance and strengthen the regulations and expertise being applied to the
municipal efforts at historic preservation in Fredericksburg. However, an explanation of the
duties and functions of the office of Historic Preservation Officer created in Section 12.204 to
follow is reserved for the conmientary on Section 12.204 found in the next part of this chapter.

Although it is unnecessary to comment on most of the rest of the more self-explanatory
duties and functions invested in the Board in Subsection (h), it is important to emphasize the
potential public support for the amended ordinance the actions of the Board under numbers (15)
and (18) could gamer. Number (15) follows the requirements of the THC's model ordinance by
making it one of the duties of the Board to educate the public on the extremely important role

60

historic preservation plays on the social, cultural, and economic well being of the City of
Fredericksburg and its citizens. ^^^ The success of such education efforts is crucial to the
endeavor to gain enough public support for the amended ordinance, so that it may be made
permanent by a public vote of the City Council at the end of its four year trial period. ''"
Provision number (18), allowing the Board to publicly recognize good preservation efforts, is also
a provision required by the THC model ordinance, and is designed to engender acceptance of the
ordinance among the citizens of Fredericksburg. It is hoped that the creation and administration
of this system of recognition will encourage all owners of designated property, whether they
initially support the cause of historic preservation or not, to recognize the importance of their
designated properties to the community and work toward the further preservation of their
individual properties and the continued advancement of the cause of preservation within the
community as a whole. Furthermore, it is hoped that the positive press generated by the
recognition of these owners will serve as to teach the public of the importance of historic
preservation to Fredericksburg and thereby garner more crucial support for both the vote to
permanently enact the amended ordinance and the many decades under the regulations of the
ordinance to follow its permanent adoption.

Subsections (i) and (j) of §12.203 again insure public accountability for the actions of the
Board under Texas law, thereby helping to assure the citizens of Fredericksburg that they may
monitor the decisions and actions of the Board and publicly testify against or protest any actions
or decisions which they feel are overly excessive or unrequired. Once again it is hoped that the

125 THC, Section 2, p. 9.

12" The four year trial period for the amended ordinance is a key part of the provisions
of the ordinance designed to enable it to gain sufficient initial public acceptance to assure its
temporary enactment on a trial basis by the City Council. This provision is written into the
amended ordinance in Section 12.219 and commented on in Part X of this chapter.

61

requirement of open meetings and public records will be a selling point to the regulation-wary
citizens of Fredericksburg in public education campaigns aimed at gaining support for the
adoption of the amended ordinance. Finally, Subsection (l)'s conflict of interest clause for
members of the Board is essential to help guarantee that no member of the Board profits in any
way from his/her position of enforcing government historic preservation regulation on the people
of Fredericksburg. Were a member to profit from his/her position on the Board at the public's
expense, the repercussions would erode both public faith in the abilities of the Board and public
trust in historic preservation regulation in general. Such an unethical action would also probably
lead to the defeat of the amended ordinance at the end of its four year trial period.

62

IV. Section 12.204

§ 12.204 CITY fflSTORIC PRESERVATION OFFICER

The City Council shall, upon recommendation by the Historic Review Board and the City
Building Official, appoint a qualified individual to serve as City Historic Preservation Officer.
The Historic Preservation Officer shall administer this historic preservation ordinance and shall
advise the Historic Review Board on each application that shall come before the Board. This
person shall have expertise in historic preservation or architectural history as well as other
qualifications necessary to serve as a City Inspector under the City Building Official. ^^'

In addition to serving as representative of the Board, the City Historic Preservation Officer has
responsibility for coordinating the city's preservation activities with those of state and federal
agencies and with local, state, and national preservation organizations in the private sector. ^^°

The City Historic Preservation Officer shall recommend to the Board buildings, objects, sites,
structures, and districts for designation as landmarks or historic districts in accordance with the
criteria established by this ordinance. ^^^

The City Historic Preservation Officer may also recommend to the Board buildings, objects, sites,
structures, and districts for nomination to the National Register of Historic Places. Such
recommendations shall be guided by the criteria established in the National Historic Preservation
Act of 1966, as amended. '-^^

In addition to completing the duties and fiinctions of City Historic Preservation Officer, the
individual hired as the City Historic Preservation Officer shall carry out the duties of a City
Building Inspector on a part time basis under the direction of the City Building Official.
However, the duties of City Historic Preservation Officer shall control the time, energy, and
loyalty of the appointed individual above his/her duties as part time Building Inspector. In order
to avoid a conflict of interest, the individual hired as the City Historic Preservation Officer shall
not issue permits, certificates of appropriateness, or violations or stop-work orders as both the
City Historic Preservation Officer and a Building Inspector on the same work project for the same
owner or applicant.

^^^ Adaptation of S.A. Ord., Section 35-424, p. 13.
^2^ S.A. Ord., Section 35-424, p. 13.
^29 Ibid., pp. 13-14.
^30/fti^.,p. 14.

63

Analysis and Commentary on § 12.204

The creation of the office of City Historic Preservation Officer not only is a requirement
of a municipality seeking to obtain CLG status with an approved historic preservation ordinance,
but also is absolutely necessary to insure that the duties and functions required of the Board by
Section 12.203 of the amended ordinance will be accomplished and that all of the regulations of
the amended ordinance will be enforced. In fact, the office of City Historic Preservation Officer
is the heart of the administration and the enforcement of the amended historic preservation
regulations.

Under Fredericksburg's current ordinance, the Building Official acts in the capacity of
the Historic Preservation Officer, having the authority to decide which applications for certificates
of review are approved (with the concurrence of the Chairman or Vice-chairman of the Board)
and which should go before the Board for approval. ^^^ The potential for error in reviewing
and approving applications for certificates of review is significant, since the Building Official and
perhaps the Chairman or Vice-chairman lack the expertise necessary in some cases to determine
whether or not a new structure, a method of ordinary repair or maintenance, or a change,
alteration, restoration, or removal of an exterior architectural feature will in fact irrevocably alter
the historic, cultural, or architectural character of a designated resource.'-'''

The requirements under the amended ordinance that the City Historic Preservation Officer
have "expertise" in historic preservation or architectural history and that the Chairman and Vice-
chairman of the Board each have at least one year of experience on the Board are designed to

^^^ See Section 12.205 of Fredericksburg's current historic preservation ordinance in
Appendix A.

^^^ See Section 12.205 of the current ordinance in Appendix A.

64

lesson the potential for error in decisions approving certificates of appropriateness for ordinary
maintenance and repair projects. However, even with the expertise required of the City Historic
Preservation Officer, no single individual is allowed to make decisions concerning whether or not
a proposed action will alter the character of a designated property under the amended
ordinance. ^^^ The risk for error or bias is simply too great.

A City Historic Preservation officer is also needed to provide the levels of administration
and enforcement required under the amended ordinance. The greatly expanded powers of
regulation, the new duties and functions given the Board, and the potential for a significant
expansion in the number of properties in the city designated under the ordinance all require a
level of administration and enforcement above and beyond the time and expertise that can
realistically be provided by the reestablished Board and the Building Official. The timely
processing of certificates of appropriateness applications simply will not be achieved if the
number of designated properties increases and each application must await processing by an
already overworked Building Official, whose primary loyalty and allocation of time is not to the
administration of the ordinance in the first place. Such a backlog of applications and its resulting
inconvenience certainly will not endear the ordinance to owners of designated properties,
especially owners of designated properties used for business. In fact, these owners will come to
hate the ordinance's regulation, begin to seek ways of escaping compliance with it, and actively
work for the termination of the ordinance when it comes up for the City Council's vote after four
years. Owners of businesses may even file lawsuits against the city if its failure to administer
the preservation regulations in a timely manner causes them a loss of business.

^•^•^ See Section 12.209 in Appendix B for a description of the duties of the City Historic
Preservation Officer in regard to the review and approval or denial of applications for
certificates of appropriateness.

65

A designated City Historic Preservation Officer (CHPO) with expertise in historic
preservation or architectural history is, therefore, needed to handle the day-to-day administration
of the ordinance in place of the Building Official . The expertise required of the CHPO will also
give the Board confidence in his/her abilities and judgements, so that its members will feel well
assured that the CHPO is capable of helping them carry out many of the expanded duties and
functions of the Board (such as the processing of certificate of appropriateness applications which
require a Board hearing, carrying out the actual "leg work" of inventorying historic properties
in the city, and recommending properties for designation) which the members simply do not have
the time as volunteers to carry out. The Board will, however, still maintain complete oversight
and responsibility for the administration of the ordinance.

Furthermore, the appointment of a qualified CHPO will help the city obtain CLG
designation by the Texas Historical Commission. The CHPO will give the Board and the city
government in general someone to act as a liaison to the THC and actively seek the financial and
technical assistance offered CLGs by the THC as well. The appointed CHPO also can solicit
additional technical and financial assistance from Preservation Texas, Inc.,^^'* and other local,
state, and federal agencies and preservation organizations as needed by the Board.

Finally, the establishment of the office of City Historic Preservation Officer is critical to
the enforcement of the expanded regulations in the amended ordinance. Under the current
ordinance, "property city officials, or their duly authorized representatives" are given the
responsibility of enforcing the regulations of the ordinance. ^•^^ Thus, no specific city official
is actually responsible for enforcement, although the term "property city officials" and the fact

Preservation Texas, Inc. is the statewide nonprofit historic preservation organization
for Texas.

•35 F. Ord., Section 12.209, p. 12-10.

66

that the Building Official is responsible for receiving and reviewing applications for certificates
of review would seem to at least imply that the City Building Official is the most likely candidate
to enforce the ordinance. Unfortunately, even if the Building Official were officially charged
with the responsibility of enforcing the ordinance, his/her lack of knowledge or training in
historic preservation in general or architectural history in particular means that the potential is
there for him/her to miss a subtle, illegal addition or alteration to a designated historic property.
The continued growth of the city has also greaUy increased the work load of the Building
Official, so that, were he and ftiture BuUding Officials officially charged with the duty of
enforcing the amended ordinance, they would find it difficult to set aside the time to adequately
perform the duty. This would especially be the case if many more properties were designated
as historic under the temporarily amended ordinance.

The appointment of a qualified CHPO who is specifically designated to enforce the
amended ordinance^ ^^ will give the Board a person who not only has the time and expertise
to periodically inspect designated properties for compliance with the ordinance, but who also will
pursue the imposition of penalties on those who violate the ordinance. The stipulation that the
CHPO also fulfill the duties of a building inspector on a part-time basis under the direction of
the City Building Official will give the CHPO even more opportunity to examine building
projects being carried out on designated landmarks or within historic districts for compliance with
the amended ordinance's regulations. Furthermore, the conflict of interest clause in Section
12.204, which prohibits the CHPO from issuing permits, certificates of appropriateness, or
violations or stop-work orders as both the City Historic Preservation Officer and a Building
Inspector on the same work project, will also insure that all city codes and ordinances will be

^^^ See subsection 12.209.5 and Section 12.216 of the amended ordinance in Appendix
B.

67

strictly and properly enforced. The CHPO will be prevented from allowing his/her sympathy for
a particular preservation project to cloud his/her judgement concerning the level of safety of the
desired project or tempt him/her to be lax in the application of the city's building and safety
codes upon inspection, and vice versa. The fact that the CHPO can fulfill the city's recognized
immediate need for another building inspector working on a at least a part-time basis*-" will
hopefully make city officials more receptive to the idea of creating an office of City Historic
Preservation Officer, especially if his/her salary can be paid in part out of fees charged for
certificate of appropriateness review by the Board. ^^^ The part-time arrangement should
also make the Council more supportive of the adoption of the amended ordinance in general.

In closing, it must be noted that the term "expertise," in reference to the requirement that
the person appointed CHPO "shall have expertise in historic preservation or architectural
history," is an intentionally vague term. It is meant to allow a local citizen who obviously has
extensive knowledge and experience in historic preservation but who does not have a degree in
the field (such as a former Chairman or Vice-chairman of the Board) to qualify for the office.
In fact, it is meant to encourage qualifying local citizens to apply for the position, since, in
Fredericksburg, as in any other small town, people feel more comfortable with a person they
know or whose family name they recognize. A long-time citizen CHPO also will be more
understanding of and responsive to the special needs and concerns of local citizens to a greater
degree than a CHPO who moves in from another town or state, at least at initially. A local

^^"^ According to the City Secretary, there is acknowledgement among city officials of
the need for another city inspector to work on at least a part-time basis. Shelley Britton, City
Secretary, City of Fredericksburg, Texas, conversation with author, 4 January 1996,
Fredericksburg, Texas.

^^^ See Chapter Five.

68

CHPO will therefore help generate more crucial support for and cooperation with the amended
ordinance's regulations among the citizenry than could an outsider.

Of course, it is admittedly hard to be an expert in architectural history without a degree
in the subject, and it is doubtftil that many citizens of Fredericksburg hold such a degree or have
such extensive icnowledge in the field of architecture to qualify as an expert in architectural
history. Because of this fact and the importance of having a CHPO who is a bona fide expert in
historic preservation or architectural history, the Board should not be discouraged from actively
recruiting someone from another municipality or state to accept the position.

69

V. Sections 12.205 - 12.208

§ 12^05 Criteria and Process for Recommending the Designation of Historic

Landmarks and Historic Districts

139
§ 12.205.1 Criteria for the Designation of Historic Landmarks and Historic Districts

A historic landmark or district may be designated if it:

(a) Possesses value as a visible example or reminder of the history or cultural
heritage of the community, county, state, or nation;

(b) Is the site of a significant local, county, state, or national event in history;

(c) Is an archaeological site that reveals information about the history or
prehistory of the area;^'*^

(d) Is identified with a person or persons who significantly contributed to the
development of the community, county, state, or nation;

(e) Is identified as the work of a master builder, designer, or architect whose
individual work has influenced the development of the community, county, state,
or nation;

(f) Embodies distinguishing characteristics of an architectural style valuable for
the study of a period, type, method of construction, or use of indigenous
materials;

(g) Possesses historical, architectural, or cultural character as a particularly fine
or unique example of a utilitarian structure, including, but not limited to, bams
or other agricultural outbuildings, stables, bridges, gas stations, and other
commercial structures;

^3^ The components of this section are adaptations of S.A. Ord., Section 35.430.1, pp.
19-20, unless otherwise noted.

^^ This provision is written to comply widi THC ordinance requirements for CLG
status, THC, p. 11, but is not similar in any way, shape, or fashion to any provision
concerning archaeology found in THC guidelines, the San Antonio ordinance, or any other
ordinance referred to as a primary source in this thesis.

70

(h) Is a unique location or possesses singular physical characteristics representing
an established and familiar visual feature of a neighborhood, community, or the
city;^'*^

(i) Represents a resource, whether natural or man-made, that greatly contributes
to the character or image of a defined neighborhood or community area.

(j) Possesses historical, architectural, or cultural integrity of location, design,
materials, and workmanship;

(k) Embodies character as a geographically definable area possessing a significant
concentration, linkage, or continuity of historically, architecturally, or culturally
significant sites, buildings, objects, or structures united by past events or
aesthetically by plan or physical development; and

(1) Possesses character as an established and geographically definable
neighborhood, united by culture, architectural style, or physical plan and
development.

Additional Criteria for the designation of historic districts: Before a proposed historic district
may be recommended to the Board for designation by the City Historic Preservation Officer,
documentary evidence must be obtained which proves that at least fifty-one percent (5 1 %) of the
owners of property located within the boundaries of the proposed historic district concur with the
recommendation for the designation of the proposed historic district.^

§ 12.205.2 Process for Reconmiending the Designation of Historic Landmarks and Historic
Districts

Requests for designation shall be made on a form obtained from the City Historic Preservation
Officer. Completed request forms shall be returned to the Office of the City Historic
Preservation Officer for processing. The City Historic Preservation Officer shall recommend to
the Board buildings, objects, sites, structures, and districts for designation as landmarks or
historic districts in accordance with the criteria established in § 12.205.1 of this ordinance.
Approved recommendations for landmark or historic district designations are then made by the
Board to the City Council through the Planning and Zoning Commission. In the event the Board
does not recommend an applicant's request for designation of a resource, the applicant may
petition the Planning and Zoning Commission for a hearing at the next scheduled meeting of the
Planning and Zoning Commission.

^^^ Adaptation of F. Ord., Section 12.203, p. 12-6 and S.A. Ord., Section 35-430.1, p.
19.

^^^ Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision B(4), p. II.

^^'^ Ibid.,^^. 18-19.

71

§ 12.206 Designation of Historic Landmarks and Historic Districts

The City Council may designate by ordinance certain areas in the City of Fredericksburg as
historic districts and certain places, buildings, objects, sites, structures, or clusters as historic
landmarks. ^^ The following provisions pertaining to the designation of historic landmarks
and historic districts constitute a part of the comprehensive zoning plan of the City of
Fredericksburg. ^'*^

§ 12.206.1 Historic Landmarks

(a) Property owners of proposed historic landmarks shall be sent written notice by certified mail,
return receipt requested, informing them that their properties have been recommended for
designation, stating the reasons for recommendation, and indicating the date, time, and place of
the public hearing of the Board to consider the recommended designation. Such notice shall be
sent at least thirty (30) days prior to the public hearing of the Board and shall be sent to both the
registered property owners' last known address as it appears in the Official Public Records of
Real Property of Gillespie County and the street addresses of the properties recommended for
designation.*'^ At the Board's public hearing, owners, interested parties, and technical
experts may present testimony or documentary evidence which will become part of a record
regarding the historic, architectural, or cultural importance of the proposed historic
landmark. ^^'

(b) Upon recommendation of designation by a two-thirds (2/3) vote of the Board, the proposed
historic landmark designation shall be submitted to the Planning and Zoning Commission within
thirty (30) days from the date of the formal submittal of the designation request by the Board.
The Planning and Zoning Commission shall give public notice and conduct its hearing on the
proposed designation within forty-five (45) days of the receipt of such recommendation from the
Board. Such hearing shall be in the same manner and according to the same procedures as
specifically provided in the general zoning ordinance of the City of Fredericksburg. The
Planning and Zoning Commission shall make its recommendation to the CiW Council within
forty-five (45) days subsequent to the hearing on the proposed designation. ^^°

(c) The City Council shall schedule a hearing on the Planning and Zoning Commission's
recommendation to be held within forty-five (45) days of receipt of the recommendation of the

^^ Adaptation of S.A. Ord., Section 35-425, p. 14.

^^^ Adaptation of 77/C, p. 9.

^^ Adaptation from Philadelphia, Pennsylvania, "City of Philadelphia Bill No. 318,"
Section 14-2007, Subsection (6).

^^^ Adaptation of TTiC, p. 9.

^"^^ Ibid., pp. 9-10.

72

Planning and Zoning Commission. The City Council shall give public notice, follow the
publication procedure, hold its public hearing, and make its determination on the proposed
designation in the same manner and within the same time limit as provided in the general zoning
ordinance of the City of Fredericksburg. ''*^

(d) Upon designation of a building, object, site, or structure as an historic landmark by the
affirmative majority vote of the City Council, the City Council shall cause the designation to be
recorded in the Official Public Records of Real Property of Gillespie County, the tax records of
the City of Fredericksburg, and the Gillespie Appraisal District as well as the official zoning
maps of the City of Fredericksburg.'^^ Such designation shall be in addition to any other
zoning district designation established in the zoning ordinance. All zoning maps shall reflect the
historic landmark by the letter "H" as a suffix to the use designated.'^ The City Secretary
shall send written notice of the fact of designation by certified mail, return receipt requested, to
the owner(s) of the designated landmark within ten (10) days after the designation of the landmark
by the City Council.'^

§ 12.206.2 Historic Districts

(a) All owners of property within a proposed historic district shall be sent written notice by
certified mail, return receipt requested, informing them that their properties have been
recommended for designation, stating the reasons for recommendation, and indicating the date,
time, and place of the public hearing of the Board to consider the recommended designation.
Such notice shall be sent at least thirty (30) days prior to the public hearing of the Board and
shall be sent to both the registered property owners' last known addresses as they appear in the
Official Public Records of Real Property of Gillespie County and the street addresses of the
properties recommended for designation. Notice of the proposed designation of an historic
district shall be published in a newspaper having general circulation within the city at least (30)
days prior to the public hearing of the Board to consider the recommended d^ignation and shall
indicate the date, time, and place of the said public hearing of the Board. '^^ At the Board's
public hearing, owners, interested parties, and technical experts may present testimony or
documentary evidence which will become part of a record regarding the historic, architectural,
or cultural importance of the proposed historic district.'^'*

^"^^ Ibid., p. 10.

'50 Adaptation from 7HC, p. 10.

'5' F. Ord., Section 12.203, p. 12-6.

'52 s.A. Ord., Section 35-428, p. 18.

'53 Adaptation from Philadelphia, Pennsylvania, "City of Philadelphia Bill No. 318,"
Section 14-2007, Subsection (6).

'5^^ Adaptation of THC, p. 10.

73

(b) Upon recommendation of designation by a two-thirds (2/3) vote of the Board, the proposed
historic district designation shall be submitted to the Planning and Zoning Commission within
thirty (30) days from the date of the formal submittal of the designation request. The Planning
and Zoning Conmiission shall give public notice and conduct its hearing on the proposed
designation within forty-five (45) days of the receipt of such recommendation from the Board.
Such hearing shall be in the same manner and according to the same procedures as specifically
provided in the general zoning ordinance of the City of Fredericksburg. The Planning and Zoning
Commission shall make its recommendation to the Ciw Council within forty-five (45) days
subsequent to the hearing on the proposed designation. ^^^

(c) The City Council shall schedule a hearing on the Planning and Zoning Commission's
reconmiendation to be held within forty-five (45) days of receipt of the recommendation of the
Plarming and Zoning Commission. The City Council shall give public notice, follow the
publication procedure, hold its public hearing, and make its determination on the proposed
designation in the same manner and within the same time limit as provided in the general zoning
ordinance of the of the City of Fredericksburg. ^^"

(d) Upon designation of an historic district by the majority vote of the City Council, the City
Council shall cause the designation to be recorded in the Official Public Records of Real Property
of Gillespie County, the tax records of the City of Fredericksburg, and the Gillespie Appraisal
District as well as the official zoning maps of the City of Fredericksburg.^^' Such
designation shall be in addition to any other zoning district designation established in the zoning
ordinance. All zoning maps shall reflect the historic district by the letters "HD-C" as a prefix
to the use designated for the properties within the historic district determined to be contributing
to the general character of the historic district by the nominating document completed for process
of nominating the historic district and by the letters "HD-NC" as a prefix to the use designation
for the properties within the historic district determined to be non-contributing to the general
character of the historic district by the nominating document completed for process of nominating
the historic district. ^^^ The City Secretary shall send written nofice of the fact of designation
by certified mail, return receipt requested, to the owners of all the properties located within the
designated historic district within ten (10) days after the designation of the historic district by the
City CouncU.*^^

155 Ibid.

156 itid.

157 Ibid.

158 Adaptation of F. Ord., Section 12.203, p. 12-6

159 Adaptation of S.A. Ord., Section 35-428, p.

n

74

§ 12.207 Uses of Property Designated Historic

Nothing contained in this ordinance or in the designation of property as being an historic
landmaric or an historic district shall affect the present legal use of property. Use classifications
as to all such property shall continue to be governed by the zoning ordinance of the City of
Fredericksburg and the procedures therein established. In no case, however, shall any use be
permitted that requires the demolition, relocation, or alteration of historic landmarks or of any
buildings or structures in an historic district so as to adversely affect the character of the district
or historic landmark, except upon compliance with the terms of this ordinance.

No provision herein shall be construed as prohibiting a property owner from continuing to use
property for a nonconforming use as that term is defined in the City of Fredericksburg Zoning
Ordinance, §5.100.^^

§ 12.208 Removal of Designation

Upon recommendation of the Board based upon new and compelling evidence and negative
evaluation according to the same criteria and following the same procedures set forth herein for
designation, a designation made under § 12.205 may be removed by the City Council following
the recommendation of the Board. '"^

Analysis and Commentary on § 12.205, 12.206, 12.207, and 12.208

Section 12.205 expands the criteria used to designate historic districts and landmarks
under Section 12.203 of the current ordinance'"^ in order to allow the criteria to meet the
standards set by the Texas Historical Commission's model ordinance for local governments
seeking CLG status.'"-^ One of the primary THC criteria requirements missing from the
current ordinance is the ability to designate any resource which "possesses significance

1^ Ibid., Section 35-426, p. 17.
161 Ibid., Section 35-427, p. 18.
" See Appendix A.
163 THC, Section 6, pp. 10-11.

75

in... archeology."*^ As mentioned in the Preamble and Section 12.201 of this chapter, the
THC's Guidelines for Drafting Historic Preservation Ordinances and Model Ordinances allows
local governments to exclude specific references to archaeological resources in their ordinance
if archaeological sites are not part of the inventory of the area's historical or cultural
resources. *^^ However, the THC requires local governments seeking CLG sUtus to at least
include archaeological sites within the criteria for resources eligible for designation in order to
satisfy federal regulations under the criteria established by the National Register of Historic
Places.

Sections 12.205.1(e) and (f) are also included in the amended ordinance to satisfy THC
requirements that resources that embody the "distinctive characteristics of a type, period, or
method of construction" or which represent the "work of a master designer, builder, or
craftsman" also be eligible for designation. ^^ Sections 12.205.1(g), 0). and (k) provide
criteria above and beyond that required by the THC. Section 12.205.1(g) allows for and
encourages the designation of utilitarian resources, which are often overlooked or considered
unimportant to the history or culture of a municipality or to the advancement of architecture or
engineering in the local area. The large number of early bams and other agricultural outbuildings
that have survived intact as the city has grown up around them should be considered as important
to the history, culture, and architecture of the community as are the architecturally elaborate
commercial buildings in the city's main business district. Finally, Section 12.205.1(g) and (h)
provide more specific definitions as to what constitutes an historic district as a cohesive.

*^ Ibid., p. 11.

*65 Ibid., p. 1.

166 jjfQ Section 6, p. 11.

76

geographically definable area than the information given under the criteria for historic districts
in § 12.205(a) of the current ordinance. ^^^

Another criterion which is not listed as a THC requirement is the criterion that fifty-one
percent of the owners of property within the boundaries of a proposed historic district concur
with the reconmiendation that the proposed area be designated an historic district. The certified
local government cities of Fort Worth and San Antonio both have similar owner approval
requirements for historic district nominations in their respective ordinances, so it is clear that this
is a criterion that will not exclude Fredericksburg from CLG designation under THC
requirements. Furthermore, it is politically expedient to include this criterion, so that the
amended ordinance will have a better chance of being initially adopted and then permanently
enacted by the City Council after four years in place on a trial basis.

The fifty-one percent concurrence provision will help ease citizens' fears that historic
district designation will be forced upon them by a Board of ideological-minded individuals bent
on the regulation of large areas of private property, regardless of established democratic processes
or the property-rights concerns of the property owners who will be affected. With the inclusion
of this provision, the people of Fredericksburg will see that they have a choice as to whether or
not they wish to accept historic district designation. They will know that they may in fact reject
historic district regulation if a majority of owners is not convinced that the district is in their best
interest and that of the city and/or that the regulation accompanying designation is harsh and
undesirable. Thus, it is hoped that this democratically-based, majority rule provision, which must
be satisfied even before an historic district is recommended to the Board for designation, will help
create a stronger support for the adoption of the amended ordinance among people currently
concerned about excessive government regulation and the protection of property rights.

^ See Appendix A.

77

The requirement that an historic district must have received the support of a majority of
the district's property owners to have been designated an historic district is also potentially
beneficial to the Board. Such a democratic majority -based decision will help the Board justify
the inclusion and necessary regulation of non-contributing properties within designated historic
districts to the owners of these non-contributing properties. "° Of course, this owner consent
provision puts a burden on the City Historic Preservation Officer, the Board, and its citizen allies
to educate the owners of the properties within the proposed historic district about the necessity
and value of historic preservation regulation. This is as it should be, though. All agencies of
historic preservation regulation should be required to at least attempt to educate people on the
personal and societal benefits offered by historic preservation before these agencies require people
to submit to regulation and cooperate with such regulation.

The CHPO, the Board, and its citizen allies should also attempt to educate individual
owners of resources recommended for landmark designation about the personal and communal
value of historic preservation, although in the case of historic landmarks, the amended ordinance
does not require that owner consent be obtained before a resource can be recommended or
approved for landmark designation. The lack of consent of an individual property owner should
not prevent the preservation and protection of a resource that is significant to the history or
representative of the architecture or culture of an area, that has been a physical part of the
community probably long before the birth of the present unconsenting owner, and that will
probably be a physical component of the community long after the death of the present owner.
Thus, the advancement of the general welfare of a community through historic preservation
should not be inhibited by or considered subordinate to the desires of individuals. Owner consent

^^^ See the definition of "NON-CONTRIBUTING" in Section 12.202 of the amended
ordinance in Appendix B.

78

for the designation of historic landmarks is not required under the Texas and U.S.
constitutions, "" and the THC's model ordinance does not require such a consent provision
to be included in the ordinances of certified local governments.

Furthermore, it is legal under Texas law to require majority consent for the designation
of historic districts but not to require individual owner consent for the designation of historic
landmarks. Fort Worth, which is a certified local government under THC standards, has an
historic preservation ordinance that does not require owner consent for the designation of historic
landmarks, but does require the consent of a majority of landowners before an historic district
may be designated. Thus, the presence of one form of owner consent and the absence of another
form within the amended ordinance will still allow Fredericksburg to qualify for CLG status.

It is arguable that the requirement of majority-based owner consent for historic district
designation in the absence of a requirement of owner consent for historic landmark designation
is unjust and inconsistent, and indeed it may be. However, the conservative politics of the
situation in Fredericksburg dictates that, in order to gain enough support for first the initial
adoption of the ordinance by the City Council and then the designation of any potential historic
district under the regulations of the amended ordinance, the ordinance must cater to the ingrained
and expected political practice of allowing decisions that affect a large number of people to be
decided by the majority vote of those people affected in a fair and democratic process. It is
hoped that, even without an owner consent provision provided under the criteria for the
designation of historic landmarks, the many requirements in place in Section 12.206 that must
be fulfilled before a proposed landmark is designated will assure the citizens of Fredericksburg
that the landmark designation process is extremely democratic, entirely open to public scrutiny,
and thereby fair to all parties involved.

169 jfjQ Section 6, p. 11.

79

Indeed, the process required to secure the designations of both historic districts and historic
landmarks in Section 12.206 is filled with checks against undesired regulation through designation
by the Board. Many of these "checks" go beyond the basic requirements of the THC's model
ordinance to insure both the opportunity for public objection to designation and ftill public
accountability for the act of designation. The requirement that written notification of
recommended designation be mailed to two different addresses within a given time period in
subsections 12.206.1(a) and 12.206.2(a) and the newspaper publication requirement in Section
12.206.2(a) significantly exceed the similar THC requirement that an owner of a property
recommended for designation simply "shall be notified prior to the Commission hearing on
recommended designation."^'" These additional provisions are in place to assure the citizens
of Fredericksburg that every possible effort will be made to make sure that owners of property
recommended for designation receive notification of the fact that their property has been
reconmiended within a time period well in advance of the public hearing on the recommendation.
Such advanced notification, in turn, will allow them to prepare a case against the recommendation
(either individually or collectively in the case of historic district designations) if they so desire.
Furthermore, since the Board must hold a public hearing under Texas law in order to
decide to recommend or reject a resource for designation, any property owner or group of
property owners has a right under the law to publicly protest the designation of his/her or their
property and to try and persuade the members of the Board to vote against recommending his/her
or their property for designation. The fact that a vote of two-thirds of the Board is required
before the Board may recommend the designation of any resource to the Planning and Zoning
Commission should also help placate citizens who might feel that the hearing on the
recommendation of a designation is simply a legal formality which results in the automatic

170 jfjQ Section 4, pp. 9-10.

80

approval of all recommendations regardless of public testimony. It will not be an easy task for
two-thirds of the members of the Board, who are publicly held accountable to their friends and
neighbors for their actions by the means of a public hearing, to vote in favor of recommendation
in the face of strong, public objection by the owner(s) of property recommended for designation
unless the members truly believe it is in the best interest of the community to do so. This fact
should be also be pointed out to the community through the education campaign to gain support
for the temporary adoption of the amended ordinance as a reason for citizen support of the
temporary adoption.

Thus, the two-thirds vote provision actually favors property owners who do not wish their
property to be designated. In fact, the requirement is especially designed as a check to provide
individual property owners whose property has been recommended without their consent for
designation as historic landmarks more than adequate due process for the designation of their
property under the law, thereby helping to protect them against excessive govenmient abuse of
the power to designate and regulate property under the historic preservation ordinance.

The two-thirds vote goes beyond the simple majority vote required by the THC's model
ordinance for Board recommendation for designation.^ '^ However, the presence of a similar
voting requirement for landmark designation recommendation in San Antonio's ordinance
indicates that such a requirement will not jeopardize Fredericksburg's chances of being designated
a certified local government by the THC. * '^

The amended ordinance does utilize two other due process protections required by the
THC model ordinance as further checks against excessive Board action. Both subsections
12.206.1 and 12.206.2 require that resoiu-ces recommended for designation by the Board be

^"^^ Ibid., pp. 9-10.

^"^2 s.A. Ord., Section 35-425.3, p. 15.

81

approved by both the Planning and Zoning Commission and the City Council at separate public
meetings before such resources may in fact be designated and regulated. These additional
requirements for designation assure property owners that they have two additional opportunities
to publicly plead their cases against the designations of their properties before two goverrmient
bodies which have the power to halt the Board's drive for the designation of their properties.
In the case of the City Council hearing, property owners opposing the designation of their
properties know they have strong clout with members of the Council, who directly depend on the
votes of constituents to be reelected to office. Thus, here again it should be obvious to the
citizens of Fredericksburg who may be worried about granting excessive designation powers to
the Board through the amended ordinance that the requirements for additional public approval for
designations beyond the Board's decision at its public hearing make it necessary for the Board,
the CHPO, and their preservation allies to have a very strong case prepared explaining the public
necessity for particular landmark designations. Such a strong case preparation will be needed in
order to counter the heavy weight a nonconsenting property owner will carry with the members
of the Planning and Zoning Commission and particularly with the members of the City Council.
Two other provisions designed to allay the fears of citizens worried about excessive
government regulation and the protection of property rights are Sections 12.207 and 12.208.
Although not a part of the THC's requirements for ordinances. Section 12.207 is included to
assure the people of Fredericksburg that historic landmark or historic district designation legally
cannot and therefore will not affect the legal use of designated property, even if such property
is legally nonconforming under present zoning usage regulations. Accordingly, historic
designation will not violate any property rights under federal or Texas law concerning excessive
government regulation of the usage of private property.

82

The ability of the City Council to remove a designation as outlined in Section 12.208 is
also not a required provision under THC ordinance guidelines. However, such a provision is
useful in any ordinance in order to allow properties that no longer qualify for designation, due
to a destructive act of God or the willful destruction of man, to be removed from government
preservation regulation. This provision is designed to provide legal assurance to the owners of
designated properties that they will not be held continually, legally responsible for the protection
and preservation of designated properties that have lost their historical, cultural, or architectural
significance through no fault of the owners themselves. The provision is also meant to give
psychological assurance to the citizens of Fredericksburg that designations are not necessarily
permanent.

It is hoped that the many provisions limiting the power and authority of the Historic
Review Board that are included in Sections 12.205 through 12.208 and that have been conmiented
on extensively in this part of the chapter can be used by the proponents of the amended ordinance
to help convince the citizens of Fredericksburg to at least support the temporary adoption of the
amended ordinance for a trial period of four years. Pro-preservationist forces in the city should
call to the public's attention the fact that many of the requirements for the designation of historic
landmarks and historic districts, as well as the sections protecting the continued usage of
designated properties and allowing for the removal of designations, exceed Texas Historical
Commission requirements for preservation ordinances. This fact will demonstrate to the
government regulation-wary citizens of the city that the proposed amended ordinance has been
meticulously written to specifically guard against the undemocratic imposition of excessive
govenunent regulation on anyone and against the violation of anyone's individual property rights.
It is also hoped that once the amended ordinance is adopted for its four year trial period, the
citizens of Fredericksburg will witness first-hand that the ordinance provides a highly democratic

83

process for designating properties as historic, complete with an elaborate system of due process
that is designed to check any excessive or capricious action of the Board or the CHPO.
Witnessing the actual process should help convert many skeptics who refused to support the
temporary enactment of the ordinance and cause them to support the permanent adoption of the
amended ordinance when it comes before the City Council for a vote.

In fact, Section 12.205.2 is in place in part to encourage public participation in the
process of designating the many important historic, cultural, and architectural resources in the
City of Fredericksburg that have not been designated under the current ordinance. This section
is designed to go beyond minimum THC ordinance requirements and specifically outline the
initial process that must be followed in order to place a recommendation for designation before
the Board - an outline of a process it would seem should be an important requirement of any city
preservation ordinance deserving of CLG status, especially since the process allows and
encourages citizen participation in historic preservation regulation. It is hoped that by allowing
anyone to submit a form requesting designation, both local preservation organizations and
ordinary citizens will not only be encouraged to submit designation requests, but will also be
recruited by the CHPO and/or the Board to help in the process to designate significant resources
within the community. An appeals process is even incorporated into the section to allow those
local organizations or individual citizens who are adamant about the importance of designating
a particular resource to appeal a denial of recommendation for designation by the Board to the
Planning and Zoning Commission.

The many concessions to the political situation in Fredericksburg made in the ordinance
in Sections 12.201 through 12.208, combined with the provision in Section 12.219 that allows
the temporary amended ordinance to expire in four years unless permanently adopted by the City
Council, are the primary means by which it is hoped the fears of some of the citizens concerning

84

excess government regulation and property rights violations can be overcome to allow the
ordinance to be temporarily enacted by the City Council on a four year trial basis. Although
some significant political concessions also exist in the following sections of the ordinance, it is
these sections that are intended to provide many strong, additional regulations which are
necessary to the cause of historic preservation in Fredericksburg but which are missing from the
city's current, weak ordinance. Thus, once the Board is able to complete the long and trying
process of securing designation from the City Council, strict new regulations will come into
existence on the designated properties that should be adamantly enforced.

85

VI. Sections 12.209 - 12.212

§ 12.209 Certificates of Appropriateness

No person shall carry out any construction, reconstruction, alteration, installation, maintenance,
repair, restoration, rehabilitation, demolition, or relocation of any historic landmark or any
property within a historic district, nor shall any person add, remove, or make any material change
in the light fixtures, signs, sidewalks, fences, steps, paving, or other exterior elements visible
from a public right-of-way which affect the appearance and cohesiveness of any historic landmark
or any property within an historic district without first obtaining a certificate of appropriateness
for any such action from the Historic Review Board or a permit to carry out work deemed
ordinary repair and maintenance, which excuses an applicant from obtaining a certificate of
appropriateness, from the City Historic Preservation Officer. '^

§ 12.209.1 Criteria for Approval of a Certificate of Appropriateness

In considering an application for a certificate of appropriateness, the City Historic Preservation
Officer (hereafter referred to as the "Officer") and the Board shall be aware of the importance
of finding a way to meet the current needs of the property owner. The Officer and the Board
shall also recognize the importance of approving plans that are economically reasonable for the
property owner to carry out.^''*

The design guidelines authorized in § 12.203(h)(9) and adopted by die Historic Review Board,
Article 3.1000 Signs, as temporarily amended, ^'^ and, where applicable, the following lirom
The Secretary of the Interior's Standards for the Rehabilitation of Historic Buildings, shall guide
the Officer and the Board in its considerations of applications for certificates of appropriateness.

(a) Every reasonable effort shall be made to adapt the property in a manner
which requires minimal alteration of the building, structure, object, or site and
its environment.

^"^3 Adaptation of THC, Section 7, p. 11, and S.A. Ord., Section 35-434.3, p. 31.

^^'^ Adaptations of S.A. Ord., Section 35-434, p. 27, and F. Ord., Section 12.206, p.
12-9.

175 Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 3, pp. 3-56 - 3-
64. The temporary amendment needed to allow Article 3. 1000 to conform to the regulations
of the amended historic preservation ordinance are discussed in Chapter Three.

86

(b) The distinguishing original qualities or character of a building, structure,
object, or site and its environment shall not be destroyed. The removal or
alteration of any historic material or distinctive architectural features should be
avoided when possible.

(c) All buildings, structures, objects, and sites shall be recognized as products of
their own time. Alterations that have no historical basis, that seek to create a
false set of development (such as adding conjectural features or architectural
elements from other structures and properties), and that seek to create an earlier
appearance shall be discouraged.^ '"

(d) Changes which may have taken place in the course of time are evidence of the
history and development of a building, structure, object, or site and its
environment. These changes may have acquired significance in their own right,
and this significance shall be recognized and respected.

(e) Distinctive stylistic features or examples of skilled craftsmanship that
characterize a building, structure, object, or site shall be kept where possible.

(f) Deteriorated architectural features shall be repaired rather than replaced,
wherever possible. In the event replacement is necessary, the new material
should reflect the material being replaced in composition, design, texture, and
other visual qualities. Repair or replacement of missing architectural features
should be based on accurate duplications of features, substantiated by historical,
physical, or pictorial evidence rather than on conjectural designs or the
availability of different architectural elements from odier buildings or structures.

(g) The surface cleaning of structures shall be undertaken with the gentlest means
possible. Sandblasting and other cleaning methods that will damage the historic
building materials shall not be undertaken.

(h) Every reasonable effort shall be made to protect and preserve archaeological
resources affected by, or adjacent to, any project.

(i) Contemporary design for alterations and additions to existing properties shall
not be discouraged when such alterations and additions do not destroy significant
historical, architectural, or cultural material, and such design is compatible with
the size, scale, material, and character of the property, neighborhood, or
environment.

(j) Wherever possible, new additions or alterations to buildings, structures,
objects, or sites shall be done in such a manner that if such additions or

^^^ Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision D, p. 31, and THC, Section 8, p. 11.

87

alterations were to be removed in the fiiture, the essential form and integrity of
the building, structure, object, or site would be unimpaired.

Copies of the design guidelines adopted by the Board and The Secretary of the Interior's
Standards shall be kept at the office of the City Historic Preservation Officer and shall made
available to the property owners of historic landmarks or within historic districts. °

§ 12.209.2 Certificate of Appropriateness Application Procedure

(a) Prior to the commencement of any work requiring a certificate of appropriateness the owner
shall file a complete application for such a certificate with the City Historic Preservation Officer.
All applicants are strongly encouraged to first talk to the Officer about the work planned for any
designated resource, so that the Officer may advise the owner on which criteria the owner should
follow regarding the information to be included within the application. Applications for the
approval of all work not related to ordinary maintenance and repair shall contain the
following. '^

(1) The name, address, and telephone number of the owner(s) of the property for
which the application is being made;

(2) A detailed description of the proposed work;

(3) The intended starting date and completion date of the proposed work;^°"

(4) Historic photographs of the property to be affected, if available;

(5) Elevation drawings of the proposed changes, if available;

(6) Samples of the materials to be used;

(7) If the proposal includes signs or lettering, a scale drawing showing the type
of lettering to be used, all dimensions, a description of materials to be used, the
method of illumination (if any, and a plan showing the sign's location on the
property;

(8) Any other information which the City Historic Preservation Officer or the
Board may deem necessary in order to visualize the proposed work.

177
178
179

THC, Section 8, pp. 11-12.

Adaptation of 7HC, Section 8, p. 11, except where otherwise noted.

The following provisions are adaptations from THC, Section 9, p. 12, unless
otherwise noted.

^^0 Adaptation of F. Ord., Section 12.205, p. 12-8.

88

Applications for the approval of all work intended to carry out only ordinary maintenance, and
repair shall also include all of the previous information, with the exception of numbers (5) and
(7).

Applications shall not be accepted until the application is determined by the Officer to be
complete and correct. Nor shall applications which are not in compliance with the city building
code, restrictions, or other city ordinances be accepted. They shall instead be returned to the
applicant for compliance.'"'

(b) The City Historic Preservation Officer shall determine which applications for certificates of
appropriateness are in fact for work strictly involving ordinary maintenance and repair. Those
activities which constitute ordinary maintenance and repair include but are not restricted to:

(1) Maintenance in the form of surface cleaning using a nonabrasive cleaning
method which will in no way harm the material(s) being cleaned;

(2) Repainting;

(3) Repair using the same material and design as the original;

(4) Reroofing, using the same type of material;

(5) Repair of sidewalks and driveways using the same type of materials. '°^

If the City Historic Preservation Officer does determine that the application for the certificate of
appropriateness is in fact for work strictly involving ordinary maintenance and repair and that,
using the guidelines required in § 12.209.2, the maintenance and repair work proposed will not
harm or alter the exterior appearance or the historic, cultural, or architectural character of the
designated resource, then the Officer shall within seven (7) days of receiving the application
recommend the excuse of the applicant from any further obligation of receiving a certificate of
appropriateness from the Board and shall forward a copy of the application and his/her signed
permit for the work with a recommendation for excuse to the Chairman of the Board or the Vice-
Chairman of the Board if the Chairman is unavailable. The Chairman or Vice-chairman of the
Board shall within three (3) business days either approve the Officer's recommendation and sign
off on the permit to allow the ordinary maintenance and repair or schedule the decision to be
considered by the Board at its next regularly scheduled meeting. If the Chairman or Vice-
Chairman does not take any action within three (3) business days, it shall be deemed that such
person has approved the Officer's decision, and the Officer's signed permit allowing the

'^' Adaptation of F. Ord., Section 12.205, p. 12-8.

182 Numbers (2) - (5) are adaptations of S.A. Ord., Section 35-434.3, p. 31. Number
(1) is entirely of the author's own contrivance.

89

maintenance and repair work to be carried out shall suffice to excuse the applicant from receiving
a certificate of appropriateness for the work. °-^

No work involving ordinary maintenance and repair shall be carried out on any historic landmark
or on any property within an historic district without a permit specifically allowing such work
signed by the City Historic Preservation Officer as well as by the Chairman or Vice-Chairman
of the Board (if possible) in lieu of a certificate of appropriateness. No building permit shall be
issued for the proposed ordinary maintenance and repair (if required) unless the applicant first
receives a permit from the Officer authorizing the ordinary maintenance and repair work.
Furthermore, the permit required for ordinary maintenance and repair shall be in addition to and
not in lieu of any building permit that may be required by any other ordinance of the City Of
Fredericksburg. ^°^

(c) The City Historic Preservation Officer shall submit all completed applications for certificates
of appropriateness which he/she determines are not for the completion of ordinary maintenance
and repair to the Board for review. ^°^

(d) The Board shall review the application at a regularly scheduled meeting within sixty (60)
days from the date the completed application is received by the City Historic Preservation
Officer. An opportunity will be provided for the applicant to be heard during the review of the
application at the Board meeting. The Commission shall approve, deny, or approve with
modifications the application within forty-five (45) days after the review meeting.^"" In the
event the Board does not act within ninety (90) days of the receipt of the application by the City
Historic Preservation Officer or fails to approve, deny, or approve with modifications the
application within forty-five (45) days after the review meeting, the application shall be deemed
approved by the Board. ^° A certificate of appropriateness shall be issued by the City
Historic Preservation Officer, acting as the representative of the Board, showing the filing date
and the failure to take action on the application within ninety (90) or within forty-five (45) days
after the review meeting. ^°°

(e) The applicant may withdraw the application on or before the day of the Board's review of the
application and may resubmit it at a later time if additional time is required for the preparation
of information or for research requested by the Board. Such withdrawal by the applicant shall

^^3 Adaptation of S.A. Ord., Section 35^34.1, p. 31; F. Ord., Section 12.205, p. 12-8;
and Fort Worth, Texas, "City of Fort Worth Historic Preservation Ordinance," Subdivision
D, p. 26.

^^'^ Adaptation of THC, Section 9, p. 12.

^^^ Adaptation of S.A. Ord., Section 35^31, pp. 22-23.

^^ Adaptation of THC, Section 9, p. 12.

^^^ Ibid., and Adaptation of S.A. Ord., Section 35-431, p. 23.

^^^ Adaptation of S.A. Ord., Section 35^31, p. 23.

90

release the Board of its obligation to make a decision on the application. Upon resubmission of
the application, the Board shall again review the application at a regularly scheduled meeting
within sixty (60) days from the date of the refiling of such an application with the City Historic
Preservation Officer.

189

(f) The Board may delay the hearing on an application for thirty (30) days or until the next
scheduled meeting of the Board, whichever is shorter, if the Board feels additional information
is absolutely necessary and required in order to evaluate an application in a fair manner. Such
a delay of shall suspend the forty-five (45) day time period during which the Board must deny,
approve, or approve with conditions the application until a complete hearing is held on the
application at the next meeting at which it has been rescheduled for a hearing. *^^^

(g) All decisions of the Board shall be in writing. The Board's decision shall state its findings
pertaining to the approval, denial, or modification of the application. A denial may indicate what
changes in the proposed actions would meet the conditions for protecting the distinctive character
of the landmark or historic district. A copy shall be sent to the applicant by registered mail.
Additional copies shall be filed as part of the public record on that property and distributed to
the Office of the City Historic Preservation Officer and all appropriate city departments,
commissions, and agencies.^

(h) An applicant for a certificate of appropriateness dissatisfied with the action of the Board
relating to the issuance or denial of a certificate of appropriateness shall have the right to appeal
to the City Council within thirty (30) days after receipt of notification of such action. The City
Council shall give notice to the appellant, follow publication procedure, and hold a hearing in the
same manner as provided in the City of Fredericksburg Zoning Ordinance. The appellant shall
have the right to attend the hearing and the right to be heard as to his/her reasons for filing the
appeal. In making its decision, the City Council shall consider the same criteria for the approval
of a certificate of appropriateness as did the Board, established in § 12.209.2 of this ordinance;
the written report of the Board pertaining to the denial of the certificate to the applicant; and any
other matters presented at the hearing on the appeal. If the City Council approves the
application, it shall direct the Board to issue a certificate of appropriateness for the work
requested to the applicant. If the Board disapproves the application, it shall direct the Board not
to issue a certificate of application to the applicant.

(i) No building, demolition, or signage permit shall be issued for any of the work requiring a
certificate of appropriateness until a certificate of appropriateness has first been issued by the
Board. The certificate of appropriateness required by this ordinance shall be in addition to and

189

Ibid.

Adaptations of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision D, p. 30, and of a recommendation in 7HC, Section 9, p. 12.

^^^ Adaptation of THC. Section 9, p. 12, and S.A. Ord., Section 35-431, p. 24.

192

Ibid.

91

not in lieu of any type of building, demolition or signage permit that may be required by any
other ordinance of the City of Fredericksburg.^^-'

§ 12.209.3 Certificate of Appropriateness Requirements for Demolitions

A permit for the demolition of an historic landmark or property within an historic district,
including secondary buildings and landscape features, shall not be granted by the Building Official
or an other city official, without the issuance of a certificate of appropriateness by the Board as
provided for in § 12.209, Subsections 12.209.1 and 12.209.2, of this ordinance. ^^
Applications for certificates of appropriateness for demolitions of properties designated "non-
contributing" within an historic district shall be subject to the criteria for approval and application
procedures as ouUined in § 12.209, Subsections 12.209.1 and 12.209.2. However, since the
demolition of a historic landmark or a property designated as "contributing" within an historic
district constitutes an irreplaceable loss to the quality and character of the City of Fredericksburg,
requirements in addition to those listed in § 12.209, Subsections 12.209.1 and 12.209.2, are to
be met in cases of applications for certificates of appropriateness for demoliti^o^ for historic
landmarks and properties designated as "contributing" within historic districts.

Whenever an application for a certificate of appropriateness for the demolition of an historic
landmark or a property designated "contributing" within an historic district, which is complete
according to the requirements in Subsection 12.209.2(a), is submitted to the City Historic
Preservation Officer, the Officer shall submit the application to the Board for review. However,
the Board shall not hold a public hearing to review the application for sixty (60) days from the
date the application is received by the City Historic Preservation Officer. This time period is
intended to permit the City Historic Preservation Officer to discuss the proposed demolition
informally with the property owner, other city officials, and local preservation organizations, to
see if an alternative to demolition can be found before a formal consideration of the application
by the Board. The City Historic Preservation Officer shall prepare a report to the Board
analyzing alternatives to demolition, and request from other city departments, commissions, or
agencies information necessary for the preparation of this report.

If within this sixty (60) day period any one of the following four events shall occur, the Board
may defer hearing the application for six months, and it shall be considered to have been
withdrawn by the applicant during such six-month period: (1) the owner shall enter into a
binding contract for the sale of the property; (2) approved arrangements shall be made for the
structure to be moved to an approved new location; (3) loans or grants from public or private
resources have been secured which eliminate the need for demolition; or (4) building code
modifications or changes in applicable zoning ordinance provision, including variances, have been

12.
12-13.

^93 Adaptation of TTiC, Section 9, p. 12

^^'* Adaptation of THC, Section 10, pp.

195 Adaptation of S.A. Ord., Section 35-436, p. 36.

196 Adaptation of S.A. Ord., Section 35-436.7, pp. 42-43.

secured which eliminate the need for demolition. '^"^ But if within the sixty (60) day period
none of the four events summarized above shall have occurred, the Board shall schedule a hearing
of the application following the expiration of the sixty (60) day period to be held within sixty
days of the expiration date of the first sixty (60) day period required for negotiations with the
City Historic Preservation Officer. The application will then be subject to the application
procedures required in Subsections 12.209.2(d)-(i), with the date of the expiration of the sixty
(60) day period required for negotiations with the City Historic Preservation Officer replacing
the initial date the City Historic Preservation Officer received the application and with
modifications to Subsections (f), and to the Criteria for Approval required in Subsection
12.209.1. After the expiration of the initial sixty (60) day negotiation period without the
occurrence of any one of the four events summarized above, the City Historic Preservation
Officer shall also request the Building Official to prepare a report on the state of repair and
structural stability of the building or structure for which an application to demolish has been
filed. This report shall be presented to the City Historic Preservation Officer prior to the date
of the Board's hearing on the demolition permit application, and it shall become part of the
administrative record on the application. ^^°

In Subsection 12.209(f), the Board may delay die hearing on an application for the demolition
of an historic landmark or a property designated as "contributing" within an historic district for
thirty (30) days in order to assure itself that one of the four possibilities summarized above which
the City Historic Preservation Officer endeavored to make occur has not in fact become a
possibility in regards to eliminating the need for the demolition of the property in question given
the additional time since the conclusion of initial negotiations. ^^^ The presence of such a
possibility is information which is absolutely necessary and required in order to evaluate an
application in a fair manner. Such a delay of shall suspend die forty-five (45) day time period
during which the Board must deny, approve, or approve with conditions the application until a
complete hearing is held on the application at the next meeting at which it has been rescheduled
for a hearing. 2^

§ 12.209.4 Refiling of Applications for Certificates of Appropriateness

When an application for a certificate of appropriateness is denied by die Historic Review Board,
or the City Council on appeal, no new application of like nature shall be accepted by the City
Historic Preservation Officer or scheduled for a hearing by the Board for a period of twelve (12)
months following the date of denial. However, upon receipt of a written request by the original

^9"^ Adaptations of S.A. Ord., Section 35-436.7, p. 43, and of Fort Worth, Texas, "City
of Fort Worth Historic Preservation Ordinance," Subdivision D, p. 29.

198 Adaptation of S.A. Ord., Section 35-436.7, p. 43.

199 Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision D, p. 29.

2^ Adaptations of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision D, p. 30, and of a recommendation in THC, Section 9, p. 12.

93

applicant describing substantially changed conditions since the prior consideration of the
application to justify an earlier consideration of the application, the Board may waive the
mandatory delay period and authorize the acceptance of a new application. "*

§ 12.209.5 Enforcement of Work Performed F*ursuant to a Certificate of Appropriateness

All work performed pursuant to a Certificate of Appropriateness shall conform to the work
approved of or approved of with modifications by the Board in granting the certificate of
appropriateness and to all other requirements included herein. It shall be the duty of the City
Historic Preservation Officer to periodically inspect any such work to assure compliance. If work
is found that is not performed in accordance with the certificate of appropriateness issued, or
upon notification of such fact by the Board and verification by the Building Official, the Building
Official shall issue a stop-work order, and all work shall immediately cease. No further work
shall be undertaken on a project while a stop-work order is in effect, and the person(s) found to
be responsible for the violation of the work approved or approved with modifications in the
certificated of appropriateness granted shall be subject to the penalties and remedies available
under § 12.217 of this ordinance.^^^

§ 12.210 Economic Hardship Application Procedure "-^

(a) After receiving written notification from the Board of the denial of certificate of
appropriateness, an applicant may commence the hardship process. No building, demolition, or
signage permit shall be issued unless the Board makes a finding that a hardship exists for the
applicant.

(b) When a claim of economic hardship is made based on the effect of this ordinance, the owner
must prove by clear and convincing evidence that:

(1) The property is incapable of earning a reasonable return, regardless of
whether that return represents the most profitable return possible;

(2) The property cannot be adapted for any other use, whether by the current
owner or by a purchaser, which would result in a reasonable return; and

(3) Efforts to find a purchaser interested in acquiring the property and preserving
it have failed;

201

Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation

Ordinance," Subdivision D, p. 35.

202

Ibid.

^"■^ Adaptation of THC, Section 1 1, p. 13, unless otherwise noted.

94

The applicant shall submit all materials deemed sufficient by the applicant to satisfy the previous
three requirements, along with the applicant's name, address, and telephone number, to the City
Historic Preservation Officer, who shall in turn submit the application to the Board for review;

(c) The applicant shall consult in good faith with the Board, local preservation groups, and
interested parties in a diligent effort to seek an alternative that will result in preservation of the
property. Such efforts must be shown to the Board.

(d) The Board shall hold a public hearing on the application within sixty (60) days from the date
the application for an economic hardship waiver is received by the City Historic Preservation
Officer. An opportunity will be provided for the applicant to be heard during the review of the
application at the Board meeting. Following the hearing, the Board has thirty (30) days in which
to acknowledge the existence of an economic hardship and grant a certificate of appropriateness
for the work originally requested or to deny the existence of an economic hardship and reaffirm
its decision to deny the original application for a certificate of appropriateness. In the event that
the Board does not act within ninety (90) days of the receipt of the application, a certificate of
appropriateness shall be issued by the City Historic Preservation Officer, acting as the
representative of the Board, acknowledging the existence of an economic hardship, showing the
filing date, and showing the failure to take action on the application within ninety (90) days after
the review meeting;

(e) All decisions of the Board shall be in writing. A copy shall be sent to the applicant by
registered mail and a copy filed with the City Historic Preservation Officer and the City Secretary
for public inspection. The Board's decision shall state the reasons for granting or denying the
economic hardship application for a certificate of appropriateness;

(f) An applicant for a certificate of appropriateness dissatisfied with the action of the Board
relating to the issuance or denial of a certificate of appropriateness after a hearing on the
applicant's economic hardship application shall have the right to appeal to the City Council within
thirty (30) days after the receipt of notification of such action. The City Council shall give notice
to the appellant, follow publication procedure, and hold a hearing in the same manner as provided
in the City of Fredericksburg Zoning Ordinance. The appellant shall have the right to attend the
hearing and to be heard as to his/her reasons for filing the appeal. In making its decision, the
City Council shall consider the written report of the Board pertaining to the issuance or denial
of the hardship application for the certificate to the applicant. If the City Council approves the
application, it shall direct the Board to issue a certificate of appropriateness for the work
requested to the applicant. The Board shall then comply with the ruling of the City Council and
issue the certificate of appropriateness to the applicant.^"^

204 Adaptation of S.A. Ord., Section 35-431, p. 24., and of mC, Section 11, p. 13.

95

§ 12.211 Unusual and Compelling Circumstances Application Procedures for the

Approval of a Certificate of Appropriateness for the Demolition or Removal
of an Historic Landmark or a Property Designated "Contributing" Within an
Historic District

(a) When an applicant for a certificate of appropriateness for the demolition or removal of an
historic landmark or a property designated as "contributing" within an historic district fails to
prove an unreasonable economic hardship under the application procedure allowed in § 12.210,
the applicant may provide the City Historic Preservation Officer additional information which
may show unusual and compelling circumstances in order to receive a certificate of
appropriateness for the proposed demolition or removal. The City Historic Preservation Officer
shall submit the information (the application) to the Board for review;

(b) The Board shall hold a public hearing on the application within sixty (60) days from the date
the application is received by the City Historic Preservation Officer. An opportunity will be
provided for the applicant to be heard during the review of the application at the Board meeting.
Following the hearing, the Board has thirty (30) days in which to acknowledge the existence of
unusual and compelling circumstances and grant a certificate of appropriateness for the work
originally requested or to deny the existence of unusual and compelling circumstances and
reaffirm its decision to deny the original application for a certificate of appropriateness. In the
event that the Board does not act within ninety (90) days of the receipt of the application, a
certificate of appropriateness shall be issued by the City Historic Preservation Officer, acting as
the representative of the Board, acknowledging the existence of unusual and compelling
circumstances, showing the filing date, and showing the failure to take action on the application
within ninety (90) days after the review meeting;

(c) The Board, using its best judgement, shall determine whether unusual and compelling
circumstances exist and whether or not existing circumstances should override the need to protect
the historic, cultural, or architectural significance from demolition by means of a denial of a
certificate of appropriateness. In making its judgement, the Board shall be guided by the criteria
set forth in § 12.209, Subsection 12.209.1, and by the following additional considerations: "^

(1) The historic or architectural significance of the building, object, site, or
structure;

(2) The importance of the building, object, site, or structure to the integrity of
an historic district (if applicable) or area;

(3) The difficulty or the impossibility of reproducing such a building, object, site,
or structure because of its design, texture, material, detail, or unique location;

(4) Whether the building, object, site, or structure is one of the last remaining
examples of its kind in the neighborhood, the county, or the region;

205 (c) is an adaptation of S.A. Ord., Section 35-436.2, pp. 38-39, unless otherwise
noted.

96

(5) Whether there are definite plans for the reuse of the property if the proposed
demolition is carried out, and what effect such plans will have on the
architectural, cultural, historical, social, or environmental character of the
surrounding area as well as the economic impact of the new development;

(6) Whether reasonable measures can be taken to save the building, object, site,
or structure from further deterioration, collapse, arson, vandalism, or neglect
(here the Board may refer to the report completed by the Building Official on the
state of repair and structural stability of the building or structure for which the
application to demolish was initially filed, which is part of the administrative
record on the original application for the certificate of appropriateness to
demolish).206

(d) All decisions of the Board shall be in writing. A copy shall be sent to the applicant by
registered mail and a copy filed with the City Historic Preservation Officer and the City Secretary
for public inspection. The Board's decision shall state the reasons for granting or denying the
unusual and compelling circumstances application for a certificate of appropriateness;

(e) An applicant for a certificate of appropriateness dissatisfied with the action of the Board
relating to the issuance or denial of a certificate of appropriateness after a hearing on the
applicant's unusual and compelling circumstances application shall have the right to appeal to the
City Council within thirty (30) days after the receipt of notification of such action. The City
Council shall give notice to the appellant, follow publication procedure, and hold a hearing in the
same manner as provided in the City of Fredericksburg Zoning Ordinance. The appellant shall
have the right to attend the hearing and the right to be heard as to his/her reasons for filing the
appeal. In making its decision, the City Council shall consider the written report of the Board
pertaining to the issuance or denial of the unusual and compelling circumstances application for
the certificate to the applicant. If the City Council approves the application, it shall direct the
Board to issue a certificate of appropriateness for the work requested to the applicant. If the
Board disapproves the application, it shall direct the Board not to issue a certificate of application
to the applicant.^^^

§ 12.212 Requirements Following the Issuance of a Certificate of

Appropriateness for the Demolition or Removal of an Historic Landmark or
a Property Designated as "Contributing" within an Historic District^

(a) The owner(s) of a property who have been granted a certificate of appropriateness for the
demolition or relocation of an historic landmark or a property designated as "contributing" within
an historic district shall assist in and cooperate fully with the efforts of the City Historic

206 Adaptations of S.A. Ord., Section 35-436.2, p. 39, and Section 35-436.7, p. 43.
20'7 Adaptation of S.A. Ord., Section 35-431, p. 24. and THC, Section 11, p. 13.
208 Adaptation of S.A. Ord., Section 35^36.9, pp. 44-45.

97

Preservation Officer to gain as much knowledge as needed or possible about the particular
building, object or structure and to fully document the property before the building, structure,
or object is relocated or demolished.

(b) Following the demolition or removal of an historic landmark or of a property designated
"contributing" within an historic district, the owner or other person having legal custody and
control thereof shall:

(1) remove all traces of previous construction, including the foundation;

(2) grade, level, sod, and seed the lot to prevent erosion and improve drainage;
and

(3) repair at his/her own expense any damage to public rights-of-way, including
sidewalks, curbs, and streets that may have occurred in the course of removing
the building, object, or structure and its appurtenances.

Analysis and Commentary on § 12.209, 12.210, 12.211, and 12.212

Sections 12.209 - 12.211 are truly the heart of the historic preservation regulation
proposed for Fredericksburg in the amended ordinance. In fact, the regulations in these sections
are designed to give the Historic Review Board the power and authority it needs to arrest and
reverse the many instances of the loss of the character of designated properties within the city's
only historic district that have occurred because of the Board's purely advisory nature under the
current ordinance and its lack of authority to enforce any of its "recommendations" on the owners
of designated properties once they or their representatives have attended a mandatory hearing
reviewing their intended actions. ^^ Furthermore, the new powers of regulation given the
Board through the certificate of appropriateness requirements of the amended ordinance, along
with the expanded and more heavily emphasized mandate in the amended ordinance that the Board

•'"^ See Chapter One for a full discussion on the detrimental effects to the significant
historic, cultural, and architectural resources the Board's lack of power has caused and will
continue to cause as the city continues to grow. See Appendix A, Sections 12.205 and
12.206, for the "Certificate of Review" process required under the current Fredericksburg
historic preservation ordinance.

98

and the City Historic Preservation Officer seek to designate more landmarks and historic districts,
allow the city to extend a high level of protection to the many unprotected but eligible historic
resources located outside of the present historic district.

There are three key regulations written into the amended ordinance that give the Historic
Review Board the authority it needs to truly protect the significant historic, cultural, and
architectural resources of Fredericksburg. The first is that none of the work listed which requires
an application for a certificate of appropriateness can legally be carried out without first securing
a certificate of appropriateness for the work from the Board or securing a permit for ordinary
maintenance and repair from the City Historic Preservation Officer which excuses the applicant
from obtaining a certificate of appropriateness.^'^ The second is that no building,
demolition, or signage permit may be issued for any of the work requiring a certificate of
appropriateness until a certificate of appropriateness has first been issued by the Board.
The third key regulation is that the City Historic Preservation Officer is given the authority to
periodically inspect the work authorized with certificates of appropriateness. If he/she finds work
being conducted in violation of the terms of a certificate of appropriateness or without the
necessary authorization given by a certificate of appropriateness, he/she may stop the work in
question and pursue the imposition of the civil and criminal penalties and remedies allowed by
Section 12.217 of the ordinance.^ '^ With the inclusion of these provisions in the amended
ordinance, the Historic Review Board will no longer be forced to try and persuade, cajole, apply
peer pressure, or negotiate with people to get them to abandon a project that will be destructive
or detrimental to the character of a designated resource as the only recourse available to it if its

210

Section 12.209.

2^1 Subsection 12.209.2(i).
212 Subsection 12.209.5.

99

members are to at least attempt to carry out their mission of protecting the heritage resources of
Fredericksburg. Instead, the Board is able to strictly prohibit any and all actions that would
destroy or forever alter die significant historic, cultural, and architectural resources of the
city,^^-^ which in fact must be protected to advance the social welfare of the community and
help further stimulate the continued economic and population growth so reliant on the attraction
of the city's unique historic, cultural, and architectural heritage. Such powers of prohibition and
enforcement must be granted in this or any other proposed amended ordinance for the City of
Fredericksburg if historic preservation regulation is to be at all effective in protecting and
promoting the historic, cultural, and architectural resources that are so critical to the city's
prosperity in the present and in the future.

Of course, the sections of the amended ordinance included in this part of the chapter are
like all the other sections of the ordinance in that they were written both to meet the historic
preservation ordinance requirements established by the THC for local governments desiring to
become designated certified local governments, and to cater the particular physical, social,
economic, and political realities of the City of Fredericksburg and its citizens. One of the most
significant amendments to the original ordinance are the provisions authorizing the City Historic
Preservation Officer to receive all applications for certificates of appropriateness, but only
authorizing the Officer to determine and make judgements on applications concerning work
involving ordinary maintenance and repair, which must then be approved by the Chairman or
Vice-chairman of the Board before a permit for the work may be issued.^ All other
applications must be submitted to the Board by the CHPO for formal reviews by the Board at

2^-^ Except in cases where the presence of economic hardship or unusual and compelling
circumstances require that the Board permit detrimental or destructive actions under the
requirements of Sections 12.210 and 12.211, respectively.

214 See subsection 12.209.2(a), (b), and (c) in Appendix B.

100

public hearings, although the CHPO is authorized to determine the completeness of all
applications and require that additional information be submitted with the applications if

215
necessary. '-^

These amended procedures of application concerning the duties of the CHPO are

significant for two very important reasons. The first is that allowing the CHPO to determine the

state of completion of all applications will help the application process run more smoothly and

efficiently, thereby making the process more acceptable for the citizens being regulated by the

ordinance. The THC model ordinance for CLG status does not specifically require or prohibit

the city historic preservation officer from first receiving the applications for certificates of

appropriateness.^ ^^ However, both the San Antonio and Fort Worth ordinances require that

all applications be given to the cities' historic preservation officers, in part to allow someone with

expertise to determine whether or not the applications are complete and what other information

might be necessary in order for the cities' historic review commissions to make an informed

decision on the applications.^^^ It is feh that having the City Historic Preservation Officer

of Fredericksburg carry out this same function is the best method of handling the submission of

applications to the Board, since the CHPO may expedite the process by returning all incomplete

applications and using his/her expertise to determine what further information might be needed

by the Board to make its determinations on the applications. By doing so, the CHPO will enable

less of the valuable time of the volunteer members of the Board to be wasted on returning

incomplete applications or suspending the hearings on applications until more needed information

2^5 See subsection 12.209.2(c) in Appendix B.

216 THC, Section 9, p. 12.

21"^ S.A. Ord., Section 35-431, pp. 22-23, and Fort Worth, Texas, "City of Fort Worth
Historic Preservation Ordinance," Subdivision D, pp. 26-27, respectively.

101

is gathered for the application. The carrying out of this responsibility will also help applicants
to be more satisfied with the progress of their applications through the required process than they
might be without the services of the CHPO.

Although the Building Official is currently charged with this duty under the present
ordinance, the tremendous amount of work expected of this official in performing his primary
duties as the City Inspector and his lack of expertise in the area of historic preservation or
architectural history means that he is less likely to be able to anticipate what additional
informational the Board might or would need in reviewing particular applications. Thus, it is
imperative for the sake of keeping the application process as quick, easy, and satisfying as
possible that the expertise of the City Historic Preservation Officer be put to use to provide the
most efficient and expedient means of conducting the certificate of appropriateness application
process. This is, of course, yet another argument to be added to those justifying the
establishment of the office of City Historic Preservation Officer in the analysis and commentary
on Section 12.204 presented in this chapter.

The second and most important significance of the amended certificate of appropriateness
application procedures being written as they are is that this amended section helps bring the
certificate of application procedures into compliance with THC ordinance requirements for CLG
status. The authorization given the Building Official to approve applications (with the agreement
of the Chairman or Vice-chairman of the Board) which, in his/her opinion, involve "alteration,
change, restoration or removal of any exterior architectural feature of a building or structure
which does not involve significant changes in the architectural or historic value, style, general
design or appearance..." under Section 12.205 of the current ordinance is not authorized by the
THC's the model ordinance. Nor is any similar authorization given to the historic preservation

102

officers or any other city officials of San Antonio or Fort Worth under either one of these

218
certified local government's ordinances. '°

In fact, such authorization is not allowed with good reason. Requiring the Board to
review and decide upon all applications not concerning ordinary maintenance and repair allows
for more public accountability in the decision-making process, since public hearings are required
before any decisions can be made by the Board. This public process assures property owners that
they may argue their case in front of the members of the Board and others in attendance at the
public hearing in order to possibly increase their chances of approval. Citizens will feel that they
are empowered to help make decisions that affect them and their prosperity, rather than having
them feel powerless and alienated from the regulation enforcement system that is designed to
serve them and protect their property values. Such public due process simply makes good legal
sense. It also offers the opportunity to foster among citizens a better understanding of the open,
public decision-making process required by law in die amended historic preservation ordinance
and of the protections offered the significant historic, cultural, and architectural resource under
the historic preservation ordinance.

The requirement that the Board review and decide upon all applications not concerning
ordinary maintenance and repair also reduces the possibility of allowing work that would be
detrimental to or destructive of the historically, culturally, or architecturally significant character
of designated resources to be approved. Enough has been said in the analysis and commentary
on Section 12.204 in this chapter about the possibility for error that exists under the current
ordinance's certificate of review procedures, since these procedures allow the Building Official,
a person who lacks experience in the realm of historic preservation and/or knowledge of
architectural history, and the Chairman or Vice-chairman of die Board (who might also lack a

^^° See Appendix A.

103

necessary level of experience or knowledge) to decide which actions will not be detrimental to
or destructive of designated properties. The new requirement that certificate of appropriateness
applications other than those involving ordinary maintenance and repair be reviewed by the Board
also serves notice to the friends and foes of historic preservation in Fredericksburg alike that the
old potentials for corruption have been all but banished. No longer will it be potentially possible
to have someone who is unfamiliar with the reasons behind the methods involved in historic
preservation regulation or who is apathetic or even unsympathetic toward the cause of
preservation (i.e. the City Building Official) to approve an application for work that is detrimental
to the character of a designated property out of friendship and/or sympathy for the applicant. The
amended qualifications of Board members and the amended requirements for the makeup of the
Board found in Section 12.203(b), combined with the fact that the Board as a whole must review
and decide on every nonmaintenance and repair related application, also greatly reduce the
possibility of error described above. The chance of error is further reduced by the fact that the
CHPO is required to use his/her expertise in historic preservation and/or architectural history to
advise the Board in its decisions.^ ^^ Therefore, this provision of the amended ordinance is
absolutely essential if Fredericksburg is to truly be able to protect and preserve its historic,
cultural, and architectural resources for decades to come.

This requirement of Board review does potentially increase the work load for the
volunteer members of the Board, but such a work increase is more than made up for by the
additional protections offered the city's designated resources by the requirement. Thus, the
requirement that all applications for certificates of appropriateness other than those for work
involving ordinary repairs and maintenance be reviewed by the Board is one of the most
important amendments to the ordinance, since it lessens the possibility of error, makes the

2^^ See Section 12.204 in Appendix B.

104

certificate of appropriateness process more publicly accountable, and brings the ordinance into
compliance with THC ordinance requirements for CLG status. Along with fulfilling the

ordinance requirements for CLG status, Section 12.209 also is written to cater to the particular
physical, social, and economic needs and the political realities of the City of Fredericksburg and
its citizens. One of the provisions that goes beyond the minimum THC requirements for
ordinances, but that is placed within the amended ordinance to satisfy the need and realities of
the situation in Fredericksburg, is the wording of the first paragraph of subsection 12.209. 1's
"Criteria for Approval of a Certificate of Appropriateness." This paragraph is meant to help
reassure the citizens of Fredericksburg who might worry that the amended ordinance will allow
the CHPO and the Board to deny owners the ability to make any changes on their designated
property or require extremely costly methods to be used if any such change is to be allowed. The
wording pledges that the Board and the CHPO will always hold the necessity of meeting the
needs of regulated property owners as one of its most important missions. It also pledges that
they will strive to make sure that the work required by a certificate of appropriateness approved
or approved with modifications by the Board is not economically prohibitive to the finances of
the applicant, but is adequate enough to protect the physical character of the designated property.
It is hoped that this initial paragraph will help diffuse charges that the amended ordinance will
allow excessive and costly regulation of private property and, thereby, help win over the
confidence and support of older and/or poorer owners of property that is or might be eligible for
designated.

Another provision included in the ordinance is the right granted to dissatisfied property
owners (applicants) in Subsection 12.209.2(h) to appeal the issuance or denial of a certificate of
appropriateness to the City Council. This provision should help combat the notion that the
amended ordinance's regulations will deny owners the ability to make any changes to their

105

designated property or require extremely costly methods to be used if any such change is to be
allowed. The inclusion of this right of appeal is mandatory under THC ordinance requirements,
and it is designed to protect owners from excessive and unjust certificate of application
requirements or denials with the overriding authority of a more politically responsive and
objective government body in the form of the City Council.^^^ Thus, the ability to challenge
the power and authority of the Historic Review Board through appeal at a public City Council
hearing should help assure citizens of Fredericksburg wary of excessive government regulation
under the ordinance that it is highly possible to reverse any excessive use or abuse of power
which the Board initiates through the certificate of appropriateness procedures.

Two important sections are included in the ordinance to also help win additional support
from skeptical citizens, who fear that the amended ordinance will allow excessive and costly
regulation of private property: Section 12.210 and Section 12.211. The economic hardship
application procedure outlined in Section 12.210 is a procedure required in all ordinances that
are designed to meet THC guidelines for CLG status. Of course, this provision is also politically
beneficial to the effort to have the public accept adoption of the ordinance on both a four year
trial basis and later on a permanent basis. This is because Section 12.210 assures citizens that
even if the action of the Board on a certificate of appropriateness is economically detrimental to
a property owner, that owner can and will be able to reverse the Board's action if he/she can
prove that the Board's action results in an actual economic hardship.

In fact, the economic hardship application provided in Section 12.210 is designed to help
insure that the protective measures given the Board through the certificate of application
requirements cannot be used to the extent that they prevent the realization of a reasonable
economic return on any designated property. It is hoped that this provision will help the amended

220 THC, Section 9, p. 12.

106

ordinance gain at least some support from citizens afraid that enhanced historic preservation
regulations will cause excessive regulation of private property and the legally questionable loss
of some property rights. It is also hoped that this provision will both prevent disgruntled citizens
who are not granted a certificate of appropriateness initially or on appeal and who do receive a
favorable ruling in their application for economic hardship from filing a regulatory takings case
against the city. This section should also help ensure that the city will have a good chance at
winning regulatory takings suits filed by a disgruntled applicants.

The other important section, Section 12.21 1, is another provision in the ordinance that
goes above and beyond the ordinance requirements in order to insure that an owner is able to
exercise the right to the viable use of his/her property. It grants the ability to apply for a
certificate of appropriateness for a demolition or removal based on the existence of unusual and
compelling circumstances as a means to make sure that every possible basis for the need for the
demolition or removal of a designated structure, object, or building may be examined and ruled
upon by the Board after the denial of a certificate of appropriateness and a lack of finding of
economic hardship as justification for such action.'^''*

The need for this section has been shown in the recent case of Flores v. City of
Boeme?'^^ St. Peter the Apostle Catholic Church brought the lawsuit against the City of
Boeme, Texas, after it was denied permission by the cityS Historic Landmarks Commission to
demolish its existing sanctuary and build a new church building to accommodate its growing
congregation. The criteria used by the Commission to make decisions on certificates of
appropriateness would not permit the Commission to sanction the loss of the church§ prominent

221 See the definition of "UNUSUAL AND COMPELLING CIRCUMSTANCES" found
in Section 12.202 of the temporary, amended ordinance in Appendix B.

222 1195 U.S. Dist. LEXIS 3675.

107

and familiar facade (the only part of the building actually located within BoemeS historic
district). Nor could St. Peter the Apostle have proven economic hardship, even if such a
provision were to exist in BoerneS historic preservation ordinance (which does not meet THC
requirements for CLG designation). It was only after Archbishop Patrick Flores filed the lawsuit
against the City of Boerne on behalf of St. Peter the Apostle that both sides began to examine a
compromise construction plan that would have kept the primary facade but allowed the demolition
of the rest of the church and enabled a large sanctuary to be attached to the facade (a plan which
the Historic Landmarks Conmiission eventually rejected in favor of requiring the church to keep
the entire historic structure).

Section 12.21 1 is designed to specifically avoid the need for lawsuits, particularly takings
suits, to be filled by owners who have legitimate needs for the demolitions or removals of
designated resources, but whose needs may not be recognized under the application of the
amended ordinance^ normal certificate of appropriateness criteria or the procedure for proving
economic hardship. It is hoped that this section will provide an additional vehicle for
compromise between the Board and disgruntled property owners, so that both the recognized
needs of owners of designated properties and the need to protect the Fredericksburg^ significant
resources can be met through the granting of removal or only partial demolition of designated
resources. It is hoped as well that this provision will act as a political asset toward gaining the
support of citizens for the adoption of the amended ordinances, since it may give owners of
designated property and the citizens of Fredericksburg alike the correct feeling that the amended
historic preservation ordinance is truly meant to provide for and be subservient to the needs of
the people of the city, even if such legitimate needs contradict with the need for historic
preservation. Furthermore, the inclusion of this section in the ordinance should assure the people

108

wn

of the community that certain regulations and rulings of the Board which are in fact detrimental
to the needs and liberties of owners of designated properties can and will be overturned.

Thus, both Sections 12.210 and 12.211 provide politically favorable checks against the
power of the Historic Review Board to impose excessive or draconian requirements on property
owners irrespective of their economic or other vital needs. These sections also provide necessary
legal protection for the City of Fredericksburg against takings and other lawsuits in its exercise
and enforcement of the amended preservation ordinance - legal protections that are absolutely
necessary in this litigious age and particularly necessary in this community where feelings against
government regulation run high. Yet, most importantly, these two sections help meet the
particular needs of the people the ordinance is supposed to serve and protect them from
unnecessary and unlawful economic hardships or unusual and compelling detrimental
circumstances caused by the implementation of the amended ordinance^ protective regulations.

The procedure for applying for certificates of appropriateness for demolitions provided
by subsection 12.209.3 is also intended to help owners of designated landmarks and properties
designated "contributing" within historic districts avoid unnecessary expenses in terms of time
and money if they desire to demolish their designated properties. This procedure is also meant
to help discourage all but the absolutely essential demolitions of Fredericksburg^ historical,
cultural, and architectural resources. The provision for informal negotiations between demolition
applicants and the City Historic Preservation Officer and the provision allowing the Board to
delay the hearings on such applications are designed to make it clear to applicants that only
owners who have an absolute need for the demolition of their landmark or "contributing"
property will have a chance at obtaining a certificate of appropriateness for demolition. Such
demolition approvals will only be granted after the legitimate dismissal of the options of having
the building, object, or structure be bought by others, relocated, receive financing that would

109

eliminate the need for demolition, or receive zoning or building code changes which would
eliminate the need for demolition. All other applicants need not waste their energy and their
money on filing such applications, since they will have little chance of receiving approval from
the Board based on the criteria used for the review of such applications given in subsection
12.209.1. Although these provisions are not specifically required or mentioned within the
section on certificates of appropriateness for demolitions found in THC§ model ordinance,^^^
similar provisions found in Section 35-436.7 of the City of San AntonioS historic preservation
ordinance^^* establish the fact that these requirements are in fact legal and acceptable by the
THC for CLG designation.

Fredericksburg does not have much need for such stringent anti-demolition provisions at
the moment. The cityS designated resources could be adequately protected currently by the
simple adoption of the certificate of appropriateness for demolition procedures found in the Texas
Historical Commissions model ordinance, which simply state that no demolition permit for the
demolition of a designated landmark or of property within an historic district will be granted
without having the owner(s) of said property complete the regular certificate of appropriateness
application procedures and receive approval for the demolition from the historic review board or
commission. ^^^ The fact that much of the city§ tourists are attracted to Fredericksburg and
to its many tourist-oriented business by the renown of its unique architectural and cultural
resources means that businesses people are more likely to try and acquire historic and/or
Germanic-looking buildings and structures rather than tear them down. The true danger currently
lies in having owners of designated historic buildings and structures which do not contain

223 THC, Section 10, pp. 12-13.

224 pp. 42-43.

225 THC, Section 10, pp. 12-13.

110

elements of German-Texas architecture add false elements to their buildings to create such
missing elements. Business owners may even be tempted to demolish their buildings or structures
in order to create new ones which attempt to copy existing buildings from the 1840s through
1880s or evoke a similar Germanic feel as a way to attract more tourist business.

While Section 12.209.3 is meant to prevent the more likely demolitions of significant
buildings, objects, an structures from the early to mid-twentieth century, this section is, more
importantly, also designed to provide protection to all of Fredericksburg^ designated resources
against future economic downswings or changes in the nature of Fredericksburg^ appeal to the
tourist market. A weakening of the state or national economy could significantly reduce the
income Fredericksburg receives from tourist visits, thereby putting economic pressure on the
owners of designated resources to demolish these resources and find more lucrative ways of using
their property. The creation of other, more lucrative tourist attractions might also greatly
diminish the profitable use of designated buildings and structures as businesses, while increasing
the value of the sites occupied by these buildings as parking lots or fast-food restaurants. The
neighboring Adelsverein community of New Braunfels, Texas, lost a large portion of the area
of the city§ original settlement and a significant amount of its nineteenth and early twentieth
century buildings as a result of the development of huge water parks and outlet malls in the city.
The many additional requirements written into the amended ordinance for the approval of a
certificate of appropriateness for the demolition of landmarks or "contributing" properties within
historic districts are placed in the amended ordinance now, so that any future changes that have
the potential to generate significant losses to the overall number of Fredericksburg^ designated
landmarks and "contributing" properties under the simple demolition application procedures
required by the THC can be thwarted from the outset. This will allow the city to avoid the risk
of losing many important resources while precious time is both used to draft an amendment

111

offering more stringent requirements for the issuance of certificates of appropriateness for
demolitions and then further taken up during the process of gaining approval for the requisite
amendment to the ordinance.

One of the most critical aspects involved in protecting Fredericksburg^ significant
heritage resources is the enforcement of compliance with the Board! approval, denial, or
approval with modifications of applications for certificates of appropriateness, particularly
compliance with the exact methods and materials approved for use by the Board in granting
approval or approval with modifications for specific work. The inability of Fredericksburg!
Historic Review Board to in any way enforce its recommendations upon review of work intended
to be carried out on buildings, objects, sites, or structures within the cityS one historic district
under the present ordinance, and the resulting detrimental changes to the character of
Fredericksburg! historic district, are the main reasons why the City Council has authorized the
ordinance to be amended and the main reasons why these amendments to the ordinance have been
written. The ordinance as amended provides two different methods to insure that protections
offered designated resources through the certificate of appropriateness requirements can and
hopefully will be enforced. The first is the inclusion of highly significant statements found in
Subsections 12.209.2(b) and (i) that prohibit the issuance of any building, demolition, or signage
permits for any work requiring a certificate of appropriateness or a permit for ordinary
maintenance and repair unless an applicant for any of these three types of permits has first
received a certificate of appropriateness from the Board or a permit from the CHPO. " It
is hoped that the inclusion of these legal requirements in the ordinance, combined with the
markings of designated properties on the Official Public Records of Real Property of Gillespie
County, the tax records of the city and the Gillespie Appraisal District, and the zoning maps of

22^ See Section 12.209 in Appendix B.

112

the City of Fredericksburg required in subsections 12.206. 1(d) and 12.206.2(d), will prevent the
illegal granting of building, demolition, and signage permits to the owners of designated
properties. ^^^ Of course, these legal requirements also allow for the prosecution of all cases
of violations and the imposition of the penalties and remedies allowed by the ordinance in Section
12.217 upon conviction.

The second method of enforcement of the certificate of appropriateness requirements is
granted in the subsection 12.209.5. This subsection authorizes the City Historic Preservation
Officer to periodically inspect the work granted approval by the issuance of a certificate of
appropriateness for exact compliance with the work specifically approved under the certificate.
It is hoped that the threat of inspection shall compel all applicants and/or their contractors to
strictly comply with the completion of the work as it was approved by the Board. However, the
power to have a stop-work order issued by the Building Official on any work being conducted
in violation of a certificate of appropriateness, combined with the ability to apply the penalties
and remedies available under Section 12.217 of the amended ordinance against the perpetrators
of such illegal actions, helps insure that Fredericksburg! precious, designated resources can and
will be protected. Furthermore, these methods of enforcement help guarantee that the rulings of
the Historic Review Board can and will no longer be ignored by the owners of designated
property who must present their required applications before this newly empowered regulatory
body.

While it is not necessary to comment on the rest of the rather self-explanatory sections
and subsections contained in this chapter, the unusual nature of the certificate of appropriateness
application requirement for work involving ordinary maintenance and repair in subsections
12.209.2(a) and (b) should be noted. The provision in subsection 12.209.2(a) that requires

^^^ See Sections 12.209 and 12.206, respectively, in Appendix B.

113

owners of designated properties to apply for certificates of appropriateness for work involving
only ordinary maintenance and repairs, along with all the requirements of subsection 12.209.2(b)
are a unique combination in regard to common certificate of appropriateness application
procedures found in Texas historic preservation ordinances. Nothing quite similar to this
approach to regulating ordinary maintenance and repair work on designated resources is found
in the THC model ordinance, the San Antonio or Fort Worth ordinances, or any other CLG or
nonCLG-qualifying Texas ordinances studied for this thesis. However, the amended ordinance
does combine an adaptation of the permit process for ordinary maintenance and repair work
approval carried out by the historic preservation officers of the certified local governments of San
Antonio^^° and Fort Worth^^" with the current Fredericksburg ordinance requirement
that applicants submit certificate of review applications for all forms of work, with the Building
Official given the power and responsibility to decide what work constitutes ordinary maintenance
and repair. ^^" Since these provisions are adaptations of maintenance and repair permit
requirements and procedures already approved by the THC in the San Antonio and Fort Worth
ordinances, and since the THC guidelines do allow for all but "extreme deviations" from the
content of the sections given in the model ordinance for CLG status, the certificate of
appropriateness requirements and procedures for work involving ordinary maintenance and repair
written in the amended ordinance should not prohibit Fredericksburg from receiving certified
government status from the Texas Historical Commission.^-' ^

228 Subsection 35-434.3, p. 31.

229 Subdivision D, p. 26.

230 See subsection 12.205(d) in Appendix A.

231 THC, p. 1.

114

It is hoped that by deliberately adapting the old, familiar method of the certificate of
review application requirements for ordinary maintenance and repair work into the amended
ordinance^ certificate of appropriateness requirements, the confusion or unintentional
noncompliance that might occur among designated property owners were a new method of
regulating ordinary maintenance and repair can be avoided. It is also hoped that the air of
familiarity maintained in the requirements for approval of ordinary maintenance and repair in the
amended ordinance will give the owners of designated property within Fredericksburg^ only
current historic district yet another incentive, although slight, to support the adoption of the
amended ordinance for a trial, four year term. Fortunately, the requirements for complete
applications for certificate of appropriateness for ordinary maintenance and repair work in
subsection 12.209.2(a) did not have to be greatly expanded from those required under
Fredericksburg^ current ordinance^^^ in order to satisfactorily meet the requirements for
certificate of appropriateness applications found in the THC model ordinance. ^^•^ Thus, the
advantage of familiarity is kept in this aspect of the certificate of appropriateness for ordinary
maintenance and repair as well.

Finally, it should be noted that most Texas CLG and nonCLG municipalities' historic
preservation ordinances list additional criteria for their historical conmiissions' use in evaluating
certificate of appropriateness applications that are more specific to the physical characteristics of
their municipalities' respective significant resources than those given in the Secretary of the
Interior^ Standards. However, such a practice is intentionally avoided in the criteria for use in
evaluating certificate of appropriateness applications under subsection 12.209. 1 of the temporarily
amended ordinance. It is felt that the first members of Fredericksburg^ Historic Review Board

^^^ See subsection 12.205(d) in Appendix A.
233 THC, Section 9, p. 12.

115

to be installed under the temporarily enacted, amended ordinance should be the ones to adopt
guidelines that are specific to the physical characteristics of the cityS significant resources and
to social, political, and economic needs of its citizens, since they are much more qualified to
make such location-specific judgments than is the author of these amendments. Consequently,
the ordinance follows the recommendation of the model THC ordinance by requiring that the
Board formulate, adopt, and apply guidelines that are more location-specific than, but in
conformity with, the Secretary of Interior^ Standards and that are to be used as additional
criteria for the approval of certificates of appropriateness/-^^

Subsection 12.209.1 also requires the Board to use the guidelines for sign design and
placement found in Fredericksburg's signage ordinance (Article 3.1000).^^^ However, the
key phrase in subsection 12.209.1 in regard to signage regulation in historic districts and on
historic landmark properties is "as amended." Under subsection 3.1007(f) of the current
ordinance, only signs located in Fredericksburg's single, municipally designated historic district
fall within the jurisdiction of the Historic Review Board.^^^ In order to resolve the conflicts
between the two ordinances, the signage ordinance must also be temporarily amended to allow
all signs in all designated historic districts and on all historically landmarked properties to come
under the certificate of appropriateness regulations found in Section 12.209 of the temporarily
amended historic preservation ordinance. A discussion of the temporary amendment to the
signage ordinance proposed for this purpose is found in Chapter Three.

23'* THC, Sections, p. 11.

235 Fredericksburj
4.

236 ibid,^. 3-64.

235 Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 3, pp. 3-56 -
3-64.

116

VII. Sections 12.213 - 12.215

§ 12.213 Prevention of Demolition by Neglect

(a) All historic landmarks and all buildings, objects, sites, and structures within historic districts,
whether occupied or not, shall be preserved against decay and deterioration and kept free from
certain structural defects by the owner thereof or such other person(s) who may have legal
custody and control thereof.^^^ The owner or other person(s) having such legal custody, in
keeping with city's minimum housing standards, shall repair such building, object, site, or
structure if it is found to have any of the following defects. -^^

(1) A deterioration or inadequate foundation. Defective or deteriorated flooring
or floor supports or flooring or floor supports of insufficient size to carry
imposed loads with safety;

(2) Members of walls, partitions, or other vertical supports that split, lean, list,
or buckle due to defective material or deterioration. Members of walls,
partitions, or other vertical supports that are of insufficient size to carry imposed
loads with safety;

(3) Members of ceilings, roofs, ceiling and roof supports, or other horizontal
members which sag, split, or buckle due to defective materials or deterioration.
Members of ceilings, roofs, ceiling and roof supports, or other horizontal
members that are of insufficient size to carry imposed loads with safety;

(4) Fireplaces or chimneys which list, bulge, or settle due to defective material
or deterioration. Fireplaces or chimneys which are of insufficient size or
strength to carry imposed with safety;

(5) Deterioration or ineffective waterproofing of exterior walls, roofs,
foundations, or floors, including broken windows or doors. Defective protection
or lack of weather protection for exterior wall coverings, including lack of paint
or weathering due to lack of paint or other protective covering. Any fault or
defect in the building which renders same structurally unsafe or not properly
watertight;

23"^ Adaptations of S.A. Ord., Section 35-436.8, p. 43, and of Fort Worth, Texas, "City
of Fort Worth Historic Preservation Ordinance," Subdivision F, p. 37.

23^ The follow are adaptations of S.A. Ord., Section 35-436.8, pp. 43-44, unless
otherwise noted.

117

(6) Deterioration of any other feature so as to create a hazardous condition which
could lead to the claim that demolition is necessary for the public safety. ■'^

In addition, the owner or other person(s) having legal custody and control of an historic landmark
or a building, site, object, or structure located within an historic district shall keep all property,
including vacant property, clear of all weeds, fallen trees or limbs, debris, abandoned vehicles,
and all other refuse. '^

(b) The Board, on its own initiative, shall file a petition with the Building Official requesting that
he/she proceed under the City of Fredericksburg's minimum housing and structural safety
standards to require correction of defects or repairs to any structure covered by subsection (a)
above so that such structure shall be preserved and protected in accordance with the purpose of
this ordinance.^'* ^

(c) If any historic landmark or any building, object, or structure within an historic district shall
have to be demolished as a public safety hazard and the owner(s) shall have received two or more
notices from a city inspector of building neglect in violation of this and any other city ordinance,
no application for a certificate of appropriateness for a project on the property may be considered
for a period of two years irom the date of the demolition of the historic landmark or building,
object, or structure within the historic district. Additionally, no permit for a curb cut needed for
the operation of a surface parking lot shall be granted by any city office during this
period.^'*^

§ 12.214 Public Safety Hazards and Emergency Securing Measures^*'

No building, object, or structure designated a landmark or located within an historic district may
be demolished in whole or in part as a hazard to public safety until the City Historic Preservation
officer has been notified by the Building Official that an order for such demolition is being
prepared, and the Board has had an opportunity to discuss with the Building Official and any and
all other municipal officials involved the feasibility of emergency measures to secure the unsafe
structure in such a manner as to preclude the possibility of injury to the public.

After emergency measures are undertaken, the City Historic Preservation Officer shall meet with
the Building Official and any and all other municipal officials involved wishing to issue the order
for demolition to review the condition of the structure and the development of plans for its

2^^ Adaptation of THC, Section 14, p. 14.

2'^ Adaptation of S.A. Ord., Section 35-436.8, p. 44.

241 Ibid.

242 Ibid.

243 Adaptation of S.A. Ord., Section 35-436.10, p. 45.

118

rehabilitation. If within one (1) month the City Historic Preservation Officer, after consultation
with the owner(s) of the property and the municipal legal staff, makes a report acceptable to the
Board on the feasibility of a successful rehabilitation of the building, object, or structure, the
Board shall make a recommendation to the Building Official that the demolition permit be
rescinded on the condition that the owner(s) of the property complete the planned rehabilitation
so that the building, object or structure complies with all applicable public safety standards. If,
however, after one (1) month no feasible scheme for the further protection of the building, object,
or structure has been developed in cooperation with the owner (s) of the property, the Board shall
make a recommendation to the Building Official for an order of demolition.

§ 12.215 Procedure for Requesting Public Ownership or Control of Designated

Properties

If the Board finds that a historic landmark or a property located within an historic district cannot
be preserved and is in danger of being lost under the certificate of appropriateness procedures
set forth in Sections 12.209, 12.210, and 12.21 1, the Board shall recommend to the City Council
that the endangered designated property be acquired by a gift, devise, or purchase by ftmds
donated or granted by individuals, public groups, state agencies, or federal agencies.

Analysis and Commentary on § 12.213, 12.214, and 12.215

The provisions against demolition by neglect of designated buildings, objects, and
structures provided in Section 12.213 goes beyond the basic requirements for a section
prohibiting demolition by neglect written in the THC model ordinance by granting the Board a
mechanism in subsection (b) to prevent continued demolition by neglect from being allowed on
designated properties. ^'*^ Section 12.213 also builds upon basic THC ordinance requirements
by providing in subsection (c) for the application of stiff penalties against repeat offenders of the
prohibition against demolition of designated properties by neglect when these owners' continual

244 Adaptation of Boeme, Texas, "City of Boeme Ordinance No. 91-05," Section 8, p.
10.

245 THC, Section 14, pp. 13-14.

119

neglect results in the demolition of their designated building, object, or structure as a public
safety hazard. ^^

Along with Fredericksburg^ stringent additional requirements for receiving a certificate
of appropriateness for demolition provided in subsection 12.209.3, Fredericksburg currently does
not have much need for such an enhanced prohibition against demolition by neglect. Touring the
entire city, one finds very few buildings, objects, or structures, both old and new, that are being
allowed to deteriorate through neglect. Perhaps this is because of the stereotypical penchant for
neatness in the Germanic culture as it has manifested itself in the Texas Hill Country.
Furthermore, as mentioned in the analysis and commentary on subsection 12.209.3 in Part VI of
this chapter, the fact that many of the cityS tourists are attracted to Fredericksburg and to its
numerous tourist-oriented businesses by the renown of its unique architectural and cultural
resources means that business people, at least, are not likely to allow their tourist-attracting
historic buildings or structures to become seriously neglected unless they are in somewhat severe
financial difficulty. Section 12.213 is written to more effectively and firmly deal with the
occasional cases of demolition by neglect that may occur under current conditions in
Fredericksburg than the suggested demolition by neglect provision in the THC model ordinance.
More importantly, however, this section is also designed to provide a high level of continual
protection to all of Fredericksburg^ designated buildings, objects, and structures in order to
counter any unforeseen changes in Fredericksburg^ future. The economic downswings or
changes in the nature of Fredericksburg^ appeal to die tourist market described in the
commentary on subsection 12.209.3 might cause an upswing in the number of owners who wish

246

Ibid.

120

to intentionally demolish their designated properties through neglect. '*' Having the
additional provisions of subsections 12.213(b) and (c) in place were any such significant and
unforeseen changes to take place in Fredericksburg will help discourage owners from actually
carrying out the demolition of their designated properties through intentional neglect. The
addition of these two provisions into the amended ordinance at this time will also allow the city
to avoid the risk of losing several important resources were only the THCh relatively weak
provisions against demolition by neglect in place in the ordinance, while the Board waits for the
more forceful provisions of subsections 12.213(b) and (c) to be drafted and then approved for
amendment to the ordinance.

There is also little current need for Section 12.214 of the amended ordinance, for the very
same reasons explained for the lack of much need for the requirements of Section 12.213 in
Fredericksburg at this time. However, the provisions of Section 12.214 are designed to enhance
those of Section 12.213. Section 12.214 is meant to prevent owners of designated properties
who have not been able to receive a certificate of appropriateness for demolition by any other
means provided by the amended ordinance, from destroying one of Fredericksburg^ significant
resources by intentionally making their property a public safety hazard that must be condemned
and demolished according to the law. The provisions of Section 12.214 provide for the
possibility of saving all condemned designated properties that can be stabilized and secured from
demolition through extensive rehabilitation. The section also provides the ability to delay the
demolition of such properties, so that the CHPO and other city officials can gather evidence
against the owner of the property to formally charge him/her with violations of the preservation
ordinance and seek the imposition of the penalties and remedies provided in all three subsections

^^^ Please see the commentary on subsection 12.209.3 in Part VI for a more detailed
description of such possible changes and the dangers these possible changes hold for
Fredericksburg^ designated properties.

121

of Section 12.217. The remedy allowed under subsection (a)(1) of Section 12.217 should force
the owner(s) of such property to agree to carry out the necessary rehabilitation of their
deteriorated property, thereby allowing the Board to recommend that the demolition order on such
property be rescinded and enabling the property itself be restored to at least some semblance of
its former appearance pursuant to Section 12.214.

Significantly, the provisions contained in Section 12.214 are not found in any form in the
THC§ model ordinance for local govenunents wishing to qualify for CLG status. However, the
incorporation of these extremely important and useful provisions into the amended ordinance
should not jeopardize Fredericksburg^ chances of receiving CLG designation, since these

provisions are an adaptation of similar provisions found in the preservation ordinance of the

248
certified local government of San Antomo.''^°

Section 12.215 is another section of the amended preservation ordinance not found within

the model ordinance recommended by the THC. It is designed to help the Board prevent the

destruction of Fredericksburg^ significant historic, cultural, and architectural resources. It is

also written in such a way as to be a political asset rather than a political liability in the fight to

have the amended ordinance adopted on both the four year trial basis and then on a permanent

basis by the City Council. The fact that this section does not provide for the expenditure of

public funds on the acquisition of endangered designated property should help assure the citizens

of Fredericksburg that precious government funds, which people may feel should rightfully be

spent on many other more pressing community needs, will not be continually spent on public

acquisition of private property. This fact helps further assure people that the city taxes citizens

248 Section 35^36.10, p. 45.

122

of Fredericksburg are required to pay will not be raised solely to support the cause of acquiring
all endangered designated property for public use and enjoyment. "

^'^^ The amendment to the Fredericksburg Tax Code proposed in Chapter Three concerns
the allocation of a percentage of the city§ Hotel Occupancy Tax, a tax from which citizen^ of
Fredericksburg are exempt.

123

Vm. Sections 12.216 - 12.217

§ 12.216 Applicability and Enforcement of the Ordinance in its Entirety

§ 12.216.1 Applicability

The provisions of this ordinance shall apply to all places, objects, sites, structures, or property
within the current municipal limits of the City of Fredericksburg that are privately owned and
owned by the City of Fredericksburg. ■^^^

§ 12.216.2 Enforcement of the Ordinance in its Entirety

(a) Responsibilities of the City Historic Preservation Officer

Along with the enforcement of work performed pursuant to a certificate of appropriateness
provided in subsection 12.209.5 of this ordinance, the City Historic Preservation Officer shall
be responsible for conducting periodic exterior inspections of all historic landmarks and all
property within every historic district, so that every property designated under this ordinance
shall be inspected at least once per year, in order to promote compliance with all provisions of
this historic preservation ordinance and swifdy remedy all violations of the provisions of this
ordinance. All violations not covered in subsection 12.209.5 of this ordinance shall be reported
by the City Historic Preservation Officer to the City Attorney, and the person(s) found to be
responsible for the violation(s) shall be subject to the penalties and remedies available under §
12.217 of this ordinance. ^^^

(b) Responsibilities of the City Attorney

It shall be the duty of the Attorney of the City of Fredericksburg to legally pursue the conviction
of all alleged violators of the provisions of this historic preservation ordinance to the full extent
necessary and possible in a court of competent jurisdiction pursuant to the penalties and remedies
available under § 12.217 of this ordinance.^^^

2 SO

Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation

Ordinance," Subdivision A, p. 8

^^^ Adaptation of City of P
R.I. (Providence: R.I.: City of Providence Department of Planning, 1993), p. B-6

^^^ Adaptation of Fort Worth
Ordinance," Subdivision G, p. 38.

251

Adaptation of City of Providence, A Plan for Preservation: The City of Providence,

y
^^^ Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation

124

§ 12.217 Penalties and Remedies

(a) Civil.

(1) Any person, firm, or corporation who constructs, reconstructs, alters,
restores, renovates, relocates, stabilizes, repairs, or demolishes any building,
object, site, or structure in violation of this ordinance shall be required to restore
the building, object, site, or structure to its appearance or setting prior to the
violation. An action to enforce this provision shall be brought by the City of
Fredericksburg. This civil remedy shall be in addition to, and not in lieu of, any
criminal prosecution and penalty.

(2) If demolition or removal of an historic landmark or of any building, object,
site, or structure located within an historic district occurs without a certificate of
appropriateness for such action, then any permits on subject property will be
denied for a period of three (3) years. In addition, the applicant shall not be
entitled to have issued to him/her/it by any city office a permit allowing any curb
cuts on subject property for a period of three (3) years from and after the date
of such demolition or removal. Nor shall a parking lot for vehicles be operated
on the site for a period of three (3) years from and after the date of such
demolition or removal. The owner(s) of the site shall also maintain the site in
a clean and orderly state and shall properly maintain all existing trees and
landscaping on the site. When these restrictions become applicable to a particular
site, the Board through the City Historic Preservation Officer shall cause to be
filed a verified notice thereof in the Official Public Records of Real Property of
Gillespie County, the tax records of the City of Fredericksburg, and the records
of the Gillespie Appraisal District, and a temporary mark, "D/RPEN" (standing
for Demolition/Removal Penalty), shall be placed on the subject property in the
official zoning maps of the City of Fredericksburg for a period of three (3) years.
Such restrictions shall then be binding on future owners of the property. The
restrictions imposed shall be in addition to any fines imposed pursuant to the
criminal penalties listed in subsection (b) below and the cumulative remedies
listed in subsection (c) below.

(b) Criminal^^^

Any persons, firm, or corporation violating any provision of this ordinance shall be guilty of a
misdemeanor, and each shall be deemed guilty of a separate violation for each day during which
any violation hereof is committed. Upon conviction, each violation shall be punishable by a fine
not to exceed one thousand dollars ($1,000.00).^^^

253 Adaptation of S.A. Ord., Section 35-437, p. 45.

254 Ibid., p. 46, and adaptation of Fort Worth, Texas, "City of Fort Worth Historic
Preservation Ordinance," Subdivision G, pp. 38-39.

255 Adaptation of S.A. Ord., Section 35-437, p. 46.

125

(c) Cumulative Remedies

The provisions of this Section shall apply in addition to other enforcement procedures or penalties
which are ^available and applicable under the violation(s) of any and all other city
ordinances.

256

Analysis and Commentary on § 12.216 and 12.217

Sections 12.216 and 12.217 are intended to give additional "teeth" to the ordinance
beyond that provided by the current Fredericksburg ordinance''-^ or the "Penalties" section
found in the THC§ model ordinance.^^^ Subsection 12.216.2 of Section 12.216 does so by
specifically charging the City Historic Preservation Officer and the City Attorney with the
responsibility of enforcing the ordinance in its entirety. As such. Section 12.216 avoids the
nebulous wording of the current violations and penalties section of the Fredericksburg ordinance,
which charges "property city officials, or their duly authorized representatives" to enforce the
ordinance by applying various remedies and penalties. ^^^ This charge gives the responsibility
of enforcement to many different possible city officials and, therefore, to no one in specific,
allowing the responsibility to be passed along and lost in the shuffle while owners of designated
property get away with not even complying with the simple certificate of review requirements
found in Section 12.205 of the current ordinance.^""

^^" Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Subdivision G, p. 39.

2^^ See Section 12.209 in Appendix A.

258 jfjQ Section 15, p. 14.

259 Section 12.209, p. 12-10.

260 pp. 12-8 - 12-9.

126

Significantiy, subsection 12.216.1 extends the applicability of the provisions of the
ordinance to all properties owned by the City of Fredericksburg, thereby enabling the Historic
Review Board to designate and regulate any properties owned by the city that might be significant
for historic, cultural, and architectural reasons. This provision serves warning to city officials
and employees that they will not be allowed to get away with any form of detrimental change to
publicly owned, historically designated properties, simply because of the status of these properties
as public or the status of these people as city employees or trustees. The fact that the city itself
is not exempt from the regulations of the amended ordinance will hopefully generate more of a
willingness of on the part of owners of designated private property to support the adoption of the
amended ordinance and to later comply with the requirements of the ordinance, since they know
that all owners of designated properties are to be treated in an equitable manner. Subsection
12.216. 1 also enables the Historic Review Board to force the city government to avoid hypocrisy
and lead by example in conforming to the auns and regulations of the city's amended historic
preservation ordinance.

Section 12.217 provides much more specific, comprehensive, and stiffer penalties and
remedies than those provided by Section 12.205 of the current ordinance or the "Penalties"
section of the THC model ordinance.^^^ Significantly, subsection 12.217(b) raises the
criminal fine to be imposed for each convicted violation from the paltry $200.00 maximum
allowed under Section 12.209 of the current ordinance to the maximum sum of $1,000.00 per
each violation. This increase makes the fine equal to the maximum fine allowed for each

261 jfjQ Section 15, ("Penalties"), p. 14, states simply, "Failure to comply with any of
the provisions of this ordinance shall be deemed a violation and the violator shall be liable for

a misdemeanor charge, and be subject to a fine of not less than nor more than

for each day the violation continues." Thus, no specific officials are charged with
enforcement of the ordinance are recommended for listing other than those charged with the
enforcement of the certificate of appropriateness compliance in Section 12, p. 13, and no
other penalties other than criminal penalties are recommended.

127

violation of the Gty of Fredericksburg Zoning Ordinance, ^^^ which is the guideline the THC
model ordinance suggests be followed in determining the maximum amount allowable for a
violation of an historic preservation ordinance/"-'

The authorization given to the CHPO to inspect all designated properties for compliance
with the ordinance in subsection 12.216.2(a), the implied warning given in subsection 12.216.2(b)
that all aspects of the ordinance will be legally enforced, and the stiff civil and criminal remedies
granted in Section 12.217 are all designed to give the Historic Review Board the means it will
need to coerce and enforce compliance with the enhanced regulations of the amended ordinance.
While the authorization given to the CHPO to carry out annual external inspections of all
designated properties in subsection 12.216.2(a) could raise objections among the citizens of
Fredericksburg who are fearful that the ordinance allows for excessive government regulation of
private property, it is felt that this external inspection requirement is absolutely essential if all
of Fredericksburg^ designated resources are to be equally and adequately protected from harmful
change. The fines and remedies imposed upon violators uncovered by the first year of
inspections can also serve as a warning to all owners of designated properties that the amended
ordinance will not be as equally lax or unenforceable on those who chose to ignore the cityS
historic preservation regulations as was the first weak ordinance, thereby helping to further
increase general compliance with the amended ordinance among the citizens of the city.

It is true that neither the THC model ordinance nor the preservation ordinances of CLG
and nonCLG status Texas municipalities studied in the preparation for this thesis contain any such
annual inspection authorization as the one given in Section 12.217(a). However, this

262 Fredericksburg, Texas, City of Fredericksburg Zoning Ordinance, 1986, Revised
1988, Section 5.310 (Austin, Texas: Bovay Engineers, Inc., 1986), p. 5-75.

263 77/c Section 15, p. 14.

128

authorization is a natural extension of the specific inspection authorization given designated
officials to enforce compliance with the work allowed by certificates of appropriateness in the
THCS model ordinance^"^ and the ordinance of the certified local government of Fort
Worth. °^ It is also very similar to the powers of inspection given other Texas and other
states' municipal officials to enforce compliance with municipal health, safety, and fire
codes. "" These facts should be told to the citizens of Fredericksburg during the public
education campaign to help gain support for the adoption of the amended ordinance, in order to
assure them that this authorization of external inspection is not any more excessive than the
health, building, and fire code compliance inspections they have grown used to under other city
ordinances. Citizens should also be assured that the fact that the authorization allows only
exterior inspections of designated property means that the inspections should involve as little
inconvenience to the owner as does a meter reading by a city employee. In this way it is hoped
that the potential distrust and dissatisfaction which the inspection authorization granted in
subsection 12.217(a) might cause among citizens of Fredericksburg upon their initial reading of
the proposed amended ordinance can be greatly defused, so that this essential enforcement
provision will not jeopardize the chances of the adoption of the amended ordinance by the City
Council.

264 Ibid., Section 12, p. 13.

26^ Subdivision D, p. 35.

266 Thus, the inspection authorization given the CHPO in subsection 12.217(a) should
not jeopardize Fredericksburg^ ability to receive certified local government status from the
THC.

129

IX. Section 12.218

§ 12.218 Severability

It is hereby declared to be the intention of the City Council that the sections, paragraphs,
sentences, clauses, and phrases of this ordinance are severable, and, if any phrase, clause,
sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid
judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect
any of the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since
the same would have been enacted by the City Council without die incorporation of any such
unconstitutional phrase, clause, sentence, paragraph, or section/"'

Analysis and Commentary on § 12.218

Surprisingly, the THC model ordinance for local governments wishing to qualify for CLG
status does not contain or even recommend the inclusion of a severability clause within a
municipal ordinance. However, such a provision is absolutely essential to insure that some level
of historic preservation regulation may be maintained in this litigious age and in a state where
anti-takings legislation has recently been passed to appease high feelings of excessive government
regulation amongst its citizens.^^^ Indeed, the certified local governments of San Antonio
and Fort Worth both found it legally expedient to include such provisions in their respective
preservation ordinances, in light of the legal and political ramifications of the current Texas
mindset against perceived excessive government regulation of private property.

2^^ Adaptation of Fort Worth, Texas, "City of Fort Worth Historic Preservation
Ordinance," Section 3, pp. 39-40.

^^^ This stringent anti-regulatory takings law requires that many government actions
which result in reductions of greater than twenty-five percent of the fair market value of
private property shall be deemed a regulatory taking. Fortunately for the cause of historic
preservation, zoning regulations are excluded from the takings law. W. Dwayne Jones,
Preservation Planner, Texas Historical Commission, conversation with author, Austin, Texas,
31 August 1995.

130

Section 12.218 is especially necessary in Fredericksburg^ ordinance, given the relatively
high level of feeling against government regulation of private property that is prevalent in the
city, so that city officials. Board members, and City Council members will be able to continue
to exercise and enforce all provisions of the temporarily amended ordinance with confidence in
the face of threatened or actual lawsuits brought against the city. Furthermore, Section 12.218
guarantees that all other regulations in the amended ordinance can and will be enforced in the
unlikely event that a provision or section of the ordinance were to be struck down as
unconstitutional. This provision insures that the historic, architectural, and cultural resources of
the city will continue to receive the highest level of protection possible while the unconstitutional
portion of the amended ordinance is rewritten to comply with the constitution and is then added
to the ordinance through amendment.

131

X. Section 12.219

§ 12.219 Expiration Date and Provisions for the Permanent

Adoption of this Temporary Amended Ordinance

(a) This ordinance, temporarily amending in its entirety Article 12.200 Historic Preservation of
the Fredericksburg Code of Ordinances, shall expire thirty (30) days after the exact day that
marks the fourth anniversary of the enaction of this temporary amended historic preservation

ordinance by the City Council, on (month) (day) . 20 , unless this temporary ordinance

is permanently enacted as an amendment in its entirety of Article 12.200 Historic Preservation
of the Fredericksburg Code of Ordinances upon the vote of the City Council at a public hearing
specifically held to evaluate the performance of and community satisfaction with this ordinance.
Said public hearing shall give the citizens of Fredericksburg, interested parties, and technical
experts the opportunity to present testimony in favor or against the permanent enaction of this
ordinance by the City Council. The City Council shall give public notice of the hearing, follow
publication procedure, hold its public hearing, and make its determination in the same manner
as provided in the general zoning ordinance of the City of Fredericksburg. Said public hearing
shall be held within thirty (30) days of the exact day which marks the fourth anniversary of the
enaction of this temporary ordinance by the City Council.

(b) If this temporary, amended ordinance is allowed to expire upon the vote of City Council, the
original Article 12.200 Historic Preservation of the Fredericksburg Code of Ordinances amended
by this ordinance shall reapply in its entirety and be enforced as the law controlling historic
preservation in the City of Fredericksburg immediately upon the expiration of this temporary,
amended ordinance.

(c) Upon the expiration of this temporary, amended ordinance and the reapplication of the
original Article 12.200, those persons serving as members of the Historic Review Board under
the requirements of § 12.203 of this temporary, amended ordinance shall continue to serve until
the expiration of their present terms and shall then be replaced, if necessary, by persons fulfilling
the requirements of § 12.204(c) of the original Article 12.200.^"^ However, the office of
City Historic Preservation Officer shall immediately be abolished, and the Building Official shall
resume his/her role in assisting the Historic Review Board as established by the original Article
12.200.

(d) All properties designated as historic landmarks or located within historic districts designated
under § 12.205 of this temporary, amended ordinance shall remain designated properties under
and subject to the provisions of the original Article 12.2(X) unless a property's designation is
repealed by the City Council because of a lack of conformance to the criteria for designation
established in § 12.204(a)(2) or § 12.204(b)(2) of the original Article 12.200.2'70

^"^ Adaptation of Fredericksburg, Texas, Fredericksburg Code of Ordinances,
'Fredericksburg Charter," Article XII, Section 12.11, p. 24.

270 itid.

132

Analysis and Commentary on § 12.219

Section 12.219 is designed to be the primary selling point of the relatively strong, new
level of historic preservation regulation the citizens of Fredericksburg are being asked to accept
with the initial adoption of the amended ordinance by the City Council, since it requires the
temporary ordinance to expire if, after a public debate, the City Council finds no merit in
permanently adopting the amended ordinance. This author does not know of the past or present
inclusion of a provision similar to Section 12.219 in any other municipal historic preservation
ordinance in Texas. However, the adoption of temporary amendments to a municipal ordinance
by the City Council of a home rule municipality is legal under the Constitution of the State of
Texas and under the powers granted to home rule municipalities by the laws of the State of
Texas,^^^ an opinion confirmed by Werner Faschnitz, Assistant City Attorney of the City
of San Antonio, Texas. ^^^ Mr. Faschnitz also believes that the creation of a temporary
historic preservation ordinance for Fredericksburg is legal under the powers granted to the City
of Fredericksburg by the "Fredericksburg Charter, "^^^ as long as the temporary ordinance
contains an expiration date and provides for the immediate replacement of the expired, temporary
ordinance with the original ordinance the temporary ordinance is designed to supersede.
Section 12.219 satisfies these legal requirements. It also provides an adequate amount of time
to enable the citizens of Fredericksburg to formulate educated conclusions on the merits and faults

2^^ Vernon's Texas Codes Annotated: Local Government, Vol. 1, Title 2, Subtitle D,
Chapter 51, Subchapter E (St. Paul, MN: West Publishing Company, 1988), pp 264-273.

^^^ Telephone conversation with author, 29 March 1996.

273 Fredericksburg, Texas, Fredericksburg Code of Ordinances, "Fredericksburg
Charter," pp. 1-26.

^^■^ Telephone conversation with author, 29 March 1996.

133

of the temporary, amended historic preservation ordinance and on whether or not they wish the
amended ordinance to remain the law governing historic preservation in the city.

Furthermore, the four year trial period authorized by Section 12.219 should be a short
enough period of enforcement to make the temporary adoption of the ordinance acceptable to a
large majority of people. Preservationists should be able to convince many citizens who are
skeptical of assurances that the amended ordinance will not hurt business interests in the city,
cause a drop in property values, or allow excessive and costly regulation of private property that
a four year period is not only an adequate amount of time to determine if such undesirable things
will actually result from the enforcement of the ordinance, but is also a short enough time to
allow for the reversal of such negative results without significant harm to those temporarily
affected.

Unfortunately, the temporary nature of the amended historic preservation ordinance will
not allow Fredericksburg to receive CLG designation and the technical and financial benefits that
accompany CLG status. Only after the City Council officially adopts the amended ordinance as
the permanent law governing historic preservation in the city can CLG status be conferred upon
Fredericksburg by the Texas Historical Commission.^^^ However, the four year trial period
established in Section 12.209 should be enough time to allow the many other positive results of
historic preservation regulation generated by the amended ordinance - benefits such as increases
in the property values of designated properties or within historic districts^'", noticeable and
directly linked increases in heritage tourism, and an increase in civic pride to name but a few -

2^^ W. Dwayne Jones, Preservation Planner, Texas Historical Commission, telephone
conversation with author, 05 February 1996.

^'''6 Donovan Rypkema, The Economics of Historic Preservation: A Community Leader's
Guide (Washington, D.C.: The Preservation Press, National Trust for Historic Preservation,
1994), p. 42.

134

to become readily apparent to both friend and foe of preservation alike, thereby greatly increasing
the amended ordinance's chances of being adopted on a permanent basis. The trial period will
also place added pressure upon the Board and the City Historic Preservation Officer to both make
the exercise and enforcement of the ordinance as benign as possible within the legal limits of the
ordinance and to educate as many of the citizens as possible on the value of protecting and
preserving the history of the community and the cultural and architectural legacies of the city's
collective past. This is as it should be, though, since from an purely ethical standpoint, those
who wish to use government regulation to impose supposed socially beneficial requirements upon
a skeptical public should have to successfully convince a majority of those to be regulated that
the desired restrictions will result in much more good then harm to individuals and to the
community as a whole.

The provision found in subsection 12.219(a) requiring that a public hearing be
"specifically held to evaluate the performance of and community satisfaction with the ordinance"
is also intended to be a major selling point of the ordinance to all citizens of Fredericksburg. The
subsection assures both the friends and foes of historic preservation in Fredericksburg that they
will be able to organize support for their respective views on whether or not the historic
preservation should be permanently adopted and then present their views on the subject to the
City Council at a meeting intentionally designed to allow the Council to receive a sense of the
prevalent opinion of the community before it make its final decision by vote on the matter. Thus,
both sides will be given equal opportunity to apply the political pressure of making their voices
be heard and their numbers of supporters be seen in order to remind the members of the City
Council that they will be held accountable for their respective votes on this issue when they are
up for reelection. This opportunity, in turn, will help assure all the people of Fredericksburg that
the opinion held by the dominant number of citizens concerning the permanent adoption of the

135

amended ordinance will almost certainly determine the outcome of the vote taken by the Council
regarding this matter, thereby allowing the decision to reflect the simple majority rule of the
community. Since neither the proponents or opponents of the temporary, amended ordinance
could ask for a more fair and open method of deciding the ultimate fate of the amended ordinance
than that oifered by Section 12.219, almost everyone should hopefully be persuaded to support
the adoption of the temporary, amended ordinance by the City Council and allow the people of
Fredericksburg to make up their own minds by the end of its four years of enforcement.

One final note. It may be argued that the possibility of the expiration of the amended
ordinance will influence the Historic Review Board and the CHPO to not be active in designating
new landmarks and historic districts and to be overly lenient in dealing with applications for
certificates of appropriateness and violations of the provisions of the temporary, amended
ordinance, all in the hopes of placating the desires of enough citizens to insure the permanent
passage of the ordinance. However, it is doubtful that such would be the case. Both the majority
of the City Council members and all of the members of the current Historic Review Board
interviewed for this thesis agree that stronger regulations are needed in the ordinance in order to
adequately protect Fredericksburg's significant historic, architectural, and cultural resources from
the threat of destruction posed by the city's continual growth in tourist visitation and population.
The temporarily amended ordinance provides the level of protection needed and desired by these
concerned citizens of Fredericksburg. Furthermore the CHPO and every member of the Historic
Review Board should each have demonstrated a commitment to and/or a level of expertise in the
cause of historic preservation in order to be appointed to their respective positions under the
requirements of the temporarily amended ordinance.^ Thus, both the members of the Board
and the CHPO will be compelled by a love of their community and its heritage and/or by

2^^ See subsection 12.203(b) and § 12.204 in Appendix B.

136

professional historic preservation ethics to actively apply all possible provisions of the enhanced
ordinance against the real or potential destruction of both designated resources and all resources
eligible for designation.

Even if it appears that a majority of the public will not support the permanent adoption
of the amended ordinance, the CHPO and Board will still not be daunted in their task to designate
the historic resources of Fredericksburg. This is because subsection 12.219(d) allows the
designations made under the temporary, amended ordinance to remain in effect under the
jurisdiction of the original Article 12.200. If the amended ordinance is not permanently adopted,
subsection 12.219(d) assures the members of the Board and the CHPO that there will at least be
an opportunity for public scrutiny of proposed changes to designated properties in the form of
the public certificate of review hearing required under Section 12.205 of the original Article
12.200.^^^ This hearing will allow the friends of preservation in Fredericksburg, galvanized
by the fight to initially adopt and then permanently enact the amended ordinance, to publicly
protest any proposed detrimental changes to a property and apply community pressure to the
applicants to make the intended alterations much more benign. Although such public protest
might not have the desired affect in some cases, at least the amended ordinance's emphasis on
designating more resources^^^ and the provision in the amended ordinance allowing those
properties designated under its jurisdiction to remain in effect under the original Article 12.200
will have resulted in making more owners of the city's heritage resources publicly accountable
for their actions and open to persuasion against harming the segment of Fredericksburg's heritage
they own. Thus, the critical situation of the heritage resources in Fredericksburg simply does
not allow the CHPO or any conscientious member of the Historic Review Board to give anything

° See Appendix A.
2^^ See subsection 12.203(h) in Appendix B.

137

,'rti ■■

?

less than their best efforts in attempting to utilize, administer, and enforce the temporary,
amended ordinance, and subsection 12.219(d) will help encourage the Board and CHPO to
actively designate Fredericksburg's significant properties by making them realize that such
designations will not be made in vain.

138

XI. Conclusion

The proposed, amended ordinance presented in this chapter is relatively lengthy for an
historic preservation ordinance governing a city the size of Fredericksburg. However, the many
sections that go above and beyond the basic requirements for CLG status established by the THC
and that make the ordinance so long are absolutely necessary. This is because these sections
either satisfy the specific regulatory needs of the current situation in the city or allay the fears
of the citizens, thereby making the adoption of the amended ordinance more politically acceptable
to the City Council. Unfortunately, Fredericksburg's relatively small population and tax base and
the resulting lack of expert staff the city may hire to help administer and enforce municipal
historic preservation regulations prevent the inclusion of other, more complicated and time-
consuming (from an administrative standpoint) provisions found in San Antonio and Fort Worth's
respective ordinances that would further increase the protection of the city's many heritage
resources and offer greater means to prevent the excessive regulation of private property under
the amended ordinance. These additional provisions include the establishment of different
categories (or levels) of regulation on designated properties based on the relative significance of
properties, as well as an expanded version of the qualifications for economic hardship recognition
as a means to receive approval for desired demolitions or removals of historically designated

structures.

The amended ordinance proposed in this chapter is also written in much detail in order
to firmly establish all the legal powers and authorities expressly granted to the Historic Review
Board, the City Historic Preservation Officer, and other municipal officials involved in
administrating and enforcing the ordinance. This has been done following the example of the
lengthy, highly detailed ordinances of the certified local governments of Fort Worth and San

139

Antonio. The detailed language of these cities' respective ordinances has served to help dissuade
citizens from filing frivolous lawsuits against these cities concerning the preservation regulations

9 on

enforced through these ordinances. ■^°"

It is hoped that a similar level of detail in the proposed, amended historic preservation
ordinance for Fredericksburg will not only help members of the community think twice before
challenging the regulations of the ordinance in court, but will also help the city defend itself in
legal suits filed against the municipality's enforcement of the ordinance. The high level of
explicit detail has also been included in the proposed ordinance to satisfy the penchant for
exactitude prevalent to this day among the descendants of the original German settlers of the Hill
Country, thereby hopefully allowing no doubt among the supporters of the ordinance about the
regulatory powers of the ordinance and, therefore, no disconcerting surprises concerning the
administration and enforcement of the ordinance once it is temporarily enacted by the City
Council. 2^^ Thus, the amended ordinance, as explained by the accompanying commentary
presented in this chapter, offers a viable means to satisfy the regulations needed to adequately
protect the city's heritage resources, meet THC requirements for CLG status, alleviate the fears
of community members concerning excessive restrictions on private property, and help protect
the city from needless, spiteful lawsuits by members of the community determined to forever

280 This statement is based upon the author's experiences as a summer intern in the
Historic Preservation Office of the City of San Antonio and upon the high praise given the
language and content of the Fort Worth historic preservation ordinance by W. Dwayne Jones,
Preservation Planner, Texas Historical Commission, conversation with author, Austin, Texas,
31 August 1995.

28^ The statement concerning the mindset for detail among the German-Texans of the
community may seem stereotypical in nature. However, it is made based upon the personal
experience of this author, both as a German-Texan and as a frequent visitor to the City of
Fredericksburg and other Hill Country communities.

140

oppose historic preservation regulation and embittered by the passage of the temporary, amended
ordinance.

141

CHAPTER THREE: RECOMMENDATIONS FOR NECESSARY
AMENDMENTS TO THE CITY'S TAX CODE, SIGNAGE ORDINANCE,
ZONING ORDINANCE, BUILDING CODE, AND FIRE SAFETY CODE

In order for the stated purpose and intent of the amended historic preservation ordinance
to be achieved once it is temporarily and then, hopefully, permanently adopted, it will be
necessary to amend both the city tax code and signage ordinance, change certain zoning
designations and restrictions on property within the city, and adopt a city building code and fire
code that increase the feasibility of the rehabilitation and adaptive reuse of certain designated
buildings and structures within the city. Provisions in the Texas Tax Code allow for the City of
Fredericksburg Hotel Occupancy Tax to be amended in a way that allows much of the revenue
generated from the tax to be allocated toward paying for some of the city's expenditures for the
administration and enforcement of the temporarily amended preservation ordinance. Subsection
12.209. 1 of the amended historic preservation ordinance requires the Historic Review Board to
use "Article 3. 1000 Signs, [of the Fredericksburg Code of Ordinances] as amended," as a guide
to follow in making decisions on applications for certificates of appropriateness concerning
signage in historic districts or on property designated as an historic landmark.^^^
Consequently, a temporary amendment to Article 3.1000 (the signage ordinance) must be made
to enable the regulations concerning signage on designated properties to coincide. Section
12.203, the section of the amended ordinance that reestablishes Fredericksburg's Historic Review
Board, gives the Board a mechanism to periodically review and recommend amendments to the
City of Fredericksburg Zoning Ordinance and the Fredericksburg Code of Ordinances in
subsection 12.203(h)(12). This mechanism should be utilized immediately once the amended

2^2 See Section 12.209 in Appendix B.

142

ordinance is adopted, so that several problem areas may be immediately addressed in the zoning
ordinance, building code, and fire code, and a amiable relationship can be established between
the Board and the Planning and Zoning Commission (hereafter referred to as the "Commission").
Each section of this chapter is devoted to analyzing the need for an amendment or change to a
municipal code or ordinance, recommending the form the necessary change or amendment should
take, and explaining how the recommended amendment or change will aid in the implementation
of the amended preservation ordinance.

I. A Temporary Amendment to the Hotel Occupancy Tax

The exercise and enforcement of the requirements and regulations of Fredericksburg^
current historic preservation ordinance require very little expenditure of city revenues. Board
members receive no compensation, the Building Official, who acts as the staff for the Board,
receives his pay almost exclusively for the services he renders as the "City Inspector," and the
few functions the Board is expected to carry out under the ordinance that do require some sort
of expenditure are mostly in the form of postage for mailings and costs associated with
duplicating or printing reports and recommendations. However, the ordinance as amended will
require some increase in expenditures of city funds in the form of a salary for the part time
CHPO, payment for services rendered by various preservation planning consultants, funding for
different educational programs, and various other expenses, all of which will need to be officially
allocated for the support of historic preservation regulation in the annual city budget.

It will be obvious to the citizens of Fredericksburg that the temporary adoption of the
amended ordinance will mean that the city will have to dedicate a jwrtion of its revenues toward
the exercise and enforcement of the provisions of the ordinance. It should be equally as obvious

143

that it will not be possible to provide the municipal funds needed to support the amended
ordinance^ requirements given the current level of revenue being received by the city.
Consequently, a major stumbling block toward gaining enough public support for the ordinance
to assure its passage by the City Council is going to be the significant tax increase the citizens
of Fredericksburg will perceive will be necessary to fund the amended ordinance if it were to be
adopted.

The provision in subsection 12.217(b) of the amended ordinance requiring that the money
received from fines imposed on convicted violators of the ordinance be used to further the cause
of historic preservation within the city of Fredericksburg is not expected to provide much revenue
toward the costs of administering the amended ordinance. Furthermore, it is hoped that this
source of funding will continue to decrease as time goes by and more owners become wary of
risking violations of the amended ordinance. It should, therefore, be assumed that, in one form
or another, municipal taxes will have to be raised in order to help pay for the implementation of
all aspects of the amended ordinance.

Both the Texas Tax Code and the City of Fredericksburg Hotel Occupancy Tax^"-'
do, however, provide a way to help directly and indirectly alleviate some of the tax burden that
must be borne by the citizens of Fredericksburg in order to pay for the exercise and enforcement
of the amended ordinance. Chapter 351, Section 351.101(b) of the Texas Tax Code states,
"Revenues derived from occupancy tax are to be expended in a manner directly enhancing and
promoting tourism and the convention and hotel industry," while Section 351.101(a) allows that
the "revenue from the hotel occupancy tax may be used for. . .historic restoration and preservation

^°^ Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 1, Article
1.400, pp. 1-10- 1-12.

144

984

projects at or near a convention center facility or that would be frequented by tourists. ^°^
Thus, the City of Fredericicsburg Hotel Occupancy Tax also may be temporarily amended to
specifically allocate a certain percentage of the armual revenue generated by the tax to support
tourism-generating programs conducted by the Historic Review Board in accordance with the
purpose of the temporarily amended preservation ordinance.

Although this author does not claim to have a great knowledge of tax law or the
formulation of a municipal tax code, he believes that a temporary addition of a section by
amendment in the spirit of the following proposal should be sufficient to accomplish the necessary
allocation requirement (Note: Please see Appendix C for a reproduced copy of the current City
of Fredericksburg Hotel Occupancy Tax):

§ 1.410 Allocation of Annual Revenue Collected from Tax*

Sixty-five (65) percent of the armual tax revenue collected from the tax shall be appropriated to
the City of Fredericksburg Historic Review Board in the annual city budget for expenditure in
a manner which directly enhances and promotes tourism in the City of Fredericksburg.

*State Law reference ~ Expenditure of revenue collected, V.T.C. A. , Tax Code, Section 35 1 . 101
By law, the monetary appropriations the Board will receive from the Hotel Occupancy
Tax carmot be used to pay for many of the expenses necessary to implement the requirements of
the amended ordinance, such as the costs of hiring preservation consultants to formulate a historic
preservation plan for the city or to help the Board formulate design guidelines for new
construction within historic disfricts. However, the hotel occupancy tax money could help pay
for some of the public educational programs the Board is required to develop according to
subsection 12.203(h)(16) of the amended ordinance if these programs are developed and promoted

^°^ Texas Historical Commission, Texas Preservation Handbook for County Historical
Commissions, 1994-95 (Austin, Texas: Texas Historical Commission, 1994), pp. 108-109.

145

to attract tourists as well as city residents. Since subsection 1.402(b) of the Hotel Occupancy
Tax excludes the imposition of the tax on permanent residents of Fredericksburg, the tax
provisions as temporarily amended could be used help to directly reduce some of the tax burden
that must be placed on citizens of Fredericksburg in order to support the full implementation of
the temporarily amended historic preservation ordinance. °-^

The revenue generated by the amendment to the Hotel Occupancy Tax could also be used
by the Board to help indirectly reduce the burden of taxation to support the amended ordinance^
implementation shouldered by the Fredericksburg taxpayer. Hopefully, the Board could follow
the lead of cities like Austin or Fort Worth. Austin places some of its hotel occupancy tax
revenue in a fiind used to grant money to projects that rehabilitate historic buildings and
structures for use as tourist-oriented sites and/or businesses, and it uses the rest to help promote
the visitation of historic sites and structures through advertising and public education campaigns.
Fort Worth utilizes some of its hotel occupancy tax money to fund a loan pool for tourism-
generating projects involving aspects of historic preservation.^"" By creating similar grants
and revolving loan programs and by promoting the visitation of historic sites, the Board could
benefit the city and its citizens in two ways. First, it could help to generate more construction
and construction-related job opportunities within the community by encouraging historic
rehabilitations and higher levels of care and maintenance of historic resources. Second, it could
help increase the level of tourism in the city, thereby creating more retail and supply jobs for
citizens, ftirther enriching business owners, and giving the city greater sales tax and parking
meter revenues. The increase in city tax revenue that could be indirectly generated by the

2^^ See Appendix C.

98fi

W. Dwayne Jones, Preservation Planner, Texas Historical Commission, telephone
conversation with author, 05 February 1996 .

146

Boards wise investment of the money it is annually allocated from the city Hotel Occupancy Tax
would, in turn, allow for a reduction of the levels of other forms of taxation on the citizens of
Fredericksburg that would otherwise be needed to support the implementation of the temporarily
amended preservation ordinance. Furthermore, the creation of or increase in citizen incomes
which the Board§ actions could indirectly produce would help ease the financial strain on overall
household incomes that would be caused by taxation to support the exercise and enforcement of
the amended ordinance.

Thus, by temporarily amending the Hotel Occupancy Tax in such a way, the city would
enable the tourists who enjoy the richness of Fredericksburg^ heritage to directly and indirectly
help the citizens of Fredericksburg pay for the enforcement of the regulations in the amended
preservation ordinance that are designed both to preserve and protect these resources and to
insure that tourists continue to spend their money in the city for the privilege of enjoying them.
The temporary amendment to the Hotel Occupancy Tax should be presented for adoption
simultaneously with the presentation of the temporary, amended preservation ordinance, so that
the advantages of the amended tax code can be used to help gain support for the temporary
enactment of the amended preservation ordinance. A public education campaign on how the
amended tax code could directly and indirectly reduce the need for an increase in city taxes to
help finance the implementation of the amended preservation ordinance, carried out by the
proponents of the amended ordinance, should be able to reduce opposition to the amended
preservation ordinance citizens based on the fear of significantly increased taxation that will result
from the ordinance's adoption. The successful generation of revenue from the temporarily
amended Hotel Occupancy Tax also should help generate public support for the permanent
enactment of both the amended preservation ordinance and the amended tax code.

147

II. A Temporary Amendment to the Signage Ordinance

Currently, subsection 3. 10007(f) of Article 3. 1000, Chapter 3 of the Fredericksburg Code
of Ordinances regulates signage in the city's only municipal historic district as follows:

(1) Signs other than exempt signs under Section 3.1005 to be placed in the
historic district shall also be subject to the review requirements of the historic
preservation ordinance.

(2) Businesses located in the historic district shall have the option to erect a
medallion or shield sign in lieu of the ground sign requirements of Section
3. 1007(b)(3) or (c)(5). Any such sign shall not exceed sixteen feet of sign area,
shall be mounted no more than nine (9) feet above the adjacent ground, and shall
be erected wholly on private property.^"'

A similarly worded provision controlling signage regulation in the historic district is written as

Section 12.208 of Fredericksburg's present historic preservation ordinance. ^°° However, the

temporarily amended historic preservation ordinance proposed in this thesis strongly encourages

the Historic Review Board to designate all eligible properties outside of the city's current, lone

historic district referred to in the signage ordinance. Since Section 12.209 of the amended

preservation ordinance requires that signage on all designated properties be regulated through the

requirements of the certificate of appropriateness procedures, and since subsection 12.209.1 of

the same ordinance states that the Board use the regulations found in Article 3. 1000 to guide its

decisions concerning the appropriateness of signage work requested for approval, it is necessary

to temporarily repeal subsection 3.1007(f) of Article 3.1000 cited above and add a new,

temporary section to the article regulating signage on all historically designated properties in the

city. The new, temporary section should read as follows:

287 p. 3.64.

288 See Appendix A.

148

§ 3.1008 Signage on Properties Designated as Historic Landmarks or in Designated

Historic Districts

(a) Signs other than those exempted under Section 3.1005 to be placed in designated historic
districts or on properties designated as historic landmarks shall also be subject to the certificate
of application requirements under Section 12.209 of Article 12.200, as temporarily amended.

(b) Businesses located in designated historic districts or on properties designated as historic
landmarks under Article 12.200, as temporarily amended, shall have the option to erect a
medallion or shield sign in lieu of the ground sign requirements of Section 3. 1007(b)(3) or (c)(5).
Any such sign shall not exceed sixteen (16) square feet of sign area, shall be mounted no more
than nine (9) feet above the adjacent ground, and shall be erected wholly on private property.

The extension of the Historic Review Board's jurisdiction over the placement of signs on all
designated properties through this temporary amendment gives the Board the same authority
granted it in Section 12.209 of the temporarily amended historic preservation ordinance, thereby
allowing both ordinances to coincide. The concurrence of signage regulation in both ordinances
in turn eliminates the possibility of an anti-preservation minded owner of a designated property
being able to use the conflicting signage regulations of the two ordinances to escape having to
conform with the additional, more stringent signage regulations offered under subsection 12.209. 1
of the amended preservation ordinance. Thus, the temporary amendment of Fredericksburg's
signage ordinance in this manner is needed to strengthen the enforceability of the certificate of
appropriateness regulations written into the temporarily amended historic preservation ordinance.
It should be noted that, although both subsection 3.1008(a) of the proposed, amended
signage ordinance and subsection 12.209.1 of the proposed, temporarily amended historic
preservation ordinance allow the Board to apply additional, historic preservation-oriented criteria
to the regulations written in Article 3. 10(X) before deciding on an application for a certificate of
appropriateness concerning signage, subsection 12.209. 1 also requires the Board to be guided by
the signage requirements specifically outlined in all relevant sections of Article 3.1000.^°^

2^^ See Section 12.209 in Appendix B.

149

This is so, because it is felt that the regulations in Article 3.1000 (an article too lengthy to be
reproduced in its entirety in this thesis) are extremely well done and provide an excellent
foundation of aesthetic regulation upon which to base any additional design requirements for
signage formulated by the Board under subsections 12.203(h)(8) and (h)(9) and applied under
subsection 12.209.1 of the amended historic preservation ordinance.^^O u should also be
noted that the temporary repeal of subsection 3. 1007(h) and the temporary amendment of Section
3.1008 to Article 3.1000 recommended in the previous paragraph should be publicly introduced
for temporary adoption by the City CouncU along with the introduction of the temporary,
amended historic preservation ordinance for adoption. This will allow the proponents of the
amended preservation ordinance to campaign for the adoption of the amended signage ordinance
along with the adoption of the temporary preservation ordinance as a requirement for the
successful enforcement of the amended preservation ordinance. Thus, it is hoped that the
temporarily amended signage ordinance will be adopted by the City Council immediately after
the CouncU temporarUy enacts the amended historic preservation ordinance. Hopefully, in turn,
the permanent adoption of the amended historic preservation ordinance (if indeed it is
permanently adopted) will also result in the permanent enaction of the temporary amendments to
the signage ordinance proposed above.

290 See Section 12.203 and Section 12.209, respectively, in Appendix B.

150

ni. Necessary Changes to the Otv of Frpihricksburv 7/)ninfi Ordinance

One of the most immediate needs for changes in the city zoning ordinance is to change
the height, massing, density, setback, and off-street parking regulations for each usage
classification within Fredericksburg's only current historic district so that these regulations will
coincide and not contradict the design guidelines for new construction, additions, alterations,
relocations, etc., that the Board is required to develop for this and other historic districts in
subsection 12.203(h)(7) of the amended ordinance.^^l These guidelines are designed to
ensure that all changes within a district are compatible with the general massing, density,
setbacks, and heights of the historic buildings that dominate the historic district in order to
maintain the overall historic character of the district. Allowing the existence of two different and
therefore contradictory sets of spatial regulations within an historic district undermines both the
authority of the Board and the enforceability of the amended historic preservation ordinance in
general. The existence of less restrictive spatial regulations help encourage owners to seek to
demolish their historic buildings and structures, especially historic commercial structures that
were not constructed incorporating Germanic architectural elements, in order that they might
maximize their allowable commercial/retail space with the construction of new buildings.

The "downzoning" that the Planning and Zoning Commission would need to do in order
to have their spatial regulations conform to the design guidelines of the Historic Review Board
might be challenged as a regulatory taking of private property by some of the more property-
rights oriented property owners within the area being downzoned. However, the city should be
able to defend itself against any takings challenge resulting from downzoning, since the
downzoning should not deprive the property owner all economically viable use of his/her land

^^^ See Appendix B.

151

and does in fact advance a legitimate state interest (the two primary tests used in proving or
disproving a regulatory taking). ^^ The downzoning would be based upon and modeled to
more closely conform to the guidelines written by the Historic Review Board under the authority
of the amended and adopted historic preservation ordinance. The authority to write such
construction, alteration, etc. guidelines for historic landmarks and historic districts granted in the
ordinance in turn comes from the THC's model historic preservation ordinance, which is written
in strict accordance with all relevant state laws. Thus, unless the guidelines are written by the
Board in such a way as to eliminate all economically viable use of a property (highly unlikely,
since the guidelines are written to conform to the heights, setbacks, etc. of existing historic
buildings), the downzoning that is used to conform to the guidelines should be perfectly legal and
therefore satisfy the first of the two tests to determine a regulatory taking. The fact that zoning
and historic preservation regulation as an overlay of zoning have traditionally been held by courts
to advance legitimate state interest,^^-' substantiated by the fact that Chapter 211 of the Texas
Local Government Code specifically authorizes the utilization of historic preservation regulation
as a function of zoning, should satisfy the second judicial test to determine a regulatory taking
described previously. ^^'*

Special off-street parking requirements already exist for designated portions of the
commercial areas of the historic district in subsection 6.825 of the City of Fredericksburg Zoning

^"^ Marya Morris, Innovative Tools for Historic Preservation (Washington, D.C.: The
National Trust for Historic Preservation and the American Planning Association, 1992), p.
25.

293

Ibid.

294 7HC.,p. 3.

152

Ordinance ?'^^ These requirements are designed to protect some of the historic buildings and
structures from demolition or partial demolition by owners who would, under normal zoning
classification regulations, have to be destructive of their or other properties in order to comply
with the full off-street parking requirements of the zoning ordinance.296 However, the Board
and the Commission should also sit down and update these requirements, so that the designated
portions of the district can be expanded to meet current needs and conditions. If this is not
carried out, owners of businesses not covered by these special conditions might be tempted to try
and acquire and demolish their neighboring historic buildings, since these demolitions would
allow such owners to provide the parking required by ordinance for their expanded floor space.
The lack of special off-site parking requirement designations of these owners' properties within
the zoning ordinance and the need to comply with the zoning ordinance's regular off-street
parking regulations could be used by these owners as a way to force the Board to grant them a
certificate of appropriateness for demolition.

In order to keep property owners from playing one set of regulations off against another
in front of both the Board and the Commission or in a court of law for the purpose of
circumventing the regulations and intent of the amended historic preservation ordinance,
conformity should be created in the coordination of spatial and off-street parking regulations
between the Board's guidelines for this and other future historic districts and landmarks and the
various zoning regulations in place on the properties in this and other future historic districts.
Of course, the amended ordinance could have been written with a section like the one contained
in the certified local government of Fort Worth's preservation ordinance, which allows the "more

295 Fredericksburg, Texas, City of Fredericksburg Zoning Ordinance, 1986, Revised
1988 (Austin, Texas: Bovay Engineers, Inc., 1986), pp. 6-83 - 6-84.

296

Ibid.

153

restrictive height and area regulations" of the preservation ordinance to control when its
regulations and those of the city zoning district classification restrictions contradict one
another.^^^ It is felt, however, that such a section in the amended ordinance could cause ill
will between the Board and the Commission and thereby alienate the Commission from the cause
of historic preservation. Since the members of the Board and the City Historic Preservation
Officer will need the Commission to be sympathetic to their desires in their quests to fulfill the
requirements and/or intent of the amended ordinance on various occasions, both the maintenance
of amiable relations with the Planning and Zoning Commission and the education of the members
of the Commission on the social and economic reasons for historic preservation regulations should
be one of the Board and CHPO's high priorities.

The various occasions when the Board and CHPO will need the cooperation of the
Commission are not limited to the times when the Board must formulate design guidelines for
newly designated landmarks and historic districts, must review and recommend changes to the
City of Fredericksburg Zoning Ordinance and the Fredericksburg Code of Ordinances, or must
present historic preservation plans for consideration and adoption as part of the comprehensive
plan for the city.^^^ The Board and CHPO also will need to go before the Commission from
time to time in completing the economic hardship and emergency demolition procedures required
in the amended preservation ordinance. Under these procedures, a land use variance for a certain
property or a certain area within a zoning district may have to be secured from the Commission
as the only way to achieve the rehabilitation and adaptive reuse necessary to prevent the building
from being demolished. The Board and the CHPO may sometimes even have to go before the

^^^ Fort Worth, Texas, "City of Fort Worth Historic Preservation Ordinance,"
Subdivision B, p. 17.

^^^ See subsection 12.203(h)(13) of the amended ordinance in Appendix B.

154

Commission to help an owner receive a variance from the very height, density, or other spatial
regulations that the Board and the Commission formulated earlier as the only way the owner can
make the property he/she wishes to demolish generate a reasonable economic return. It is
therefore absolutely critical that the Board and CHPO continually educate the members of the
Commission on the importance of historic preservation regulation and the crucial need for
flexibility in the zoning ordinance to provide the means necessary for the continual preservation
of all designated landmarks and designated properties within historic districts as possible.

Another reason for maintaining amiable relations between the Board and the Commission
and educating every Commission member on the importance of and need for historic preservation
is the fact that the Commission makes zoning and planning decisions that also affect both
properties eligible for designation, but as-of-yet undesignated, and properties soon to be eligible
for historic designation. The Board and CHPO must strive to see that the Commission takes
historic preservation considerations into account when making all its decisions, so that these
different decisions will be as benign as possible to the character of the as-of-yet designated
properties. Thus, along with having Board members or at least members of local preservation-
related organizations monitor Commission meetings and holding education sessions on historic
preservation for newly elected members of the Commission, members of the preservation
community should work to have Section 12.101, of Chapter 12, Article 12.100 of the
Fredericksburg Code of Ordinances amended to better benefit the cause of historic preservation
in the city. This amendment should require that the City Historic Preservation Officer be an ex
officio member of the Commission and that at least one mayor-appointed member of the
Commission is a member of the Board, the Gillespie County Historical Society, or the
Fredericksburg Heritage Federation. All of these actions and amendments, if implemented, will

155

insure that the Conunission will continually receive education in and guidance on matters
concerning historic preservation both from outside sources and from within its own ranks.

156

IV. Necessary Changes to the City Building Code and Fire Safety Code

Even though an owner with the help of the Board and CHPO might receive a land use
variance on his/her property that will enable him/her to rehabilitate the property for an adaptive
reuse and allow a reasonable amount of financial return on the designated property, the present
city building and fire safety codes would probably make the required rehabilitation economically
prohibitive and make the following of The Secretary of the Interior's Standards for Rehabilitation
impossible. The Standard Building Code of the Southern Building Code Congress International,
Inc., currently used as the building code by the City of Fredericksburg for all structures save one
and two family dwellings requires that buildings be brought into full compliance with current
code standards if the cost of the proposed renovation (or rehabilitation) exceeds fifty percent of
the building's assessed value. The Standard Building Code also requires partial compliance if the
renovation/rehabilitation cost ranges between twenty-five and fifty percent of the building's fair
market value. ^^^

Full or partial compliance with the current building code could require that an additional
means of egress be added to the exterior of highly prominent and pristine example of a particular
type of architecture in the city. Or compliance might mean that wooden floorboards must be
replaced or covered with fire-retardant materials, the use of period window frames and wooden
paneling is prohibited, or that original walls and ceilings must be ripped open in order to provide
plumbing for necessary sprinkler systems. The escalation of cost to rehabilitations that could be
caused by these draconian building code and fire prevention requirements, the loss of historic
interior fabric and character that could result, and the potential inability to follow The Secretary

^^ Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 3, Article
3.100, §3.101, p. 3-3.

157

of the Interior's Standards for Rehabilitation and thereby not qualify for Historic Rehabilitation

Tax Credit because of the building code requirements all greatly limit the necessary or desired

300
ability to preserve designated structures through historic rehabilitation and adaptive re-use.

While the amended historic preservation ordinance certainly does not regulate interior
changes to designated buildings, some of the requirements needed to bring buildings that are to
be rehabilitated up to "code" may affect the exterior appearance and character of designated
properties. Furthermore, the Board needs historic rehabilitation to be as financially inexpensive
and as legally uninhibited as possible, so that owners can afford the rehabilitations needed to
adaptively re-use and, thereby, save designated properties from demolition or relocation. The
relaxation of building code restrictions is also quite necessary, so that other municipally
designated and undesignated but qualifying historic buildings and structures can be protected and
preserved through the use of the Historic Rehabilitation Tax Credit for certified commercial
historic rehabilitations that have followed The Secretary of the Interior's Standards. For these
reasons, the Board, CHPO, and allies of historic preservation in Fredericksburg should work
tirelessly for the city's immediate adoption of the Building Officials and Code Administrator's
National Existing Structures Code as the code within the existing city building code that should
be used when code compliance is to be determined for work on older or designated historic
buildings and structures.

The National Existing Structure Code's point system for the safety evaluation of proposed
work allows some fire safety and spatial conditions to exist in older structures in violation of
current code standards, as long as the negative number of points these conditions receive in the
code compliance evaluation are balanced out or are exceeded by the positive numbers generated

^^ United States Department of the Interior, Preservation Tax Incentives for Historic
Buildings (Washington, D.C.: U.S. Department of the Interior, National Park Service. 1990),
p. 13.

158

by conditions that meet or exceed fire safety, spatial allowance, and other requirements of the
current building code. Thus, the National Existing Structure Code provides flexibility in a way
that satisfies the spirit of the building code and its many fire safety and prevention provisions,
while it still meets many of the material and financial needs of historic rehabilitation and
rehabilitation's goal of adaptive re-use.

In addition to having the National Existing Structures Code adopted as part of the city's
building code, the Board, the CHPO, and its allies should work hard to educate every city fire
marshal on the need for historic preservation regulation in Fredericksburg and its social and
economic importance of preservation to the city. Having a pro-preservationist fire marshall is
extremely important to the cause of increasing the economic and material feasibility of carrying
out rehabilitations in accordance with Jhe Secretary of the Interior's Standards, since the fire
marshal is given the power to modify any of the provisions of the Standard Fire Prevention Code
of the Association of International Fire Chiefs that the City of Fredericksburg currently
enforces. ■'^^ However, the Board, CHPO, and other preservationists should only expect, and
the fire marshal can only grant, modifications that "provide that the spirit of [the] code be
observed, public safety be secured, and substantial justice be done.

^^* Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 5, Article
5.100, §5.103, p. 5-3.

^^^Ibid.

159

CHAPTER FOUR: THE PROBLEM WITH SPRAWL AND

RECOMMENDATIONS FOR HELPING CURB SPRAWL'S EFFECTS AND

PRESERVE THE HISTORIC LANDSCAPE

I. Background Information

Fredericksburg, as a Texas Hill Country community, has been, is, and always will be
defined by the hills that surround it in the creek valley. The hills have historically isolated and
insulated the community from the outside world, making travel into and out of the city somewhat
difficult before the arrival of paved roads. Furthermore, the bedrock that exists just below the
soil line has traditionally made agricultural production difficult, thereby keeping the community
in relative poverty through dependence on ranching and orchards of hardy peaches as the only
means of production from the land. The Hill Country has also not been blessed with oil deposits,
which are found in abundance in most other parts of Texas. However, the hills did provide the
limestone needed to build the community's houses in the absence of an abundance of straight
lumber from area trees.

Thus, the substance of the hills to a large extent determined the form and texture of
Fredericksburg's early built environment, and the isolation and poverty created by the hills helped
Fredericksburg preserve many of its original and early buildings and structures from demolition
or great adaptation in the face of rapid growth and development. The small, oak and juniper-
covered hills are part of the context of Fredericksburg's built environment and part of the overall
historic landscape of the city, because they have and always will serve as the backdrop and setting
of the community. Because of the huge influence the hills have had on the development of
Fredericksburg, they are also part of the collective culture of the community, since so much of
the culture revolves around ways of life determined by the existence of the hills. The hills are

160

also part of the history and legend of the town, and their role in the securing of peace with the
Comanche Nation, recounted in Chapter One, is commemorated each year with the Easter Fire
Celebration, which traditionally has taken place in the hills inmiediately surrounding the city.
Now, however, the sparsely vegetated hills that once shielded Fredericksburg from development
and growth pressures are being threatened with development themselves, development that will
forever change the historic landscape of the community and mar the scenic beauty for which
Fredericksburg is known.

The orchards and ranches that surround the city and that have existed as a means of
support for area residents almost from the beginning of the community are also part of the
historic landscape and traditional culture and character of Fredericksburg. Furthermore, peach
production still serves as a major component of Fredericksburg economy. Peaches are a
relatively valuable agricultural product within the Texas commercial produce market, and the
reputation of the peaches from the surrounding area makes peach harvesting season a major
annual tourist attraction for the city and its tourist-oriented businesses. ■'"•^

•^"-' Fredericksburg, Texas, Fredericksburg Comprehensive Plan, 1985 (Austin, Texas:
Bovay Engineers, Inc., 1985), p. 45.

161

II. The Proliferation of Sprawl and the Problems It Causes

Unfortunately, the surrounding peach orchards and ranch lands are also becoming victim
to the attraction of the rural atmosphere they help give to Fredericksburg. More and more people
are moving into Fredericksburg because of the desirability of its quaint architecture and culture,
its beautiful setting, its rural appeal, the advantages of small town life, and its location within
commuting distance of the large metropolitan areas of Austin and San Antonio. As a result, the
real estate market is booming, and new residential subdivisions have been and continue to be laid
out all around the edges of the city.-'^ In fact, as of the end of August, 1995, there were
eight residential subdivisions being created to the north and the south of town. ^"-^

Six of these subdivisions are being built on and around the section of hills to the north
of town, because lots that offer views of the "burg" are in great demand and command the highest
asking prices. ■^^ Although these housing developments are allowing traditionally land-rich
and cash-poor families to finally earn a substantial amount of money from their land, they are
also denuding the hills, thereby destroying the historic landscape of the community and greatly
detracting from the beauty of the scenic vistas that attract tourists and settlers alike to
Fredericksburg. The other two subdivisions are being created on the south side of the city, in
an area that is prime orchard land.

The orchard and ranch lands that abut the major highways leading into Fredericksburg
are also being bought up by real estate developers. Fredericksburg's booming population and

^^ Karen Sue Oestreich, former member, Fredericksburg Historic Review Board; Office
Manager, Sunset Realtors, Fredericksburg, Texas, conversation with author, Fredericksburg,
Texas, 29 August 1995.

305

306

Ibid.

Ibid.

162

increasing tourism are leading to the creation of new commercial strip centers, megastores (a
Walmart superstore is located on prime orchard land south of the city), hotels and motels, and
fast food restaurants, all catering to the city's growing consumer market. Unfortunately, this
commercial sprawl is not being concentrated just along the highways leading to San Antonio and
Austin, but is taking away traditional orchard lands along all of Fredericksburg's arteries to
surrounding communities. Thus, every year, fewer and fewer peaches are grown to satisfy the
lucrative tourist trade, and more and more of the traditional historic landscape and a traditional
way of life and economic support are disappearmg.-^"'

The question is, how can Fredericksburg stop the sprawling destruction of the historic
and scenic landscape? One certainly cannot prohibit all growth and freeze Fredericksburg in time
in order to protect both its historic built and natural environment. To attempt to do so would not
only be antithetical to all for which modem historic preservation stands, it would also be an act
of political suicide for any public official or local organization.

Local people support the building of new strip centers, megastores, and restaurants,
because these businesses offer them more choices than what has been previously available or
services and products that were not previously available in the city or other nearby
communities.^^" The construction of houses and commercial buildings and the new
businesses that open up in the commercial buildings are viewed as a source of jobs for people in
the community as well. Furthermore, many citizens of Fredericksburg and the immediately
surrounding area also welcome the real estate boom, because it allows them to make more money
from the land than they could were it in continual use as orchards or ranch land for many years
to come. These facts, plus the fact that citizens are wary of government land regulation, mean

307

308

Ibid.

Ibid.

163

that attempts at growth management by the City of Fredericksburg would meet with stiff
opposition and charges of excessive government regulation of private property. These same
political considerations no doubt motivated the City Council to adopt the "Plaimed Growth Area"
recommended by Bovay Engineers, Inc., for channeling Fredericksburg's growth within the next
twenty years as a proposed boundary line that encompasses even more land area than that
contained by the entire area of the city's current extraterritorial jurisdiction.^"^

Although the citizens of Fredericksburg perceive many benefits from allowing new
residential subdivisions and new conmiercial centers to sprawl from the edges of the city in all
directions, they should also be made aware of some of the negative aspects that can and may
result from such unrestricted sprawl, besides the considerable threat to the tourist industry caused

Tin

by the continued loss of the historic landscape and scenic vistas previously mentioned.-^ ^"
One danger of the proliferation of buildings in all directions, feeding a booming market, is that
commercial space could be over built in the city. This could result in businesses moving from
the historic downtown commercial district into these newer buildings, because they offer more
modem conveniences than could some of the older buildings and are cheaper to lease because of
the owners' desperation to attract tenants to his/her newly constructed building in the glutted
commercial leasing space market.^' ^ Another danger is the threat that outlet malls will be

^^ Fredericksburg, Texas, Fredericksburg Comprehensive Plan, 1985 (Austin, Texas:
Bovay Engineers, Inc., 1985), p. 64. Note: Fredericksburg's current extraterritorial
jurisdiction extends one (1) mile in all directions from its city limits, in accordance with
Texas municipal extraterritorial jurisdiction regulations cited in Fredericksburg, Texas,
Fredericksburg Code of Ordinances, Chapter 9, Article 9.400, p. 9-10.

^^^ It is not the purpose of this paper to highlight all of the many social and economic
problems associated with sprawl in a community. Only those problems which affect the
historic built and natural environments of Fredericksburg are addressed in this chapter.

^^ ' Constance E. Beaumont, How Superstore Sprawl Can Harm Communities
(Washington, D.C.: The Preservation Press, National Trust for Historic Preservation, 1994),
pp. 4-5.

164

built that will take the focus of tourism away from Fredericksburg's quaint, historic central
business district with its surrounding historic residential neighborhood. Outlet malls in the
neighboring Adelsverein conununity of New Braunfels helped turn this city's historic downtown
into a ghost town, thereby driving locally owned and operated commercial enterprises out of
business and greatly reducing New Braunfels' potential income from heritage tourism.

Still another danger of allowing unregulated sprawl to proliferate along the edges of the
city is the economic cost to the City of Fredericksburg and its citizens of providing services and
infrastructure to these new commercial and residential subdivisions. Fredericksburg's subdivision
ordinance requires that the owners of subdivisions pay one half of the cost of improving perimeter
streets around the new subdivision-'^^ and for the construction of all water, sewer, and
drainage systems outside of the boundaries of the subdivision that will be required to provide the
subdivision city water and sewer services.-' ^^ However, there are other costs resulting from
integrating new subdivisions into the city's many services and the city's infrastructure that
developers of these subdivisions are not required to pay for and that the city will take a loss on
in providing these services initially before taxes on these new properties become available to
cover only the current costs of maintaining these services. These initial service and
infrastructural expansion costs include extending police and fire protection to the new subdivision,
increasing electrical generating and sewage treatment capacity, expanding existing roads to meet
the needs of increased traffic demands, and increasing city staff or staff hours to properly
administer these new areas that are to be annexed into the city.

^^2 Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 9, Article
9.900, Section 9.902(a)(2), p. 9-28.

313 ihid.. Section 9.902(e)(2), p. 9-29.

165

Unfortunately, Texas has not passed enabling legislation that would allow municipalities
to charge impact fees to owners of newly developed subdivisions in order to help mitigate the
initial costs of providing such services. Furthermore, the city's lack of realistic "planned growth
areas" designed to channel growth into one or two desired areas, the requirements that
subdivisions help the municipality pay for only some of the costs of providing services, and the
city and its citizens desire for growth as an economic boost to jobs and taxes in the city all work
together to help encourage Fredericksburg Planning and Zoning Commission to approve
subdivisions to be simultaneously developed all around the edges of the city. As a result, the
city's services and new infrastructural systems must be inefficiently spread to all areas of the city
to meet the demands of these new subdivisions at a huge initial expense rather than concentrated
economically and efficiently in one or two new areas of growth.

A concerted effort must be made to educate Fredericksburg's citizens about the threats
commercial sprawl poses to the city's thriving historic, tourist-oriented, central business district
(CBD) and to the stability of the city government's financial resources. Proponents of historic
preservation must point out to them what Fredericksburg would be like if many of its businesses
currently located in the CBD give up the appeal of an historic building to lure in tourist
customers in order to take advantage of cheaper rent in a strip center across from an outlet mall
which is increasingly attracting more tourists than Fredericksburg's historic resources. The very
nature of Fredericksburg, historically, economically, and culturally, would be altered to the
detriment of Fredericksburg's historic resources and the charm of its small town "quality of life,"
both of which its citizens, new and old, currently cherish so much.^^^ Furthermore, citizens

■^^^ Citizens cited the "history" of Fredericksburg and its "quality of life" as the fourth
and fifth "Best Things," respectively, which they liked about Fredericksburg in a visioning
workshop held to get ideas from the citizens for the formulation of the city's next
comprehensive plan. Hankamer Consulting, Inc., "Results of Visioning Workshop, October
17, 1995," (Hankamer Consulting, Austin, Texas, 1995, photocopy), p. 2.

166

must be made aware of the possibility that their taxes will have to be significantly increased in
order to help the city pay for initial city services and utilities to new subdivisions, all because of
an inefficient allocation of the city's limited resources resulting from a lack of growth
management planning. Only through education can the mythical idea that growth is always
beneficial be dispelled in the minds of the people of the city.

Admittedly, it is very difficult for Fredericksburg's city government itself to attempt to
prohibit uses of land that might be detrimental to the traditional, CBD-based commercial economy
because of Texas local government subdivision regulations.^ ^^ However, if the friends of
historic preservation and land conservation are able to successfully educate and then mobilize
many of the citizens of Fredericksburg to fight against the proliferation of sprawl around the city
and the building of outlet malls and megastores, then it may be possible to inhibit uncontrolled
sprawl in the area. The amendments to the city's comprehensive plan, zoning ordinance, and
subdivision ordinance recommended in this chapter are designed to give the city government
regulatory tools it can use to help protect Fredericksburg from some of the harmful effects
unregulated sprawl could have on the city's heritage and economy.

^^^ Texas' municipal subdivision enabling act prohibits city governments from regulating
the "use of any building or property for business, industrial, residential, or other purposes" in
their extraterritorial jurisdictions. West Publishing Company, Vernon's Texas Codes
Annotated: Local Government. Vol. 2., "1996 Cumulative Annual Pocket Part" (St. Paul,
MN: West Publishing Company, 1995), Tide 7, Chapter 212, Subchapter A, § 212.003, as
amended, pp. 179-180.

167

T*|-

m

m. A Recommended Long Term Solution to the Problem of Sprawl and the Loss of the
Historic Scenic and Agricultural Landscape

One long term solution to the costs of uninhibited sprawl to the city's revenues and
historic natural resources is the development of a municipal growth phasing program. Such a
program would require, or at least strongly encourage, subdivision creation to take place in one
or two designated areas along the edges of the city where the city services and infrastructural
improvements necessary for new developments, such as a new volunteer fire department
substation, newly expanded roads, and increased electrical service, could be most economically
and efficiently concentrated. These designated areas would also be determined by the locations
where subdivision development would do the least amount of damage to the scenic hills
surrounding the city, thereby helping to protect Fredericksburg's historic landscape. The growth
area determined by the growth phasing program would also have the advantage of limiting
development on orchard and ranch land in only one or two areas of the city, rather than
sanctioning the current market practice of development on orchard and ranch lands piecemeal
around the city.

The growth phasing program has a good chance at limiting the proliferation of sprawl
within the city's extraterritorial jurisdiction (ETJ) and channeling development into the one or
two desired growth areas because of the advantage to developers of connecting to the city's
services and infi-astructure, and particularly of connecting to city water and sewer services. The
cost of drilling through bedrock in order to find a water well for drinking and other uses and to
establish a septic system, combined with the added difficulty of finding water reserves because
of the lowering water table of the creek valley in which Fredericksburg is situated, makes drilling
for water, establishing septic systems, and laying water, sewer, and storm drain pipes prohibitive
to developers. It would be much easier for them to be able to connect to Fredericksburg's water

168

and sewer systems and then only have to pay the cost of installing the water, sewer, and storm
drain pipes throughout their development or subdivision. Consequently, most developers will be
inclined to buy land within the designated growth phasing areas of the city's ETJ in order to be
able to easily acquire city services and thereby keep the costs of their desired development or
subdivision to a minimum.

The development of such a growth phasing program could be started right away as a part
of Hankamer Consulting, Incorporated's, development of Fredericksburg's new comprehensive
plan. Various historic preservation and landscape consultants could be hired to map scenic areas
around the city, and city planning experts could be consulted to determine the best areas to
channel new city growth from a municipal services and infrastructural perspective. The
boundaries of the growth phasing program could then be drawn and included within the
comprehensive plan as part of Fredericksburg's official policy toward city growth and the
development of subdivisions desiring to eventually become incorporated into the city limits and/or
receive city services. Furthermore, the Purpose and Intent clause of the city's subdivision
ordinance could be amended to state that the Planning and Zoning Commission's decisions on
approval of subdivision creation shall be guided by the growth phasing program boundaries
established in the comprehensive plan.^'"

Build-out maps showing the potential maximum development of Fredericksburg's
extraterritorial jurisdiction under current subdivision authorization practices could be created and
facts, figures, and examples of how uninhibited sprawl can drain city coffers, hurt the tourist
industry, and lead to the decline of the downtown commercial area can be formulated by a
consulting firm to help make the citizens aware of the critical need to adopt some sort of growth
phasing program for the city. However, given the current beliefs of the citizens of

31^ Ibid., Article 9.100, p. 9-3.

169

-1*")'

Fredericksburg, the economic benefits to landowners allowed to sell their lands to developers at
great profit, and the political climate against private property regulation mentioned in the previous
paragraphs, it is highly unlikely that such a necessary growth phasing program could be adopted
relatively soon as part of the city's new comprehensive plan.

Such a program will probably receive public favor only after the real estate boom has
died down, the memory of the recent fights with national and state government agencies over
property rights has somewhat faded in people's minds, and the citizens of Fredericksburg start
to feel the increased burden of taxation necessary to pay for the initial provision of city services
and inirastructure to newly developed subdivision. Members of the Historic Review Board, its
allies dedicated to historic preservation and scenic land conservation, and citizens concerned about
increasing taxation should, however, join forces to begin to not only educate the citizens of
Fredericksburg about the harmful effects of sprawl, but also about the vital need for a growth
phasing program as a way to mitigate the sprawl's effects. In this way, a coalition of dedicated
citizens can be organized that both will work toward changing people's attitudes and will be ready
to spring into action when popular sentiment begins to swing against continued subdivision
development. Once the many detrimental aspects of sprawl begin to become apparent to more
people through events in the city and/or educational efforts, the educated citizenry can then be
called upon to support City Council authorization to hire a consulting firm to develop a growth
phasing program for adoption by the city. While the long term solution of developing a growth
phasing program for Fredericksburg offers hope in the future to limit the harmfiil effects of
sprawl on the some of the scenic hills and the traditional orchard operations surrounding the city,
more inmiediate solutions must be found to help mitigate the affects of currently planned
development on the area's historic landscape.

170

TV. Texas Law's Limit Otherwise Viable Short Term Solutions to Protecting Area
Agricultural Land and Scenic Hills

Once again it must be emphasized that developing solutions to the problems caused by
sprawl are extremely difficult given die State of Texas' prohibition against municipalities
extending their municipal zoning restrictions on use and spatial development of lots (height, bulk,
size, or number of units) into their extraterritorial jurisdictions^ ^^ and the complete absence

31 "7 Vernon's Texas Codes Annotated: Local Government. Vol. 2., "1996 Cumulative
Annual Pocket Part," Tide 7, Chapter 212, Subchapter A, Section 212.003, as amended (St.
Paul, MN: West Publishing Company, 1995), pp. 179-180. It states:

§ 212.003. Extension of Rules to Extraterritorial Jurisdiction.

(a) The governing body of a municipality by ordinance may extend to the extraterritorial
jurisdiction of the municipality the application of municipal ordinances adopted under
§212.002 [Rules for the creation and adoption of zoning ordinances and what may be included
in these zoning ordinances] and other municipal ordinances relating to access to public roads.
However, unless otherwise stated by law, in its extraterritorial jurisdiction a municipality shall
not regulate:

(1) the use of any building or property for business, industrial, residential, or
other purposes;

(2) the bulk, height, or number of buildings constructed on a particular tract
of land;

(3) the size of a building that can be constructed on a particular tract of land,
including without limitation any restriction on the ratio of building floor space
to the land square footage; or

(4) the number of residential units that can be built per acre of land.

(b) A fine or criminal penalty prescribed by the ordinance does not apply to a violation in the
extraterritorial jurisdiction.

(c) The municipality is entitled to appropriate injunctive relief in district court to enjoin a
violation of municipal ordinances or codes applicable in the extraterritorial jurisdiction.

171

of county zoning authority in Texas except by special enabling legislation.^ ^° Counties are
given the authority to regulate some aspects of subdivision development under Texas law, but
only in those areas outside of the limits of both municipal corporate and extraterritorial
jurisdictions.^ ^^ Thus, the complete lack of zoning authority in Fredericksburg's
extraterritorial jurisdiction (ETJ) prohibits the use of Transferable Development Rights (TDRs)
as a financial incentive to landowners to keep their orchards or hills free from development, since
development rights by their nature are created through zoning restrictions.-'^" Area-based
allowance agricultural zoning, which requires that owners of agricultural land may only develop
one dwelling unit per twenty to forty acres of land (the number to be decided by the state
legislature) and must concentrate all dwelling units on small lots (approximately one to three
acres, depending on the zoning ordinance), obviously also cannot be used in the ETJ.-"''

It should be noted, however, that the Texas Tax Code requires the appraisal of recognized
agricultural lands at a value "based on the land's capacity to produce crops, livestock, or timber,
instead of its value on the real estate market. "^^^ This provision is designed to protect
agricultural producers from having to sell their off their lands as commercial and residential
subdivisions begin to be created around the land, because they cannot afford to pay taxes on their

^^^ Vernon's Texas Codes Annotated: Local Government. Vol. 2., Title 7, Subtitle B,
Chapter 231, Subchapter A (St. Paul, MN: West Publishing Company, 1988), pp. 515-543.

3^^ Ibid., Chapter 232, Section 232.001, pp. 544-547.

^^^ Samuel N. Stokes, A. Elizabeth Watson, Genevieve P. Keller, and J. Timothy Keller.
Saving America's Countryside: A Guide to Rural Conservation (Baltimore, MD: The Johns
Hopkins University Press, 1989),p. 151.

321 Ibid., p. 137-138.

322 Comptroller of Public Accounts for the State of Texas, Property Tax Division, Texas
Property Taxes, 1995: Taxpayer's Rights, Remedies, and Responsibilities, Publication #96-
295 (Austin, Texas, 1995), p. 3.

172

agricultural land once it is appraised at the value of its higher and best development usage. A
rollback tax provision is also in place within the Texas Tax Code for agricultural lands to
penalize all owners who change the use of their lands to a non-agricultural use, thereby further
encouraging lands to remain in agricultural use in the face of surrounding development
pressures. ^^ Finally, like many states, Texas has a right-to-farm law, which seeks to protect
owners of recognized agricultural lands from having their agricultural operations prohibited
because of nuisance suits brought upon them by nonfarm neighbors objecting to the odors, noise,
dust, chemicals, and other unpleasant aspects of agricultural usage that they find offensive. -^"^
Accordingly, owners of agricultural lands around Fredericksburg are not being forced to
sell their lands to developers because of increased taxation or the fear of nuisance suits against
them. They are simply being offered substantial profits for the sale of their land to developers -
profits that are hard for many of these relatively poor peach growers and ranchers to turn down
given the general bleak economic future of agricultural production in this country. Furthermore,
developers are not being deterred by the rollback taxes they must pay in order to convert the use
of agricultural lands to residential and commercial uses. The solution to Fredericksburg's
problem of slowing the loss of the traditional ranch and orchard lands and the loss of the scenic
views of the natural hillsides in the surrounding area does not, therefore, reside in granting
preferential tax treatment and legal protection to agricultural land owners or in zoning solutions.
Instead, the most immediate solutions to the problem until a growth phasing program can be

^^^ Ibid., pp. 3-4. Note: "The rollback tax is the difference between the taxes you paid
on your land's agricultural value and the taxes you would have paid if the land had been taxed
on its higher market value. Furthermore, seven percent interest is charged for each year from
the date that the taxes would have been due," p. 3.

^^'^ Vernon's Texas Codes Annotated: Agriculture. Vol. 2., Title 8, Chapter 251 (St.
Paul, MN: West Publishing Company, 1992), pp. 463-466.

173

adopted seem to lie in the innovative use and encouragement of cluster zoning-type policies and
the encouragement of landowners to establish conservation easements on their properties.

174

V. Amendments to Citv PUD Regulations to Preserve the Hills

Cluster zoning allows subdivision developers to cluster some of the residential units in
a subdivision on smaller lots than those required by zoning for minimum lot size, as long as the
average density of the residential development is kept above the required minimum lot size by
the presence of larger than average lot sizes. The clustering of residential units in a development
enables the developer to build fewer streets and shorter utility lines. More importantly, it gives
the developer flexibility in that he/she can move development away from the steeper slopes and
scenic beauty of any hills that might be on the property. ^^^ Finally, cluster zoning does not
need enabling legislation from the state government in order to be adopted by municipalities
granted zoning authority under the Texas Local Government Code.^^"

Proponents of historic and scenic landscape conservation could push the City Council and
Gillespie County Commissioners to authorize the employment of various historic preservation and
landscape consultants to study and map all the hills in the area around the city. The hills that
have not yet been or have only partially been developed may then be documented as an important
component of the historic and scenic landscape and designated as deserving of protection from
fiiture development. Hopefully, these proponent groups could receive grants from various
conservation-oriented non-profit organizations at the state and national level and perhaps even
grants from the Texas Parks and Wildlife Department to help pay for the necessary study and
mapping. Once the study is completed, the proponents of scenic and historic landscape protection

^^^ Samuel N. Stokes, A. Elizabeth Watson, Genevieve P. Keller, and J. Timothy Keller,
Saving America's Countryside: A Guide to Rural Conservation (Baltimore, MD: The Johns
Hopkins University Press, 1989), pp. 144-145.

^^^ Imogen R. Cooper, AICP, Senior Planner, Dqjartment of Planning, Historic
Preservation, and Urban Design Division, City of San Antonio, conversation with author, San
Antonio, Texas, 8 January 1996.

175

nff.

could call upon the citizens they have educated about the need for sprawl control to lobby the
City Council to insert a hill protection provision, based on the findings of the study, in the
section authorizing Planned Unit Development Zones (PUD) in the City of Fredericksburg Zoning
Ordinance. "^

PUDs are actually variations of clustering that allow local governments to require large
scale developers (usually 1(X) acres or more) to take certain desirable or important natural features
into account when planning the lands development.''^^ The proposed provision amending
Fredericksburg's PUD regulations would require that developers protect from development any
hills on their lands that are designated according to the study conducted. It would further require
that the developers insure that the hills will be protected from future development as well by
means of a conservation easement (to be explained in a later section of this chapter), by deeding
the land(s) to a community organization or homeowner's association with a restrictive covenant
against development, or by some other legal means. However, the provision would allow
developers to use cluster zoning to accomplish the hill protection requirement, which in turn will
enable developers to eliminate few if any units from the overall number of commercial and/or
residential units that could legally be placed upon the hills under normal zoning regulations.

One way to avoid charges of spot zoning through the prohibition of development of the
hills is to first include within the city's comprehensive plan declarations of the importance of the
surrounding hills to the city's quality of life and to the vital tourist industry and of the intent of
the city policy to actively work toward the preservation of these hills as significant components

-'^' Fredericksburg, Texas, City of Fredericksburg Zoning Ordinance, 1986, Revised
1988 (Austin, Texas: Bovay Engineers, Inc., 1986), Subsection 2.800, pp. 2-37 - 2-40.

^^^ Samuel N. Stokes, A. Elizabeth Watson, Genevieve P. Keller, and J. Timothy Keller.
Saving America's Countryside: A Guide to Rural Conservation (Baltimore, MD: The Johns
Hopkins University Press, 1989), p. 146.

176

of the historic and scenic landscape. All the hills within the city limits could then be designated
as historic landmarks under subsections 12.205. 1(a), (h), and (i) of the proposed amended historic
preservation ordinance, in addition to the designation of these hills as scenic in the study
conducted by consultants to determine which hills should be preserved. ■'^^ The inclusion of
the statements in the comprehensive plan and the designation of these hills as historic, combined
with the developers ability to use cluster zoning methods of development to avoid the loss of
many potential units, should protect the city against charges of spot zoning, since all of these
things should hopefully enable the city to be able satisfy the criteria that are used by courts to
determine if certain zoning prohibitions are unconstitutional.^'^^

Not only does the proposed amendment to city PUD requirements avoid the potential for
judicial decisions of spot zoning, it also should hopefully be acceptable to local residents' strong

•'^^ Subsection 12.205.1(a) allows for the designation of sites that "Possesses value as a
visible example or reminder of the history or cultural heritage of the community, county,
state, or nation;" subsection 12.205.1(h) allows for the designation of a site that "Is a unique
location or possesses singular physical characteristics representing an established and familiar
visual feature of a neighborhood, conununity, or the city;" and subsection 12.205.1(1) enables
the City Council to designate any resource, "whether natural or man-made, that greatly
contributes to the character or image of a defined neighborhood or community area. " For
further context, see Appendix B.

•^-'" The criteria used by courts to determine whether zoning regulations fall into the
category of unconstitutional and invalid spot zoning are as follows: (1) The size and number
of parcels allowed [The developer's ability to utilize cluster zoning methods to allow some
lots to be larger than minimum lot requirements under the City of Fredericksburg Zoning
Ordinance and to encompass some of the protected area of the hill should help the city to
satisfy this criterion.]; (2) Usage compatibility with surrounding uses [Here again the
developer's ability to lay out lots that are larger than minimum lot requirements under the
City of Fredericksburg Zoning Ordinance and to encompass some of the protected area of the
hill should help the city to satisfy this criterion.]; (3) Demonstrated public benefit [The
inclusion of the statements in the comprehensive plan and the designation of the hills as
historic landmarks under the proposed amended Fredericksburg historic preservation
ordinance should help the city meet this criterion]; and (4) Compliance with the
comprehensive plan [The declarations of the importance of the scenic hills to the city and of
the city's policy to protect the hills from development should satisfy this final criterion].
Marya Morris, Innovative Tools for Historic Preservation (Washington, D.C.: National Trust
for Historic Preservation and American Planning Association, 1992), p. 27.

177

beliefs against government regulation of private property. As alluded to in a previously
paragraph, PUDs by their very nature are designed to allow government to regulate the
development of large tracts of land, so as "to encourage more efficient uses of land, while still
providing proper arrangement of uses and structures... to insure the fulfillment of desired
community needs... "^•'^ Since the City Council succeeded in adopting a PUD section in the
zoning ordinance at some earlier date, and since the protection of the hills can be demonstrated
to be an economic and public welfare need of the citizens of the city, it is hoped that a substantial
number of citizens will not object to the adoption of the provision prohibiting development on
designated hills into the city's PUD regulations.

Furthermore, allowing developers the ability to develop most of the units the hUls could
support under normal zoning regulations with cluster zoning methods and thereby reap much of
the potential profits off the development should help quell charges of excessive government
regulation of private property. Finally, the fact that very few hills which could be designated as
scenic or historic lie within the city's current municipal limits (save for Cross Mountain City
Park) should help somewhat diminish citizen's concerns over the immediate affects of the
amendment of the PUD section to their lands located in the city limits. However, the added
provision to the PUD requirements will allow the city to protect hills designated by the
commissioned study or the Historic Review Board from development once these hills are
incorporated into the city's limits through annexation.

^^^ Fredericksburg, Texas, City of Fredericksburg Zoning Ordinance, 1986, Revised
1988 (Austin, Texas: Bovay Engineers, Inc., 1986) subsection 2.800 ("PUD PLANNED
UNIT DEVELOPMENT - INTENT), p. 2-37.

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VI. Amendments to City Subdivision Ordinance to Encourage Hill Preservation

The very fact that many of the hills that surround Fredericksburg proper lie outside of
the city's limits means that the proposed amendment to the PUD regulations will not offer
protection against the development of these hills, since the city is prohibited by law from
exercising most of its zoning regulations within its ETJ limits. The city is, however, given the
ability to promote and influence the protection of the important scenic hills through the use of the
power granted the Planning and Zoning Commission to approve or approve with conditions the
preliminary and final subdivision plats for subdivisions located in the city's ETJ.-^^^ More
importantly, the Planning and Zoning Commission is granted the authority to approve the zoning
classifications developers wish to create within any subdivisions in the ETJ. ^^ Thus, along
with the amendments promoting the preservation of the scenic hills made to the city's
comprehensive plan mentioned previously, the City Council could be motivated by public
pressure to amend the city subdivision ordinance in several places, so that the ordinance strongly
encourages developers to leave hills which have been designated scenic by the commissioned
study undeveloped through cluster zoning-type methods of development.

Specifically, the subdivision ordinance's Article 9. 100, the article that states the purpose
and intent of the ordinance, could be amended to include a specific reference to the objective of
preserving and maintaining both the historic landscape of the valley and the scenic vistas provided
by the hills surrounding Fredericksburg by keeping the hills free from development.'^^

-JOT

•^•^'' Fredericksburg, Texas, Fredericksburg Code of Ordinances, Chapter 9, Article
9.700, Section 9.701 and Section 9.702, respectively, p. 9-11 - 9-14.

3^3 Ibid. Chapter 9, Article 9.800, subsection 9.803(c), p. 9-20.

^^^Ibid., Chapter 9, p. 9-3.

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Subsection 9.803(f), which calls for the preservation of natural features in subdivision
development, could also be amended to make specific mention of hills designated by the city's
commissioned study as among the natural features that "shall be preserved in the design of the
subdivision. "^^^ These two specific amendments, along with the powers given the Plarming
and Zoning Commission concerning the approval of subdivision development in the city's ETJ
listed in the previous paragraph, would allow the Planning and Zoning Commission to influence
subdivision developers to conform to the city's stated policy to preserve the scenic hills that
surround it. Of course, the best and most obvious method for developers to utilize in
accomplishing this stated city goal is the use of something similar to cluster zoning with a
conservation easement or some other form of protection to insure that the hills are never
developed in the future.

Three very important issues stand in the way of realizing the city's goal to preserve the
natural appearance of the hills located in its ETJ from development through the use of the
amendments described to the city's subdivision ordinance. The first is the Planning and Zoning
Commission's unillustrious record in attempting to accomplish the goal, "To maintain and
preserve scenic vistas" that is already written as part of the stated purpose and intent of the
subdivision ordinance. •^^^ A couple of hills to the north of the city but within the ETJ are
already partially covered with houses in a development known as "Northwood Hills. "^^
This obvious lack of success could be caused by a lack of understanding on the part of the

^^^ Ibid., Chapter 9, Article 9.800, p. 9-21. Note: Subsection 9.803(f) currently reads,
"Preservation of natural features." All natural features such as large trees, watercourses,
historical spots, and similar community assets, shall be preserved in the design of the
subdivision."

33^ Ibid., Chapter 9, Article 9.100, subsection (f), p. 9-3.

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Based upon the author's personal investigations of the subdivisions surrounding the

city limits of Fredericksburg conducted on several nonconsecutive days in August, 1995.

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members of the Commission of the important role the scenic vistas of the hills from the city play
in the adding to the quality of life and in attracting tourists to the city. Such a lack of
understanding could be corrected through education and hopefully would be corrected before the
amendments are added to the subdivision ordinance.

The second issue that poses a threat to the realization of preserving the scenic hills
offered by the amendments to the subdivision ordinance is the fact that hillside land commands
the highest real estate prices because of the views they offer of the surrounding land.
Consequently, the owners of land in the ETJ that contain hills designated as scenic by the city-
conmiissioned study will whole-heartedly fight the proposed amendments to the subdivision
ordinance, and they will receive much sympathy from their friends and fellow citizens in
Fredericksburg. This potential fight could also jeopardize the push to amend the PUD regulations
to include provisions for the protection of scenic hills in the city limits, especially since the push
for the adoption of amendments to both the PUD regulations and the subdivision ordinance would
probably occur simultaneously. Owners of land that contains scenic hills and that is adjacent or
near to the current city limits will realize that their land would not only be affected by the
subdivision ordinance amendments, but could also be affected by the PUD regulations if and
when the city annexes their land into the city's corporate limits. Thus, these landowners may
also join the fight against the proposed amendments to the city's PUD regulations while fighting
to deny the amendments to the city's subdivision ordinance.

Furthermore, even if the proposed amendments to the subdivision ordinance are adopted
by the City Council, the developers of subdivisions containing hills designated by the
commissioned study would lobby hard to get the Planning and Zoning Conmiission to accept the
zoning classifications for the subdivisions these developers propose for approval even though the
developers are not proposing to protect the hills from development in any way. Owners could

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even threaten lawsuits against the City of Fredericksburg if the Planning and Zoning Commission
persists in trying to pressure or persuade the developers to protect the hills from development.
Were such lawsuits threatened, it is likely that the Plaiming and Zoning Commission would back
down. This is because of the very shaky legal ground the Commission would be on under the
powers granted municipalities in Texas law in trying to coax an owner of land in the ETJ to use
his/her land in a certain way or to only build a certain number of units per acre of land by
utilizing the cluster zoning method of preserving the hills.

This then is the third and most important issue standing in the way of protecting the hills
in Fredericksburg's ETJ from development through the proposed amendments to the subdivision
ordinance. The developers of subdivisions in the city limits would certainly have to conform to
the requirements of leaving the hills undeveloped, just as would developers of PUDs. However,
the inability of municipalities to regulate the use of property within their ETJs according to Texas
Local Government Code means that, even though the Planning and Zoning Commission has the
authority to approve the zoning classifications to be used in an ETJ subdivision as well as the
initial and final subdivision plat for such a subdivision, the Commission would not find it legally
prudent to try and force the issue of preserving the scenic hills within the development. ^^°

As was said from the beginning of this proposal, the amendments to the subdivision
ordinance would only give the Planning and Zoning Commission the ability to strongly encourage
and pressure developers to preserve thek scenic hills. The incentive given to the developers to
do so would be to get in the good graces of the Commission in light of their authority to approve,
deny, or approve with conditions the proposed zoning classifications and the initial and final
subdivision plats. Thus, the Commission really has no means to enforce the preservation of the

■'■^° Vernon's Texas Codes Annotated: Local Government. Vol. 2., "1996 Cumulative
Annual Pocket Part," Title 7, Chapter 212, Subchapter A, Section 212.003, as amended (St.
Paul, MN: West Publishing Company, 1995), pp. 179-180.

182

hills or the preservation of the natural features located in the ETJ already written as goals of the
ordinance. To deny zoning classification approval or initial or final plat approval on the basis
of anything resembling a failure to use the land in a manner that consciously protected these
special features would be to court legal disaster. This lack of enforcement power is probably the
more dominant reason why the Commission was unsuccessful in saving the hills in the ETJ that
have already been heavily built upon, rather than a lack of Commission members' understanding
of the importance of preserving such sources of scenic vistas and such splendid natural features.
The high level of opposition that would probably be encountered in trying to implement
the various aspects of cluster zoning methods within the PUD regulations and subdivision
ordinance and the relative inability of these regulations, if amended, to really make a difference
in protecting the surrounding hills from development would seem to discourage proponents of
historic and natural landscape preservation from even trying to amend the ordinance and
regulations. However, as with the fight to adopt an amended preservation ordinance with
stronger regulations, the fight to save the scenic hills from development must begin now. The
huge development pressures that currently threaten both the historic and natural environments in
and around the city, the fact that two nearby scenic hills are now covered with houses and roads,
and the potential for much greater development pressures as Fredericksburg continues to grow
all force the hand of local historic and natural landscape preservationists to attempt to save
Fredericksburg's historic landscape. Even if the PUD regulation and subdivision ordinance
amendments will result in few if any hills actually being saved from residential development, the
awareness of the problem in citizens' minds generated by the education campaigns and the fight
to secure these amendments will ultimately help the people of Fredericksburg realize the danger
involved in continued development of the hills. This in turn will hopefully hasten the ability of
the proponents of historic and natural landscape preservation to gain enough public support to

183

successfully lobby the City Council to authorize the development of a growth phasing plan as a
long-term method of preserving both the scenic hills and much of the agricultural land that
surrounds the city.

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VII. Prohibitions on the Development of Steep Hillsides

A possible alternative to a provision banning the development of all hills being added to
the city's PUD regulations and language strongly discouraging the development of hills being
placed in Fredericksburg's subdivision ordinance is the formulation of regulations that base the
amount of development allowed on a hill on the steepness of the slope of the hillside. Such
regulations are included in the zoning ordinances of municipalities in other states, such as in
certain townships in Pennsylvania, in order to help prevent the erosion of shallow soils and
maintain the scenic landscape. ^^ These regulations enlarge the minimum size required for
each lot in a subdivision of land in relation to the steepness of the slope on which the lot is
located. For example, slopes between eight and fifteen degrees require the minimum size of a
lot designated for residential development to be fifty percent larger than a municipality's
established minimum lot size for areas zoned for residential development in the more level parts
of the municipality, while the minimum size of a lot on a slope greater than fifteen degrees is
required to be one hundred percent larger than the standard minimum lot size normally required
for the lot's designated usage under the zoning ordinance.

The formulation and inclusion of minimum lot size requirements for various categories
of slope steepness as an additional regulation within Fredericksburg's PUD regulation and as
recommended guidelines for development in the city's subdivision ordinance is certainly possible.
These requirements could be legally based on the need to prevent soil erosion and on compliance
with the city's goal of maintaining the quality of life and the historic and scenic landscape of the
surrounding area through the protection of the hills from unsightly development, as stated in the

■'^^ John C. Keene, Professor of City and Regional Planning, Department of City and
Regional Planning, Graduate School of Fine Arts, University of Pennsylvania, telephone
conversation with author, 4 April 1996.

185

amendment to the city's comprehensive plan passed through the initiative of Fredericksburg's
proponents of historic and scenic landscape protection.-'^ Furthermore, the establishment
of such slope-based lot size dimensions as a component of both PUD regulations and the city's
zoning ordinance, as well as a guideline for development in Fredericksburg's subdivision
ordinance, would be much more acceptable to the regulation-wary citizens of the community as
a way to help preserve the historic and scenic character of the hills than would be the outright
ban on hillside development proposed for PUDs and recommended for subdivisions in the city's
ETJ.

In theory, therefore, lot size restrictions based on slope steepness would be a method of
regulation that could ftilfill the goal of protecting the hills from more dense and, thereby, more
unsightly forms of development and that would be a more acceptable alternative of hill protection
to the populace than the outright prohibition of development on the hills. However, in reality,
many of the small hills that surround Fredericksburg do not have steep enough slopes to justify
the establishment of such minimum lot size requirements on the land which composes these
hills. ■^'^^ Consequently, few hills within the city limits could be protected from extensive
development through the inclusion of such regulations in the city's zoning ordinance.

Furthermore, an increase in the minimum lot size required for development is no
guarantee that the few steeper hills where such regulations can be imposed will not be stripped
of all vegetation by the development allowed and/or dominated by the presence of several
relatively large houses, structures, thereby defeating the original intent of these regulations.

^'^ See the discussion of this amendment reconmiended for adoption in Part V of this
chapter.

^^^ This statement is based on the author's evaluations of the steepness of the slopes of
the hills he has traversed as a frequent hiker in the hills surrounding the city of
Fredericksburg. It is not based upon any topographical or geological study conducted on the
hills of the area.

186

Many hills surrounding the Hill Country communities of Boeme, Comfort, and Kerrville are now
dominated by the large houses of wealthy members of the community, which have intentionally
have been built to be seen for miles around as statements of the social and economic prominence
of their owners. ^^ The attractiveness of the scenic views offered from houses built on
hillsides, combined with the high value of the lots because of the vistas they allow, makes it
probable that many such lots will be bought by wealthier people, who may be inclined to build
relatively large and even dominating houses on the steeper hills located in or surrounding the city.
Many of the owners of newly built houses on these hills will also strip the area immediately
surrounding their houses of vegetation in order to allow for an uninhibited view of the
surrounding area, thereby further destroying the historic character and scenic qualities of the hills
upon which these houses have been built. Thus, slope-based restrictions on lot sizes are not an
adequate method of preserving the scenic beauty and historic nature of the hills surrounding
Fredericksburg, and they should only be considered for implementation as a method of limited
hill protection if and when the prohibitions against the development of hills fail to be included
within the city's PUD regulations and subdivision ordinance.

This statement is based on the author's experiences and observations as a frequent
visitor to the Hill Country and a former resident of San Antonio.

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VIII. The Encouragement of Conservation Easement Donation

Still another short term and long term solution to protecting not only some of the scenic
hills around the city, but also some of the traditional ranch and orchard lands in the area is the
active promotion of the granting of conservation easements by owners of land inside and outside
of Fredericksburg's ETJ. Under Texas law, landowners are given the ability to write a
conservation easement to cover historical, architectural, archaeological, cultural, natural, and
scenic values of real property and to donate the easement to a qualified state agency or 501(c)(3)
organization.^'*-' "The landowner decides which aspects [of the land] are to be protected from
development and to what degree and under what circumstances any development would ever be
allowed" and stipulates these restrictions in the easement before donating it to the govermnent
agency or nonprofit organization.^'*^ The restrictions placed on the land by the landowner
through the easement are entered into the deed for the property and remain in effect in perpetuity
as the title to the land is transferred to various owners, with enforcement powers residing in the
state agency or nonprofit organization that accepted the conservation easement. -^^

The donation of a conservation easement may qualify as a charitable tax deduction from
the IRS. Under the Texas Tax Code, landowners may also qualify for a reduction in property
taxes through a reappraisal by differential assessment of their land value once the land has been
restricted from certain kinds of development for one year under the terms established by the

■^^■^ Vernon's Texas Codes Annotated: Natural Resources. Vol. 2, Title 8, Chapter 183,
Sections 183.001 - 183.005 (St. Paul, MN: West Publishing Company, 1995), pp. 207-232.

■* Texas Parks and Wildlife Department, "Conservation Easement Act," educational
pamphlet (Austin, Texas: Texas Parks and Wildlife Department, 1994).

188

easement. •^'^ The decreased appraised value of the land due to the easement also helps
decrease estate taxes for the children who inherit the restricted land, thereby reducing the risk
that these children will have to sell their legacy in order to pay the taxes on it. The landowner
may also receive intrinsic satisfaction at helping to protect the scenic beauty or historic
resource(s) located on his/her property from development forever.

The ability of landowners to donate conservation easements under Texas law and to
possibly qualify for tax benefits under both national and state tax codes provides some hope that
local proponents of historic and natural landscape preservation will be able to persuade some
landowners in the surrounding area to protect their agricultural lands and the scenic hills within
it from future development through the use of easements. An education campaign could and
should be conducted by local landscape conservation proponents on the importance to the of
saving the hills and the historic agricultural landscape, as well as on the tax benefits that could
be enjoyed be a donating landowner and his/her heirs. The landscape conservationist's campaign
efforts could be greatly enhanced by working in conjunction with the Hill Country Foundation
(a 501(c)(3) land trust that works in the Texas Hill Country and accepts conservation
easements)^ and the Texas Parks and Wildlife Department (a state agency designated to

•''*" Texas State Property Tax Board, Guidelines for the Appraisal of Recreation, Park,
and Scenic Land (Austin, Texas: Texas State Property Tax Board, 1982), pp. 1-2. NOTE:
While this differential assessment of land value will make little if any difference on
agricultural land in the Fredericksburg area which already receives a differential assessment
because of its recognized agricultural usage, it could help landowners in the area whose land
may have fallen out of recognized agricultural usage.

^'* ' Danielle Milam, former president of the Bexar Land Trust of Bexar County, Texas,
which recently merged with the Hill Country Foundation, telephone conversation with author,
12 February 1996.

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receive conservation easements and the most active of state agencies in the promotion of the
conservation easement donation).-''*''

It is doubtful that such an education campaign and the intrinsic and limited financial
benefits will turn the hearts of some landowners away from seeking to sell their agricultural and
scenic land for a substantial profit. However, the strong sense of tradition in holding the land
of your forbearers common among the German families, which this author has experienced in his
own family and which he has learned is still felt by many other members of the German
community in the area, gives hope to the possibility that at least some traditional agricultural land
and scenic hills will be preserved through conservation easements as a result of the public
education campaign.^'^^ Owners desiring to keep their lands in their traditional ranching or
peach growing usage, as well as in the family, would probably welcome the idea of restricting
their land, including their hills, to such usage through an easement and receiving federal and state
tax benefits in the process once they were fully educated on the existence and process of
conservation easements. Furthermore, the campaign to encourage the donation of conservation
easements might also benefit from the fact that the protection granted the historic agricultural and
scenic landscapes through conservation easements is entirely voluntary, rather than required by
local government ordinance or other form or regulation. Thus, landowners who might object to
the passage of amendments protecting the scenic hills in Fredericksburg's PUD regulations and

^^^ Carolyn A. Scheffer, State Park Planner, Texas Parks and Wildlife Department,
conversation with author, Austin, Texas, 1 September 1995.

^^^ Karen Sue Oestreich, former member, Fredericksburg Historic Review Board; Office
Manager, Sunset Realtors, Fredericksburg, Texas, conversation with author, Fredericksburg,
Texas, 29 August 1995. As a realtor, Ms. Oestreich said she found many instances where
members of old German families had taken on jobs in Fredericksburg or the surrounding
community in order to keep their families' traditional agricultural lands and ways of life.
Their desires to keep traditional ways of life meant that they were unwilling to sell their lands
when approached by Sunset Realtors.

190

subdivision ordinance on the principle of objecting to government regulation of private land in
general might still donate a conservation easement that would protect the scenic hills on their
lands and/or the agriculture use of their properties.

As this chapter indicates, preserving the historic scenic and agricultural landscape around
the City of Fredericksburg will not be an easy task. However, it is an extremely necessary and
important task if Fredericksburg is to maintain much of its charm and attraction to tourists as well
as one of the important aspects of the quality of life in the city enjoyed by old timers and new
comers alike. The passage of the amendments to the city's PUD regulations and the subdivision
ordinance, if indeed they are passed, and the campaign to encourage area landowners to donate
conservation easements will not guarantee that many of the scenic hills and much of the orchard
and ranch lands that surround the city will be protected from development. However, the public
educational campaigns that must be carried out in the effort to secure passage of the proposed
amendments and promote the donation of conservation easements will make the citizens of
Fredericksburg and Gillespie County aware of the problem of sprawling development and the
dangers it poses to the city and county economy, social welfare, and traditional way of life.

It is hoped that through a continued educational campaign on the merits of sprawl
limitation and historic landscape protection, as well as on the need for a city growth phasing
program as an ultimate solution to the problems of sprawl, the citizens of the city and the county
will become convinced, especially in the face of rising taxes to help pay for the costs of
unfettered development, to support the creation of a city growth phasing program. Hopefully as
well, when the day comes for the city's authorization of the development of a growth phasing
program, there will still be undeveloped agricultural land and scenic hills within the city's ETJ
to protect and preserve.

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CHAPTER FIVE: RECOMMENDATIONS FOR FUTURE AMENDMENTS TO
THE CITY HISTORIC PRESERVATION ORDINANCE

Given the need to maintain a balance between the current political climate in
Fredericksburg against excessive government regulation and the current preservation regulation
needs of the community, the proposed amended historic preservation ordinance does not include
certain requirements, powers, and incentives that it will be necessary to include in the future.
It also does not include certain requirements that are currently necessary but that, if included,
would jeopardize the likelihood of the amended ordinance being adopted by the City Council.
These requirements and incentives are discussed in this chapter and recommended for inclusion
in the amended ordinance at a fiiture date. Some of these requirements and powers should be
implemented as soon as possible after the amended ordinance is permanently adopted after the
four year trial period. Other requirements and incentives can be formulated and adopted only
when the obvious need for them arises.

I. Additional Members of the Historic Review Board and Full Time Status for the City
Historic Preservation Officer

As Fredericksburg grows and as the number of resources designated as historic landmarks
and historic districts grows as well, it will become necessary to amend Sections 12.203 and
12.204 in order to cope with this growth and the increased responsibility this growth will place
upon the Historic Review Board (hereafter referred to as the "Board") and the City Historic
Preservation Officer (CHPO). Subsection 12.203(a) will need to be amended in order to increase
the number of members of the Board to nine and perhaps eventually more, in order to be sure

192

that the Board has enough members to meet its enlarged oversight responsibilities.^^^
Subsection 12.203(b) should also be amended to expand the professions and interests represented
among Board members. Some possible future additions could come in the form of a member
from the banking or accounting professions and/or a member who is a practicing attorney. It
would also be wise to require a licensed landscape architect to be a member of the Board, if there
are several licensed landscape architects who reside in Fredericksburg or Gillespie County who
would be willing to serve, in light of the need and the power of the Historic Review Board to
designate scenic hills in the city limits as historic landmarks.''^ ^ It should, however, be left
up to the Board to determine both at what time it should increase the number of its members and
which professions or interests it feels should be represented on the Board to help it do the best
job possible.

The official description of the workload required of the City Historic Preservation Officer
in Section 12.204 of the amended ordinance should also be changed from "part time " to "full
time" as the number of resources designated historic landmarks and historic districts increases
and as the CHPO's duties thereby also expand. The wording of Section 12.204 in the amended
ordinance requires that "the duties of the City Historic Preservation Officer shall control the time,
energy, and loyalty of the appointed individual above his/her duties as part time Building
Inspector. "•^■''' Accordingly, as the historic preservation-related work load of the person
appointed CHPO steadily increases, he/she will eventually have to devote full time toward the

■'^" See Appendix B. Note: The number of members of the Board should be kept at an
odd number, in order to prevent ties to occur when voting on various matters and decisions
takes place.

•'-'' See Subsections 12.205(l)(a) and (h) in Appendix B. Also see the section on
amending the city's PUD regulations in Chapter Seven.

^^^ See Appendix B.

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fulfillment of the duties of the CHPO. By doing so, he/she will be a Building Inspector in name
only. It would be in the best public interest if the Board recommends that the part time status
of the CHPO be amended to full time status within the ordinance, so that full public
accountability can be given for the work the person designated the CHPO actually does and for
the wages he/she receives for performing this work. Once again, however, it should be left to
the discretion of the Board to determine when such amendment to Section 12.204 needs to be
made.

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II. The Creation of Application Fees for Certificate of Appropriateness Applications

In order to help pay the full time salary of the CHPO and/or help fund the cost of historic
preservation regulation in Fredericksburg as the properties designated as historic continue to
increase. Section 12.205 should be amended to require fees be charged on all Certificate of
Appropriateness applications that must go before the Board for a hearing. This fee should not,
however, be charged to applications that are found by the CHPO to be solely for work involving
ordinary maintenance and repair under subsection 12.209.2(b) of the amended ordinance, in order
to not discourage the regular maintenance and repair of designated properties in any way.^^^
Fees for application and city services are quite common in municipalities all across the nation and
in Fredericksburg in particular. The City of Fredericksburg requires fees to be paid before site
plans are examined or construction permits are issued. It also charges filing fees for plats and
fees for garbage and trash pickup to name but a few.^^"* Thus, the concept of a city
regulatory board charging fees to review applications will not be a bold new concept or an
unacceptable idea when it is proposed for acceptance by the Board for adoption by the City
Council. Charging modest fees for certificate of appropriateness is also an acceptable practice
under THC guidelines for CLGs. The small city of Granbury, Texas, which recently received
CLG status with its new preservation ordinance, requires in its historic preservation ordinance
that such fees be collected to help defray the costs of the review and technical services rendered
during the application process. ^^^ The modest fees written into the Fredericksburg
preservation ordinance by amendment could be calculated by the Board and city officials,

^^^ See Appendix B.

^^^ Fredericksburg, Texas. Fredericksburg Code of Ordinances , Appendix A, Tee
Schedule," p. A-1.

-lec

-'-'-' Granbury, Texas, "City of Granbury Ordinance No. 94-483," Section 11.208, p.4.

195

according to the cost of the proposed work in the application, and then placed in a schedule of
fees in an appendix of the ordinance, just as Granbury's fees are established in a table of fees
within the ordinance. ■^^^

The Board might run into some opposition on the part of owners of designated properties,
who might argue that they would be unfairly forced to pay additional costs for the work that they
are already being forced to carry out for the public benefit according to the specifications of the
Board. However, the Board could counter such an argument with die fact that the certificate of
appropriateness process helps insure that owners' neighbors, at least in historic districts, must
also carry out high quality and preservation-sympathetic work, thereby helping to keep individual
owners' property values high. Thus, shouldn't these owners be willing to pay a small fee in
order to keep their property values high? Furthermore, the argument that other city departments
and boards already charge fees for the review services they render, as shown previously, can also
be used to blunt owners' opposition.

However, because of possible opposition by owners of designated property or owners of
property eligible for designation to fees being rendered for certificates of applications reviewed
by the Board, the amendment to require such fees should not be formulated and recommended
for adoption until the amended ordinance is in fact permanently adopted after its four year trial

OCT

period. •''" It would certainly be unwise to risk the ire of such owners at a time when their
support will be crucial in the fight to have the ordinance permanently adopted. On the other
hand, a large and active opposition to permanentiy adopting the ordinance might manifest itself
based on the mistaken belief diat the increased historic preservation regulation required by the

Ibid., Appendix B.," Procedures for Application for Granbury Historic Districts and
Historic Landmarks Certificate of Appropriateness," p. 9.

^^^ See Section 12.219 in Appendix B.

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preservation ordinance will mean a substantial increase in taxation to pay for the regulation. If
such a scenario occurs, then the Board may have to propose requiring such fees as a means of
placating this opposition and gaining further support for the ordinance's permanent adoption. It
is hoped that the Board could still quiet the opposition of the owners of designated or eligible
properties using the arguments given above, while making it seem to the citizens at large that
those whose properties are regulated will pay for a substantial part of the cost of supporting the
Board's enforcement of the amended preservation ordinance.

It should, of course, be left up to the Board to decide when to formulate and propose the
amendment to require fees for the review of all certificate of appropriateness applications based
upon the political climate of the city and the economic needs of the Board and its staff. These
fees should, though, eventually be adopted, since each fee could help directly pay for the cost of
processing each application for review, thereby somewhat reducing the Board's dependence on
allocations from city hotel/motel tax revenues^^^ and direct city budget appropriations. The
Board, in requesting approval for such an amendment from the City Council, must establish some
guaranteed mechanism that would allow the Board to retain all of the fees charged for applications
for its own expenses. Otherwise these fees for direct services will be lost to the city's general
coffers, where the money will be distributed piecemeal to other city boards and departments
through budget appropriations.

^^^ See Chapter Three.

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ni. Municipal Tax Incentives

Fredericksburg's economy is, as has often been stated in this thesis, booming at the
moment, and a big factor in this economic success is the city's growing tourist industry. Many
of the tourists who visit Fredericksburg are attracted to the city because of the quaintness and
charm of its Germanic and late nineteenth and early twentieth century architecture, and business
people know this. More and more business people are trying to take advantage of this attraction
by opening up "bed and breakfast" operations in historic houses and by sometimes even
constructing new buildings that mimic the Germanic architectural characteristics found among
some of the city's earliest structures in order to lure customers into their businesses. The
regulations and enforcement powers found in the amended ordinance are designed to insure that
business people or developers are prevented from building new structures in historic districts
which create a false sense of history and which prevent harmful additions, alterations, etc. to
designated residences being converted for use as bed and breakfast establishments.

However, no municipal tax incentives are included in the amended ordinance or exist in
the Fredericksburg tax code that encourage people to purchase and/or preserve endangered
designated or eligible historic buildings and structures within the city - buildings and structures
that are not in the most desirable of commercial locations perhaps - through historic
rehabilitations of these properties. The opportunity to qualify for federal historic rehabilitation
tax credits under Section 251 of the Tax Reform Act of 1986 does exist for some owners of
property within Fredericksburg's only current historic district, since the same area is also an
historic district listed in the National Register of Historic Places. However, only owners of
property that has been designated as historically significant in the historic district can qualify, and
only if they carry out rehabilitations for industrial, commercial, or rental residential uses that

198

meet The Secretary of the Interior's Standards for Rehabilitation as determined by the National
Park Service.-'^^ Owners of locally designated properties that are not on the National
Register cannot qualify for the federal tax credit unless their properties are at least in the initial
stages of application process for National Register status. "" Even owners of locally
designated noncommercial residences that are listed individually or are within a district on the
National Register cannot qualify at all for the federal tax credit unless they carry out
rehabilitations designed to change the use of their properties. Thus, there are significant gaps
in the incentives available at the federal level which might encourage people to purchase
endangered historic structures and buildings in Fredericksburg and preserve them through historic
rehabilitations. Municipal tax incentives for certified historic rehabilitations of both residential
and commercial properties designated as historic landmarks or designated as "contributing"
properties within an historic district would fill these gaps.

It is politically unfeasible to place such tax incentives in the amended ordinance itself at
this time, since the real estate market for historic properties is quite strong at this point in time.
It is doubtful that citizens or the City Council would agree that such municipal revenue-
diminishing tax incentives need to be created at the present moment. However, Fredericksburg's
current boom in tourism cannot last forever. Sooner or later, the Texas economy will slow, and
fewer tourists will be able to afford to spend their money in Fredericksburg. At that time, the
real estate market for historic properties will diminish, and some historic buildings and structures
that have been locally designated under the ordinance may become vacant as the tourist-oriented
businesses in them begin to fail. Other businesses will be looking to establish Uiemselves in more

^^^ United States Department of the Interior, Preservation Tax Incentives for Historic
Buildings. (Washington, D.C.: U.S. Department of the Interior, National Park Service,
1990), pp. 4-6.

360 Ihid., p. 5.

199

modem buildings, because of the extra amenities these structures offer and the loss of
attractiveness of being located within a quaint historic building.

At that time of future economic lull, Fredericksburg should take advantage of the Section
11 .24 of the Texas Tax Code and institute some form of property tax incentive to encourage the
preservation of designated structures and buildings through historic rehabilitations certified by
the CHPO and approved by the Board as being conducted according to The Secretary of the
Interior's Standards. ^^^ Since the state tax enabling legislation is quite open ended, it should
be left to the Board and the City Council to determine the method of the desired incentive(s) (e.g.
abatement or exemption) and the level of the incentive(s) (e.g. 100 percent ad valorem percent
property tax abatement for commercial properties like that offered by the City of San
Antonio^^^ or a freeze on assessed value). The Board and the Council should also determine
the length of time the incentive will be in effect (e.g. five years or ten years) and whether or not
the incentive will be transferable along with the titles to the designated properties.

These decisions should be made based upon a carefiil analysis and balance of how much
revenue the city believes it can afford to lose in the short term through the tax incentives versus
how much it thinks it can regain in the long term through a taxation on the increased values of

^^^ Section 1 1.24 ("Historic Sites") of the Texas Tax Code states: "The governing body
of a taxing unit by official action of the body adopted in the manner required by law for
official actions may exempt from taxation part or all of the assessed value of a structure and
the land necessary for access to and use of the structure, if the structure is:

(1) designated as a Recorded Texas Historic Landmark by the Texas Historical
Commission and by the governing body of the taxing unit; or

(2) designated as a historically significant site in need of tax relief to
encourage its preservation pursuant to an ordinance or other law adopted by
the governing body of the unit."

^"^ Susan G. Robinson, "The Effectiveness and Fiscal Impact of Tax Incentives for
Historic Preservation," Preservation Forum 2, no. 4 (Winter 1988-89): 11.

200

the properties the incentives helped motivate historic rehabilitation improvements upon. By
implementing San Antonio's policy of terminating the municipal tax incentive if the rehabilitated
property changes ownership, the city could perhaps even generate additional tax revenues sooner
than expected from certified rehabilitated properties. -^^-^ When certified rehabilitated property
changes ownership before the expiration of the tax benefit, the city would be able to reap the tax
revenue of the property assessed at full current market value earlier than anticipated, thereby
reducing the anticipated loss in tax revenues due to the incentives while still accomplishing the
preservation purpose of the incentive.

The specific requirements of and procedures for receiving the tax incentive could be
amended into the historic preservation ordinance itself, as is the case with the historic
preservation ordinance of the City of Fort Worth,^^ or it could be created in a new city
ordinance, as is done by the City of San Antonio.-'"^ However, no matter what the specific
incentives are or in which legal document they are placed, subsection 12.203(h) of the amended
ordinance (which lists the duties and functions of the Board) will need to be amended in order
to give the Board the authority to hold public meetings and review applications for the tax
incentives. ^^ An amendment such as that which follows should be sufficient:

363

Ibid.

^^ Fort Worth, Texas, "City of Fort Worth Historic Preservation Ordinance,"
Subdivision C, pp. 18-25.

•'"^ The City of San Antonio actually has two ordinances establishing and regulating
municipal historic preservation tax incentives, one for commercial properties and one for
residential properties. Susan G. Robinson, "The Effectiveness and Fiscal Impact of Tax
Incentives for Historic Preservation," Preservation Forum 2, no. 4 (Winter 1988-89): 11.

366 sgg Appendix B.

201

(#) Pursuant to [Section number within the historic preservation ordinance

or the name of the ordinance authorizing the tax incentive], to hold public

hearings and to review applications for ad valorem tax [the specific method

of incentive chosen] for residential and commercial buildings and structures
which are designated as historic landmarks or which are properties which have
been designated as "contributing" within historic districts and which are in need
of tax relief to encourage their preservation and rehabilitation; to certify the facts
governing eligibility, along with the Board's recommendation, to the Gillespie

Appraisal District, for approval or disapproval of the application for [the

specific method of incentive chosen]; upon receipt of a sworn statement of
completion, to authorize the City Historic Preservation Officer to investigate the
building or structure to determine whether the rehabilitation has been
substantially completed as required for certification and to prepare a report for
the Board and testify before the Board upon the findings of his/her investigation,
and to notify the Gillespie Appraisal District in writing upon the decision of the
Board as to whether the verification of the completion is favorable. "

The Board may also wish to amend Section 12.204 of the preservation ordinance so as to add the
duty of investigation of properties applying for the tax incentive to the list of duties and
responsibilities formally required of the City Historic Preservation Officer in this section. ■'"°
However, judging from historic preservation ordinances of the certified local governments of San
Antonio and Fort Worth, such an amendment is unnecessary. Chapter 1, Article 1.300.
Taxation., of the Fredericksburg Code of Ordinances will also have to be amended appropriately
in order to further legalize and allow implementation of the method and requirements of the
municipal tax incentive the Board and City Council agree to implement.

^^"^ Adaptation of S.A. Ord., Section 35-423, pp. 10-11.
^^^ See Appendix B.

202

IV. Full Application of Ordinance to Properties Nominated for Designation

Finally, the most important amendment to the ordinance, which should be adopted as soon
as possible after the permanent adoption of the ordinance as amended, is one that would extend
the protection offered designated properties under the certificate of appropriateness application
requirements to properties nominated for designation. This protection would go into effect once
the nominations for particular designation are received by the Board from the CHPO and the
return receipt from the certified mail letter sent to the owner of the property informing him/her
of the nomination is received by the CHPO's office. ■'^^ Such regulatory power over
nominated properties is not required in preservation ordinances designed to satisfy CLG
requirements.-"" However, it is granted to the historical commissions of the certified local
governments of San Antonio and Fort Worth under their respective ordmances.^^^

These two Texas cities have authorized the use of this regulatory power over nominated
properties with good reason. Under Section 12.209 of the proposed amended ordinance for
Fredericksburg, owners of property nominated for designation as historic landmarks or of
property within an area nominated as an historic district are free to conduct any form of work
on their property between the time they receive notice of the nomination of their property by
certified mail and the time when (and if) their property's nomination is confirmed by City
Council. Consequently, owners of nominated property who might object to the

nomination can intentionally carry out any demolitions, alterations, additions, etc. that they desire

^^^ See Section 12.206 in Appendix B.
370 T^C Section?, p. 11.

371

S.A. Ord., Section 35-431.2, p. 25, and Fort Worth, Texas, "City of Fort Worth

Historic Preservation Ordinance," Subdivision B, Section 4, p. 12, respectively.
^^^ See also Section 12.205 in Appendix B.

203

but that they know will not be allowed under the certificate of appropriateness guidelines in
subsection 12.209. 1 of the amended ordinance. These owners also might carry out detrimental
changes to their properties that they know will be likely to decrease their properties chances of
being accepted under the guidelines for designation in subsection 12.205. 1 . Thus, the nomination
notice sent to property owners may serve as a warning to objecting property owners to make all
the desired and character-altering changes to their nominated property they desire before the
property becomes regulated, and the amended ordinance as written is powerless to stop them from
doing so.

This is, of course, a somewhat cynical view of the owners of property eligible for
designation as historic in Fredericksburg. The danger of the destruction of the significant
character of nominated properties in this manner is real, however, especially in a city where some
citizens are quite hostile to government regulation of private property. Because of the current
presence of such powerful pro-property rights anti-government regulation feelings among the
citizens of the city, the regulatory powers over nominated properties are reluctantly left out of
the amended ordinance. It would not be wise to jeopardize the temporary passage of the entire
amended ordinance by the inclusion of a regulatory power that is not required for CLG status
under THC regulations. Thus, the amendments required to grant these crucial powers of
regulation should probably only be attempted by the Board once the amended ordinance is
permanently adopted by the City Council and/or the fervor over recent property rights battles in
the area is significantly diminished by the process of time.

In order to grant the Board these powers of regulatory review over properties nominated

for historic designation within die ordinance, subsection 12.203(h)(7) should be amended to read:

(7) Prepare specific design guidelines for the restoration, rehabilitation,
alteration, construction, reconstruction, or relocation of landmarks or buildings,
objects, sites, and structures within historic districts and of properties nominated

204

for landmark designation or within a specific geographic area nominated fo
designation as an historic district.

This amendment will require the Board to regulate the work done to properties nominated for
designation as one of its specific duties and functions.

Section 12.209 of the ordinance will also need to be amended as follows:

§ 12.209 Certiricates of Appropriateness

No person shall carry out any construction, reconstruction, alteration, installation, maintenance,
repair, restoration, rehabilitation, demolition, or relocation of any historic landmark, any property
nominated for nomination as an historic landmark, any property within a historic district, or any
property within a specific geographic area nominated for designation as an historic district, nor
shall any person make any material change in the light fixtures, signs, sidewalks, fences, steps,
paving, or other exterior elements visible from a public right-of-way which affect the appearance
and cohesiveness of any historic landmark, any property nominated for designation as an historic
landmark, any property within an historic district, or any property within a specific geographic
area nominated for designation as an historic distria, witiiout first obtaining a certificate of
appropriateness for any such action from the Historic Review Board or a permit to carry out work
deemed ordinary repair and maintenance, which excuses an applicant from obtaining a certificate
of appropriateness, from the City Historic Preservation Officer.-^ ''*

This amendment officially includes all properties nominated for designation as historic landmarks
and all properties in an area nominated for designation as an historic district subject to the
certificate of appropriateness regulatory process.

All references that mention the requirement for certificate of appropriateness applications
for any historic landmark or any property in an historic district in any of the subsections of
Section 12.209 should be similarly amended. ■^^ An additional subsection should also be

^ '^ The words in italics being those added to the subsection by amendment.

^'^ The words in italics being those added to the section by amendment.

^'•^ It would be too lengthy to include all the actual amendments which would need to be
written to implement this regulatory power within this chapter.

205

inserted by amendment between subsections 12.209.2 and 12.209.3 of the current amended
ordinance that contains specific requirements and regulations concerning the Board's ability to
regulate properties nominated for designation. This additional section should read as follows:

§ 12.209.3 Certificate of Appropriateness Applications Affecting Property Nominated by
the City Historic Preservation Officer for Designation

When a certificate of appropriateness application is made for work on a building, object, site, or
structure nominated by the City Historic Preservation Officer for designation by the Board, the
Planning and Zoning Commission, and City Council as an historic landmark or on a building,
object site, or structure located within a specific geographic area nominated by the City Historic
Preservation Officer for designation by the Board, the Planning and Zoning Commission, and
City Council, the applicant shall follow the application procedures outlined in subsection 12.209.2
of this ordinance until the final decision on the nomination of the property by the City Council.

The applicant may submit an application for a certificate of appropriateness for a proposed project
to the City Historic Preservation Officer prior to final City Council action on the designation
request of the property in question. The City Historic Preservation Officer shall make the
determination whether the proposed project strictly involves ordinary maintenance and repair and
shall either issue the permit for the ordinary maintenance and repair work intended upon approval
of the Chairman or Vice-chairman of the Board pursuant to subsection 12.209.2(b) of this
ordinance or shall submit the completed application for work not strictly involving ordinary
maintenance and repair to the Board review pursuant to subsection 12.209.2(c) of this ordinance.
The Board shall review the application using the criteria set forth in subsection 12.209.1 of this
ordinance. Should the Board deny the applicant's request, the applicant may appeal to the City
Council following the procedures outlined in subsection 12.209.2(h) of this ordinance.

The City Council may authorize the issuance of the certificate of appropriateness on a resource
nominated for designation by the City Historic Preservation Officer if, by formal resolution, it
deems the issuance of the certificate of appropriateness necessary for the public health, welfare,
or safety.

Should the City Council fail to designate the nominated building, object, site, or structure as an

historic landmark or the nominated area as an historic district, the Building Official shall issue

all relevant construction permits for the work requested provided all City Code requirements are
met.376

All of the amendments to the historic preservation ordinance recommended for eventual
adoption in this chapter may be formulated and adopted for the most part at the discretion of the

3"^^ Adaptation of S.A. Ord., Section 35-431.2, p. 25.

206

Board, given its evaluation of the needs of the city's significant historic, cultural, and
architectural resources at fiiture points in time. All, that is, except for the amendment to extend
the regulatory control of the ordinance over properties nominated for designation as historic . The
Board should make this amendment one of its top priorities if and when the temporary, amended
ordinance is permanently adopted by the City Council after its four year trial period, in order to
avoid any further risk of the loss of the significant characteristics of nominated property by the
actions of spiteful and unwilling owners of such property.

207

CHAPTER SIX: RECOMMENDATIONS CONCERNING THE CREATION OF
A GERMAN-TEXAS HILL COUNTRY HERITAGE AREA

L Explanation and Analysis of a "Heritage Area"

The creation of a heritage area to encompass the area of the Texas Hill Country settled
by the German immigrants of the Adelsverein and the German immigrants who followed them is
a method that could eventually be used to help both protect the historic, architectural, cultural,
and scenic resources of the encompassed area within the Hill Country and further promote
tourism and other economic opportunities in the area. Combining the efforts and resources of
the historical communities of New Braunfels, Boeme, Fredericksburg, Kerrville, Comfort,
Blanco, Johnson City, Bandera, and other smaller, primarily German-settled communities in the
Hill Country area of Texas could generate huge increases in tourism to these communities and
result in large economic windfalls for both historic sites and commercial businesses. Joint
educational and promotional campaigns and joint programming could even be coordinated between
the newly created heritage area and the LBJ Heartland Network, a small heritage area already in
the boundaries of the German-Texas Hill Country that concentrates on promoting the historic,
cultural, and natural resources of the area where President Lyndon Baines Johnson began and
ended his political career.^'' However, the potential damage that could be done to the
significant historic, cultural, architectural, agricultural, and scenic resources of the area in general
and to those of Fredericksburg in particular is significant if protective regulations for these
resources are not in place at the tune of the creation of the heritage area.

■"' Julia Jarrell, Executive Director, LBJ Heartland Network, conversation with author,
Stonewall, Texas, 4 January 1996.

208

A heritage area is defined as an area that shares "a distinctive sense of place unified by

large-scale resources" such as rivers and lakes, historic roads, or a common culture. '^ They

usually include both urban and rural settlements, and they most often are comprised of multiple

government jurisdictions.

Heritage areas encourage both the protection of environmental, scenic, [historic]
and cultural resources and sustainable development for tourism and other
economic opportunities. They educate residents and visitors about community
history, traditions, and the environment, and provide outdoor recreation.-' '^

Finally a heritage area is governed by a coalition of private and public sector entities that engage

in coordinating promotional and resource protection efforts on a regional management

scale

380

^ ° National Coalition for Heritage Areas, "Heritage Areas - Information Sheet,
(National Coalition for Heritage Areas, Washington, D.C., photocopy), p. 1.

209

II. The Benefits of the Creation of a Heritage Area for the German-Texas Hill Country

The area of the Texas Hill Country settled by the German immigrants in the mid-
nineteenth century certainly qualifies for the status of a heritage area. The region is united by
a common history, culture, and geography. Furthermore, New Braunfels, Bandera, Kerrville,
and Boeme, cities on the boundaries of the German-Texas HUl Country area, each offer
significant historic, scenic, and recreational resources that are already major attractions for
tourists to these cities. All of these cities are known throughout Texas for their nearby lakes
and/or the creeks, or rivers that run through them, all of which provide excellent boating, tubing,
and fishing opportunities. New Braunfels in particular is famous for its man-made water parks,
two rivers, and nearby Canyon Lake, all of which help make tourism an extremely important part
of the city's economy. All of these cities are also known for the scenic hills among which they
are nestled, and the wild flowers that cover these hills and valleys in the spring time. Finally,
with the exception of Kerrville, each one of these cities along the edges of the German-Texas Hill
Country successfully markets its historic and cultural resources, so that these resources also serve
as a vital aspect of the large, tourism-based part of their economies.

The fame of Fredericksburg's quaint Germanic atmosphere, its significant historic and
architectural resources, its peaches, and its scenic surroundings also have resulted in tourism
playing a major role in Fredericksburg's economy. However, unlike New Braunfels, Boeme, and
Kerrville, Fredericksburg is not located on a major interstate highway. Thus, Fredericksburg
and, more importantly, its neighboring historic communities in Gillespie County could definitely
increase the annual number of visitors to its historic sites and cultural events by joining in
promotional programs with the other major tourist cities in the German-Texas Hill Country and
siphoning off tourists from the other cities' interstate highway tourist traffic.

210

However, the goal of this coalition of Adelsverein communities into a heritage area would
not only be to promote tourism in general, but also to educate people on the importance of
various historic, cultural, and scenic/natural sites in the area and why they should be visited,
appreciated, and understood in their overall context by tourists and natives alike. By combining
the efforts and resources of preservation organizations, historic site museums, cultural event
sponsors, and local governments to concentrate on getting information out about all the historic,
cultural, architectural, and natural resources, a much larger audience can be reached, and an
emphasis on the historic development of the entire area, the context of these resources, can be
achieved. A series of heritage area tourist passes could even be initiated that would give people
admission into a series of historic sites, state parks, or architectural tours in and around
participating communities. This type of package deal would have the advantage of sharing the
wealth of tourism among many of the communities participating in the heritage area. It would
also give people an idea of the overall historic and cultural development, natural resource
development and general environment, or the architectural development of the entire area (a part
of the overall story of the German-Texas Hill Country), rather than having these people only
develop a limited idea of the area by visiting just one or two outlying cities. ■'°

It is hoped that these education campaigns on the existence and importance of the historic,
cultural, architectural, and scenic/natural resources of the area would also bring about a new
appreciation of the historic built and scenic/natural environments of their communities and the
Hill Country area as a whole among area citizens, so that they will join in supporting the efforts
to preserve these environments. The increases in tourism that should result in the heritage area's

^^^ Heritage passes have worked very successfully in England and are beginning to be
used in heritage areas in the United States with success according to William McCloud,
Assistant Director, Heritage Tourism Program, National Trust for Historic Preservation,
conversation with author, Washington, D.C., 9 August 1995.

211

education and marketing campaigns of the region's significant historic and architectural resources
will also hopeftilly make people desire to preserve certain endangered examples of these resources
as a way to market their tourist-oriented business.

It is also desired that the additional tourism generated by such education and marketing
campaigns will make local governments even more firmly commit to supporting and even
expanding local regulation of historic, cultural, and architectural resources and to encouraging
private efforts to promote the cause of preservation and heritage education. Large businesses
wishing to relocate or establish themselves in a new area might also be motivated to locate their
operations in the area because of the unique atmosphere and high quality of life offered by the
Hill Country and promoted by the efforts of the heritage area. Finally, it is hoped that many of
the smaller towns in the German-Texas Hill Country area, which are struggling to survive
economically as communities but which have significant historic and architectural resources (such
as Stonewall, Sisterdale, and Comfort), can receive great economic benefit from tourism as a
result of the regional marketing campaigns and heritage pass programs.

212

III. The Potential Danger of the Creation of A Heritage Area

However, along with the many benefits that could occur, a very real danger could also
result from the creation of a German-Texas heritage area in the Hill Country. The citizens,
business people, and governments of the old Adelsverein settlement conmiunities could become
blinded by the economic possibilities of increased tourism that could result from the efforts of
the heritage area. As a result, they might initiate the creation of the heritage area without first
having adequate protections in place for the very historic, cultural, architectural, and
scenic/natural resources they wish to promote for generations to come.^°^ At the present
time, Fredericksburg simply does not have the regulatory mechanisms in place to adequately
protect the very historic, architectural, cultural, agricultural, and scenic resources that attract the
many tourists who visit the city each year. How much greater would the alteration or destruction
of these resources be with a increase in tourism generated by the efforts of the potential heritage
area given Fredericksburg's current lax level of historic preservation regulation and lack of
growth management mechanisms? Thus, unless the city both amended the current historic
preservation ordinance along the lines of the amended ordinance presented in this thesis and
developed a growth management plan such as the growth phasing program suggested in Chapter
Four, Fredericksburg's participation in any heritage area could destroy the very resources the city
intended to promote to its increased economic advantage. In fact, even with the amended
ordinance and a long-term growth management plan in place, preservationists in Fredericksburg
should hesitate to join such a heritage area without first extending the protections of the amended
ordinance to properties that are nominated for historic designation. This added and extremely

■^°^ National Trust for Historic Preservation, Getting Started: How to Succeed in
Heritage Tourism (Washington, D.C.: National Trust for Historic Preservation, 1993), pp.
32-25.

213

necessary amendment would help insure that owners enticed by greater profits from increased
tourism would not be able to make detrimental but commercially advantageous changes to their
nominated properties that could not gain approval under the criteria for the approval of
certificates of appropriateness under the amended ordinance.

The dangers of increased tourism to historic, cultural, architectural, agricultural, and
scenic resources are even greater for the smaller communities in the area, many of which are
unincorporated and therefore have no ability to protect themselves through municipal regulations.
The tiny, unincorporated communities of Stonewall and Luckenbach, both located in Gillespie
County and in the boundaries of the small heritage area known as the LBJ Heartland Network,
have worked hard to preserve the historic architectural resources in their surrounding areas and
to market them as rural historic sites for tourists. ^°^ Although the level of tourist visitation
of these sites generated by the efforts of the LBJ Heartland Network is relatively small, Stonewall
and Luckenbach's participation in a heritage area for the German-Texas Hill Country could result
in a huge increase in tourism to these sites, especially if they become part of a heritage pass
program. This potential increase in tourism, however, could also lead to the creation of souvenir
shops and tourist-oriented businesses in other historic buildings and structures in or around these
communities, with the possibility that these businesses could significantly alter the historic
character of these buildings. Increased tourism could result in the eventual replacement of much
of the hilly, scenic orchard and ranch lands surrounding these two tiny communities and the many
others in the area like them with residential subdivisions and fast food restaurants. With a lack

^°^ The LBJ Heartland Network, the Stonewall Heritage Society, and the Gillespie
County Historical Society have worked with residents of Stonewall and Luckenbach and their
surrounding areas to complete the rehabilitations of several historic area school houses and
promote these as rural historic tourist sites, according to Bernice Weinheimer, President,
Stonewall Heritage Society, Gillespie County, Texas, conversation with author, Stonewall,
Texas, 30 August 1995.

214

of any option to create municipal historic regulations due to the lack of incorporation, the
economic boom resulting from participation in any German-Texas Hill Country heritage area by
these two unincorporated towns and other towns like them in the area could and probably would
be coupled with disastrous results for their historic architectural, agricultural and scenic

resources.

Thus, ultimately, the creation of a German-Texas Hill Country heritage area could be
fantastic mechanism to increase awareness, visitation, and appreciation of the area's significant
historic, architectural, cultural, and natural/scenic resources. It could also result in an economic
windfall to area communities due to increased tourism. However, the potential exists for the
premature creation of this economically promising heritage area without some forms of adequate
protections for these significant resources being in place. The realization of this potential could,
in turn, result in substantial losses to these resources, particularly to those located in or around
small, unincorporated towns within the area. In order to avoid such devastating, potential losses,
the coalition of private and public sector entities that must work together to establish the heritage
area and implement its programs must first make certain that as many methods of protection of
these varied resources are in place as possible before the programs and campaigns of the heritage

area are begun.

The local governments of each municipality in the proposed heritage area must enact
historic preservation ordinances and/or insure that their preservation ordinances are strong enough
to protect designated resources from the dettimental onslaught of economic boom experienced by
Fredericksburg.^^"^ Preservationists in the unincorporated communities in the area must enlist

^^^ The State of Texas recognizes two types of municipalities in statutory law: general
law cities (under 5,000 in population) and home rule cities (over 5,000 in population that
adopt a city charter). Both general law and home rule cities may adopt zoning laws and,
therefore, preservation ordinances." (emphasis kept) THC, p. 3.

215

the aid of their county's County Historical Conunissions, which act as the local government arm
of the Texas Historical Commission at the county level.385 to help them register qualifying
resources in the area on the National Register of Historic Places and designate these resources
as Recorded Texas Historic Landmarks.386 Furthermore, historic and natural landscape
preservation proponents and local municipal govermnents should strive to create some method
of growth management for the cities in the area, in order to limit the harmful effects of sprawl
on the surrounding scenic and agricultural lands. In rural areas with unincorporated communities,
help from the Texas Parks and WUdlife Department and the Hill Country Foundation (the
regional land trust) could be enlisted to help educate local scenic and/or agricultural land owners
on the benefits of conservation easements and encourage them to donate such easements for the
protection of their lands from destructive development.

Such massive efforts to insure that as many regulatory measures as possible are in place
in the proposed heritage area will not gain success easily, given the anti-regulatory ideology
prevalent in the area and state regulations prohibiting certain provisions of municipal zoning
ordinances to apply to municipal extraterritorial jurisdictions.387 Consequently, the process
of initiating the beneficial operations of a heritage area in the German-Texas HUl Country could

385 Texas Historical Commission, Texas Preservation Handbook for County Historical
Commissions (Austin, Texas: Texas Historical Commission, 1994), p. 33.

386 Recorded Texas Historic Landmark designation confers roughly the same protections
offered by registration on the National Register of Historic Places. Persons wishing to change
the exterior appearance of a Recorded Texas Historic Landmark, includmg relocation and
demolition must notify the Texas Historical Commission at least sixty days before the desired
change is to take place. Once notified, the Commission may then negotiate for and encourage
the preservation of the Landmark, but the Commission is ultimately powerless to stop the
change from occurring. Texas Historical Commission, Texas Preservation Handbook for
County Historical Commissions (Austin, Texas: Texas Historical Commission, 1994), pp. 40-
41.

387 See Chapter Four.

216

be delayed for some time, and some communities, including Fredericksburg, may have to be
excluded from membership until they implement tough regulatory historic preservation ordinances
and achieve some success at comprehensive growth management planning or conservation
easement donation. In the long run, however, the additional delay in implementing the creation
of a heritage area for the German-Texas Hill Country will be worth while to all participating
communities. The regulations and protections initiated during the delay period will help insure
that the historic, cultural, architectural, and scenic/natural resources that the heritage area will
promote will exist well into the future as continuing sources of interest and attraction for tourists
and locals alike.

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CONCLUSION

As noted in Chapter One, the poverty and isolation that Fredericksburg, Texas,
experienced until the mid-twentieth century allowed the city to retain its German cultural heritage
and many of its nineteenth and early twentieth-century structures, including a number of fachwerk
(combination wooden beam and stone) buildings constructed by its original Adelsverein settlers.
However, Fredericksburg's "quaint" German atmosphere and its location within commuting
distance of Austin and San Antonio have caused tremendous increases in tourism and growth over
the last twenty years. As a result, the city proposed a basic historic preservation ordinance in
1987 which was based on Texas Historical Commission reconmiendations and the ordinances of
surrounding communities. The ordinance was significantly weakened in the process of enactment,
however, in order to gain public acceptance in the face of strong property rights-based opposition.
Under the current ordinance, the mandated Historic Review Board is a purely advisory body,
with no power to enforce its recommendations once initial reviews of proposed changes to or
demolitions of historic structures have been made. Furthermore, the City has only designated
one historic district since 1987, with no properties currently designated outside of this district's
boundaries.

The weakness of the present ordinance has allowed many of the city's historic buildings
to be altered in ways that compromise their historic structures or characters. The inability of the
Historic Review Board to prohibit proposed new construction or the relocation of structures
within the historic district has led to the construction of new buildings that detract from the
historic and cultural character of the city's recognized historic area. With the town's steady
growth in population and tourism and the resulting economic attractiveness of starting new
tourist-oriented businesses in historic or pseudo-historic buildings, the threat to Fredericksburg's

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historic built environment continues to grow. Fortunately, the City Council recently recognized
the weakness of the city's historic preservation ordinance in the face of this real threat to the
city's historic resources, and it authorized the Historic Review Board to begin work on proposals
to strengthen the present ordinance. However, the Historic Review Board member in charge of
drafting these proposals will be unable to carry out this responsibility at any time in the near
future. Thus, no changes will be made to the Fredericksburg historic preservation ordinance for
quite some time.

Another problem generated by the increase in population currently being experienced by
Fredericksburg is the loss of the city's surrounding agricultural lands and scenic hills to
commercial and residential development sprawl. This sprawl has the potential to cause a
significant drain of municipal coffers because of the cost the city must sustain in providing
utilities and services to the new developments. It also threatens to reduce the revenues and
livelihoods generated by tourists coming to the city to experience the scenic hills, the bucolic
atmosphere, and the area's famed peaches through the destruction of prime orchard and ranch
lands and the defacement of the beautiful hills. Unfortunately, the problem of sprawl has not yet
been recognized as critical by municipal officials or a majority of the citizens of Fredericksburg.

In order to combat the threats to the historic and natural resources in and around
Fredericksburg through an effective use of government regulation, one must overcome significant
feelings against such regulation that exist within the community. Recent political and legal battles
between local landowners and the U.S. Environmental Protection Agency, the National Park
Service, and the State of Texas have strengthened citizen opposition to government regulation of
private property. This opposition makes the attempt at having local citizens accept increased
historic preservation regulation in the form of an amended historic preservation ordinance rather
challenging to say the least. Furthermore, the profit to be obtained by landowners who sell their

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agricultural lands or scenic hills to developers, along with state laws that prevent lands within
municipalities' extraterritorial jurisdictions from coming under most of the municipalities' zoning
regulations, make the formulation of government regulations that can successfrilly bring sprawl
under control extremely difficult.

The purpose of this thesis is to offer legal means of preventing further destruction of both
the city's historic resources and the historic and scenic landscape that surrounds and help define
Fredericksburg, because of the increasing tourism and population growth the city continues to
sustain. However, these means have been developed with the political realities of the situation
in Fredericksburg in mind, so that they are intended to be the most practical yet publicly
acceptable solutions available to solve the city's problems with the loss of its significant historic,
cultural, architectural, and scenic/natural resources. Strategies have also been formulated to go
along with the regulatory solutions offered that could be used to help the proponents of historic
preservation and landscape protection gain acceptance for the proposed regulations among the
citizens of the city and the surrounding area.

The historic preservation ordinance contained in Chapter Two is proposed by this author
as a viable means of balancing the regulatory provisions necessary to adequately preserve
Fredericksburg's designated historic properties with the need to quell citizen fears of excessive.
The preamble to the proposed ordinance states the legal justification for the city's ability to
regulate designated properties under state law and state and federal judicial interpretation. ■'°°
It, along with Section 12.201, also offers an explanation of the socially, economically, and
educationally beneficial reasons that motivate the need for the amended historic preservation

30P

•^°° Please see Appendix B for reference to the specific sections of the amended
ordinance mentioned in this conclusion.

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ordinance. The presence of both a legal justification of historic preservation regulation and an
explanation of the benefits offered by such regulation are sorely lacking in the current ordinance.

Section 12.203 mandates that the Historic Review Board conform to the requirements
maintained for such bodies by the Texas Historical Commission for cities that desire to receive
the designation and the accompanymg economic and technical benefits of certified local
government status. In doing so, this section transforms the Historic Review Board from a purely
advisory body to a municipal board that has the power to enforce the expanded regulatory powers
granted the city in subsequent sections of the amended ordinance. Section 12.203 also mandates
that the Board sees to the creation of an historic preservation plan for the city as a component of
each new comprehensive plan devised for Fredericksburg and that the Board periodically reviews
and recommends preservation-promoting amendments to the Fredericksburg Code of Ordinances
and the City of Fredericksburg Zoning Ordinance. Both of these provisions are designed to
insure that the city actively promotes historic preservation in every realm of its operation, a
crucial concept in historic preservation regulation that receives only four words of mention in the
current ordinance.

Section 12.204 creates the part-time municipal position of City Historic Preservation
Officer and requires that the person selected for the position have expertise in historic
preservation or architectural history as well as other qualifications necessary to serve as a part-
time City Inspector under the City Building Official. The expertise of the City Historic
Preservation Officer (CHPO) helps assure that more preservation-friendly decisions and
enforcement will be carried out than is currently being conducted by the City Building Official
in his capacity as an equivalent to the proposed CHPO under the current ordinance. Having a
CHPO not only is a requirement for certified local government (CLG) status under Texas
Historical Commission (THC) regulations, but is also crucial for the adequate administration and

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enforcement of the provisions of the amended ordinance. The qualifications of the CHPO are
written in a way that may allow a citizen of Fredericksburg to qualify for the position, since it
will be more acceptable to the people of the city if the CHPO is a native who knows the
community and the needs of its people, rather than an outsider.

Section 12.205 expands the criteria used for the designation of historic landmarks and
historic districts to conform with criteria for designation mandated by the National Register of
Historic Places, thereby allowing the amended ordinance to satisfy another requirement for CLG
status. Subsection 12.205. 1 also mandates that an historic district proposed for designation must
have the approval of fifty-one percent of the owners of property within the potential district
before it can be designated as such, thereby guaranteeing Fredericksburg property owners that
historic district designation can be rejected by simple, democratic majority rule. Section 12.206
then establishes detailed regulations concerning how concerned parties are to be informed of
public designation proceedings, exactly how a series of public meetings must be held and what
actions must take place in order to designate a property or properties as historic, and how a
property owner or owners may appeal a designation or a lack of designation. These regulations
are intended to both satisfy CLG requirements and to assure the citizens of Fredericksburg that
the members of the government who have the power to designate properties as historic can learn
of the desires of affected property owners and can be held publicly responsible for their actions,
especially if their actions seem contrary to the public will.

Section 12.207 is intended to assure government regulation-anxious citizens that the
designation of a property as historic cannot change or affect the usage of that property under the
city's zoning ordinance. Section 12.208 is written to provide a legal mechanism to protect the
owners of certain designated properties, so that these owners do not have to be held continually,
legally responsible for the protection and preservation of designated properties that have lost their

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historical, architectural, or cultural significance through no fault of the owners themselves (such
as through an accident or natural disaster). It is recommended that the checks against excessive
regulation of private property written into Sections 12.205-12.208 be aggressively publicized as
a means of winning the support of skeptical citizens for the adoption of the amended historic
preservation ordinance by the City Council.

Section 12.209 contains the majority of the expanded regulatory powers granted the city
in the amended ordinance, and it is the ordinance's main tool for minimalizing the harmful effects
the increasing tourist and population growth of the city is having on its designated historic
resources. The certificate of appropriateness procedures and requirements established in this
section are designed to insure that all new construction, reconstruction, maintenance, repair,
restoration, installation, and alteration conducted on designated historic landmarks or within
designated historic districts will not be detrimental to the structure and/or significant character
of these landmarks and historic districts. Subsection 12.209.3 is specifically written to prevent
all but the most essential demolitions of historic landmarks and contributing properties within
historic districts to occur. Strict enforcement procedures contained in subsection 12.209.5 are
designed to discourage property owners from trying to illegally avoid the certificate of
appropriateness process.

However, the provisions of subsection 12.209.1 are meant to assure wary owners of
designated properties and other citizens that the Board will work diligently to conform to the
financial and other needs of property owners in making its decisions on certificate of
appropriateness applications. The appeals process written into the procedures outlined in
subsection 12.209.2 are also meant as a mechanism by which overly excessive rulings on
certificates of appropriateness applications may be overturned, thereby helping to assuage local
fears that the powers of certificate of appropriateness application review granted to the Historic

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Review Board will be misused. Similarly, Sections 12.210 and 12.211 are intended to provide
relief to owners of designated properties who might be suffering from economic or other serious
hardship because of the prohibitions against significant exterior changes to designated properties
contained in Section 12.209. No similar and extremely necessary safeguards exist within the
city's current ordinance. Once again, it is recommended that the safeguards against excessive
regulation in Sections 12.209-12.211 be aggressively marketed to the populace in order to help
eliminate citizens' fears and thereby gain fiirther public support for the adoption of the amended
ordinance.

Not only are Sections 12.210 and 12.211 intended to reduce citizen concerns over
government regulation of private property, but they are also intended to reduce the risk that the
city will be found guilty of a regulatory taking in a suit brought against an aggrieved applicant
who went through the processes outlined in either or both of the sections without success. The
economic hardship application procedure contained in Section 12.210 is also necessary for
Fredericksburg to receive CLG status from the THC.

Sections 12.213 and 12.214 are designed to work with the provisions of Section 12.209
in helping to protect designated resources from detrimental change by enabling the Historic
Review Board to stop the demolition of designated properties through neglect and to help stop
the use of the city's public safety laws by malicious owners to force the demolition of designated
historic resources. Again, similar sections are lacking in the present ordinance, but are necessary
to prevent the destruction of designated properties m times of fiiture economic depressions within
the community. Section 12.215 is also intended to help accomplish the goal of protecting historic
resources manifested in the provisions of Sections 12.209, 12.210, and 12.211 by giving the
Board authority to recommend that the city acquire ownership and control of endangered
designated resources.

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Two other sections crucial to the protections offered historically designated properties in
the amended ordinance are the applicability and enforcement provisions contained in Section
12.216 and the penalty and remedy provisions contained in Section 12.217. Section 12.216
extends the regulatory powers of the ordinance over designated properties owned by the City of
Fredericksburg, and it delegates enforcement responsibilities to specific city officials, a delegation
of responsibility that is woefully lacking in the current ordinance. Section 12.217 offers stiff
penalties as a discouragement to any owners of designated properties or their hired workers who
might desire to make detrimental changes to Fredericksburg's historic resources. Section 12.218,
on the other hand, is designed to insure that the ordinance and protections offered to the city's
historic resources by its provisions do not become null and void if any of the sections in the
ordinance are declared unconstitutional by a court of competent jurisdiction. This section is a
necessity in such a litigious age and in a city and state where such a high level of concern over
possibly detrimental government regulation of private property exists.

Finally, Section 12.2 19's expiration date for the temporarily amended ordinance is
intended to provide the proponents of the amended ordinance a major tool in the fight to achieve
initial adoption of the ordinance by the City Council in the face of property rights-based
opposition from local citizens. Section 12.219 gives the ordinance a four year "trial period,"
which should be a short enough time period of enforcement so that citizens worried about
potential abuses that could result from the enactment of the ordinance will be willing to give the
ordinance a trial run without feeling they are committing themselves to something that could
irreversibly harm themselves and their neighbors. This trial period should also provide enough
time to allow the enforcement of the ordinance to start producing the benefits of historic
preservation regulation promised by the ordinance's proponents. Hopefully, the benefits that will
be produced by the amended ordinance will be substantial enough to overcome any opposition

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that might still exist within the community at the end of the temporary enforcement of the
ordinance. If such is the case, then Fredericksburg can permanently enact this strong historic
preservation ordinance that will adequately protect its historic resources from increased tourism
and population growth, provide technical and financial assistance to preservation projects in the
city through the privileges offered CLGs by the THC, and well serve the needs and desires of
the citizens of Fredericksburg.

A method to decrease the cost to the taxpayer of the increased historic preservation
regulation mandated by the amended ordinance is offered in Part I of Chapter Three in the form
of a temporary amendment to the city's hotel occupancy tax. The amendment takes advantage
of a provision of the Texas Tax Code that allows the City of Fredericksburg to allocate a certain
percentage of the revenues generated by the municipal hotel occupancy tax to the Historic Review
Board for the support of tourism-generating programs involving historic preservation. Such an
amendment would not only decrease the tax revenues necessary to support historic preservation
regulation in Fredericksburg under the amended ordinance, it would also help increase the profits
generated from tourism in the city to the benefit of the city and its citizens. Thus, this temporary
amendment to the city tax code could help make the temporarily amended historic preservation
ordinance more acceptable to the people of Fredericksburg, and it should be enacted out of a
sense of equity to help make the tourists who enjoy the historic resources of the city help pay to
insure the continued preservation of these resources.

Parts II through IV of Chapter Three deals with the many actions and changes that are
needed to bring both the regulations and aims of the city's signage ordinance, zoning ordinance,
building code, and fire safety code into a significant measure of conformity with the regulations
and aims of the proposed amended historic preservation ordinance. Part II contains an
amendment to the city's signage ordinance that will extend the jurisdiction of the Historic Review

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Board to review all proposed work to signs under the certificate of appropriateness procedures
in the temporary, amended ordinance to include all signs in all designated historic districts and
on all designated historic landmarks. This amendment will allow the amended historic
preservation ordinance and the signage ordinance to be complementary rather than contradictory,
thereby ftirther advancing the cause of historic preservation in the city.

It is argued in Part in of Chapter Three that spatial requirements for setbacks, building
heights, etc., written into the zoning categories of properties located within designated historic
districts must be changed to more closely mirror the historic preservation-oriented design
guidelines developed for these properties by the Historic Review Board. These changes will
eliminate the potential for anti-preservation property owners to play one set of spatial regulations
off of another to avoid conformance with the aims of the amended preservation ordinance. The
chapter also recommended that special off-street parking requirements for designated historic
properties already in the zoning ordinance be extended to all relevant designated historic
properties. This action will reduce the likelihood of the destruction of an historic resource in
order to satisfy rigid off-street parking standards. Finally, the chapter strongly urged the city to
adopt the National Existing Structures Code as a means of eliminating the municipal regulations
concerning building and fire safety that make it virtually impossible to substantially rehabilitate
buildings and structures in a manner sympathetic to the preservation of their historic structures
and characters.

Chapter Four focuses first on how Fredericksburg's problems with sprawl directly affect
the cause of historic preservation within the city itself and then concentrates on methods that
could be utilized to combat sprawl and save the surrounding area's historic agricultural lands and
scenic beauty. The chapter offers a solution to the problem through the formulation and
implementation of a growth phasing program for the city that would channel growth into

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designated areas within Fredericksburg's extraterritorial jurisdiction. However, as the chapter
points out, the significant public opposition that would first have to be overcome in order to
begin the formulation of the program makes the idea a long term solution at a time when
immediate solutions are necessary. Thus, the short term solution of amending the city's
comprehensive plan, subdivision ordinance, and planned unit development regulations is
recommended to 1) allow the use of cluster zoning in new developments within the city limits in
order for developers to comply with municipal regulations prohibiting the development of hills
designated as scenic, and 2) to strongly encourage the use of similar cluster zoning techniques
in subdivisions planning to develop scenic hills located within the city's extraterritorial
jurisdiction in order to avoid the loss of these hills' visual beauty.

Admittedly, this short term solution merits more study than can be provided in this thesis,
especially in light of the strict state laws prohibiting the extension of most provisions of
Fredericksburg's zoning ordinance into the city's extraterritorial jurisdiction. The lucrative
opportunity the traditionally poor land owners around Fredericksburg see in the ability to sell
their agricultural and scenic land for unlimited development is yet another source of public
objection to this short term solution that limits the chances of success of such a solution.
However, the second short term solution proposed in Chapter Four, the encouragement of land
owners in the surrounding area to donate conservation easements as a method of decreasing
income, property, and estate taxes, does have a fair chance at helping to preserve the historic and
scenic landscape surrounding the city. The state's conservation easement program offers both
immediate and long term financial benefits to land owners, and it does not smack of any form of
involuntary and/or excessive government regulation of private property. Thus, this second, short
term solution offers the most viable, least antagonistic, solution for slowing the destructive

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advancement of sprawl around Fredericksburg until such time as its citizens can be convinced to
support the formulation of a growth phasing plan for the city.

Chapter Five proposes further amendments to the temporary, amended ordinance once
it is permanently enacted that will be necessary to deal with the anticipated problems and needs
of preservation regulation in Fredericksburg that will develop in the years to come. Increases
in the membership of the Historic Review Board and the expansion of the office of City Historic
Preservation Officer are urged to insure that the ordinance will be properly administered and
enforced as the number of designated properties grows. The chapter recommends the creation
of application fees for certificate of appropriateness applications to help the city pay for the
increasing cost involved in the administration of the amended ordinance, and it urges the
formulation and addition of municipal tax incentives to the ordinance to encourage the proper
rehabilitation of designated properties that caimot qualify for other existing federal tax incentives.
The last and most crucial amendment recommended by this chapter is the one that would extended
full application of the ordinance's certificate of appropriateness requirements to properties once
they are nominated for designation. This amendment would protect potentially eligible properties
from having their significant characteristics destroyed by malicious property owners who are bent
on seeing that their properties are not designated as historic, or who wish to complete desired but
detrimental changes to their property that they know will not be allowed once the property
becomes designated.

Finally, Chapter Six first examines the potential economic and historic preservation-
related benefits to be derived by Fredericksburg and other Adelsverein communities were these
towns to create some form of German-Texas Hill Country heritage area. The chapter then
focuses on the many threats to the significant historic,

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cultural, architectural, and scenic/natural resources of the area posed by the premature promotion
of the heritage area to tourists before the highest possible levels of protection for these resources
are firmly in place. As Chapter Six points out, Fredericksburg's current historic preservation
ordinance cannot protect the city's resources from the destructive pressures being imposed by the
city's current level of tourism and population growth, much less protect the same resources from
an anticipated increase in tourism and population growth generated by the creation of some form
of Adelsverein heritage area. Only with the protections offered by the adoption of the proposed
amended ordinance or some similarly constructed ordinance could Fredericksburg legitimately and
safely seek to become involved in the creation and/or promotion of such a heritage area.

The many people who visit Fredericksburg each year to experience its quaint Germanic
culture, its numerous historic buildings, its beautiful, rural setting, and its peaches make the
tourist industry a vital part of the local economy. These same assets also make the city attractive
to more and more people who wish to move to Fredericksburg and experience its high quality of
life permanently. However, the city and its citizens are destroying the very assets that attract
both visitors and new residents alike in the desire by local businesses to capitalize on the use of
historic or pseudo-historic buildings to help increase their sales and in the push to build new
houses and commercial centers to cater to new residents. Clearly, the time to act to stop this
destruction is now, before a significant portion of the city and surrounding area's cultural,
architectural, scenic, and historic resources is lost forever. It is hoped that the submission of a
more sympathetically edited version of the amended historic preservation ordinance and the other
recommendations contained in this thesis to several key members of Fredericksburg's Historic
Review Board and several members of area and state-wide landscape protection and historic
preservation organizations and agencies will help inspire Fredericksburg to deal with the major
threats that exist to the livelihood and social welfare of the community. The public officials and

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concerned citizens of Fredericksburg have seen that the historic preservation regulation focusing
upon voluntary compliance under the current ordinance simply does not work. They must now
realize that the time has arrived for an increase in the city's regulatory power to save the historic,
cultural, architectural, and scenic resources of the city and surrounding area, formulated and
administered in such a way as to engender the respect, support, and cooperation of the citizens
of the community for these necessary regulatory measures.

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APPENDIX A: CURRENT FREDERICKSBURG
fflSTORIC PRESERVATION ORDINANCE

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ARTICLE 12.200 HTSTORTC PRFSF.RVATTON
§ 12.201 Adoption

There is hereby adopted the Historic Preservation Ordinance of Fredericksburg, Texas.
(Chapter 14-1/2, Section 14-1/2-1, Code of 1965)

§ 12.202 Definitions

Historic district. "Historic district" is defined as an area which has outstanding historical
and cultural significance in the state, region or community, within which the buildings,
structures, accessory buildings, fences, or other appurtenances are of basic aiid vital
importance for the development of culture and tourism because of their association with
history, including:

(a) Historic structures, sites or areas within which the buildings, structures,
appurtenances, and places exemplify the cultural, political, economic or social
history of the state, region or community.

(b) Historic structures, sites or areas that are identified with the lives of historic
personages or with important events in state, regional or local history.

(c) Structures or areas that embody the distinguishing characteristics of an
architectural type specimen as to color, proportion, form and architectural
details.

Historic landmark. "Historic landmark" is defined as a place which has outstanding
historical and cultural significance in the nation, region or community. The designation
"historic landmark" recognizes that the historic place, or the building(s), structure(s),
accessory building(s), fences or other appurtenances at the place, are of basic and vital
importance for the preservation of culture and the development of tourism. (Chapter 14-
1/2, Section 14-1/2-2, Code of 1965)

§ 12.203 Designation of Historic Districts and Historic Landmarks

(a) Historic Districts

(1) Zoning Designation. The city council may, from time to time, designate certain
areas in the City of Fredericksburg as historic districts, and define, amend or

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eliminate the boundaries of same. Such districts shall bear the word "Historic"
in their zoning designation. Such designation shall be in addition to any other
zoning district designation esublished in the zoning ordinance. All zoning
maps shall reflect the historic district by the letter "H" as a suffix to the use
designated.

(2) Criteria. In making the designation of an area as an historic district, the city
council shall consider one (1) or more of the following criteria:

(A) Character, interest or value as part of the development, heritage or cultural
charaaeristics of the City of Fredericksburg;

(B) Location as the site of an historical event;

(Q Embodiment of distinguishing characteristics of an architectural type or
specimen;

(D) Relationship to other distinctive buildings, sites, districts or structures
which are historically significant and preserved, or which are eligible for
preservation;

(E) Unique location of singular physical characteristics representing an
established and familiar visual feature of a neighborhood, commuiuty or
the city;

(F) Value as an aspect of community sentiment or public pride;

(G) Identification with a person or persons who significantiy contributed to
the development or culture of the city.

(b) Historic Landmarks

(1) Zoning designation. The city council may, from time to time, designate certain
places in the City of Fredericksburg as historic landmarks. Such places shall
bear the word "Historic" in their zoning designation. Such designation shall be
in addition to any other zoning district designation established in ±e zoning
ordinance. All zoning maps shall reflect the historic landmark by the letter "H"
as a suffix to the use designated.

(2) Criteria. In making the designation of a place as an historic landmark, the city
council shall follow the procedures set forth in subsection (a)(2) of this section.

(Chapter 14-1/2, Section 14-1/2-3, Code of 1965)

§ 12.204 Historic Review Board

(a) Creation of hoard. There is hereby created an Historic Review Board of the City of
Fredericksburg, Texas, hereinafter called the "board," consisting of seven (7) members
appointed by the city council.

Oj) Term of appointment. Each member of the board shall be appointed for a term of
three (3) years, except that of the members of the first board to be appointed, two (2) shall
be appointed to serve for two (2) years, and two (2) for one year. The temi shall expire on
the first day of July of the appropriate year. Any vacancy on the board shall be filled by the

234

city council for the remaioder of the expired term. Any member of the board who fails to
attend at least seventy-five percent (75%) of all regular meetings of the board within any
twelve (12) month period shall be removed from the board, unless such failure to attend
was the result of illness or other acceptable excuse as determined by the city council.

(c) Qualifications. Each member of the board shall be

( 1 ) a resident of the City of Fredericksburg, Texas, or

(2) a resident of Gillespie County, Texas who owns an historic landmark or real
property located within an historic district

The board shall include at least one (1) representative from each of the following
organizations: Gillespie County Historical Society and Fredericksburg Heritage
Federation. Not less than two (2) members of the board shall reside in an historic
landmark or within an historic district Not less than one (1) member of the board shall
have a license, degree, or professional experience in the field of architecture, architectural
history, history, historic preservation or historic restoration. All members shall be persons
who in the opinion of the city council have demonstrated interest and knowledge in the
historical preservation of Fredericksburg.

(d) Chairman and vice chairman of the board. The chairman and vice chairman of the
board shall be elected annually by a majority of the members of the board, and shall serve a
term of one (1) year or until their successors are elected.

(e) Functions of board. The board shall act in an advisory capacity only, and shall have
no power to bind the city by contract or otherwise. It shall be the function of the board to
advise the building official concerning all applications for certificates of review in historic
districts or historic landmarks.

(f) Secretary of board. The building official or his/her representative shall act as
secretary of the board and shall attend and keep the minutes of all meetings.

(g) Ex officio members. The following members or their representatives shall serve on
the board as ex officio members:

(1) Building Official;

(2) City Secretary, and

(3) City Attorney.

Ex officio members shall have no right to vote, but shall assist the board in its various
functions.

(h) Meetings. The board shall meet at least once a month at a regularly scheduled time.
Special meetings may be called upon request of the chairman or the vice chairman, or upon
written request of four (4) members, or upon notice fi"om the building official that a matter
requires the consideration of the board. All meetings shall have advance notice posted in
accordance with the Texas Open Meetings Law. Five (5) members shall constitute a
quorum, and action taken at a meeting shall require the affirmative vote of a majority of the
members present and voting at such meeting. (Chapter 14-1/2, Section 14-1/2-4, Code of
1965)

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§ 12.205 Certificate of Review

(a) No person or entity shall install, construct, reconstract, alter, change, restore, remove
or demolish any exterior architectural feature of any historic landmark or of any building or
structure located within an historic district unless application is made for a certificate of
review and such a certificate is granted by the building official

(b) The applicant shall submit to the building official an application in writing for a
certificate of review which includes data and information as required by the building
official, including but not limited to the following:

( 1 ) Name of applicant and property owner.

(2) Mailing address of applicant and permanent address of property owner.

(3) Location of property to be altered or repaired.

(4) A detailed description of the nature of the proposed external alteration or repair
to be completed.

(5) The intended and desired starting date and completion date of the alterations or
repairs to be made.

(6) A drawing or sketch of the proposed external alteration, if applicable.

(c) Applications that are incomplete or not in compliance with the city building code,
restrictions and other city ordinances shall be returned to the applicant for completion and
compliance.

(d) If the building official determines that the application involves ordinary repair or
maintenance, or alteration, change, restoration or removal of any exterior architectural
feature of a building or structure which does not involve significant changes in the
architectural or historic value, style, general design or appearance, he/she shall within
seven (7) days approve the application and forward a copy of the application and approval
to the chairman of the board, or to the vice chairman of the board if the chairman is not
available. The chairman or vice chairman of the board shall within three (3) business days
either approve the building official's decision or call for a meeting of the board to consider
the application. If the chairman or vice chairman of the board does not take any action
within three (3) business days, it shall be deemed that such person has approved the
building official's decision.

(e) If the building official determines that the application involves an alteration, change,
restoration, removal or demolition of an external architectural feature of a building or
structure which involves a significant change in the architectural or historic value, style,
general design or appearance, he/she shall refer the application to the board and call for a
meeting of the board to consider the application.

(f) The board shall hold a meeting to consider the application within forty (40) days after
receipt of a completed application. The applicant shall be given written notice of the time
and place of the meeting. Notice of the meeting shall be published in the official newspaper
of the city at least five (5) days prior to such meeting. The board may hold any additional
meetings it considers necessary to carry out its responsibilities under this article. The
applicant or his/her agent shall attend at least one (1) meeting of the board during which
his/her application is considered. The board shall make its recommendation to the building

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official within sixty (60) days after receipt of a completed application unless the boaid and
the applicant mutually agree to extend the period of review. If action is not taken within
sixty (60) days after receipt of a completed application, it shall be deemed that the board
recommends approval of the application.

(g) Anything in this article to the contrary notwithstanding, the board shall make its
recommendation to the building official within one hundred twenty (120) days after receipt
of a completed application for a permit to demolish an historic landmark or a building
within an historic district, or to move an historic landmark, or to move a building into or
out of an historic district

(h) The board shall forward its report and recommendation to the building official. Upon
receipt of the report of the board, the building official shall within three (3) days issue a
certificate of review to the applicant (Qiapter 14-1/2, Section 14-1/2-5, Code of 1965)

§ 12.206 Criteria To Be Used

In determining the recommendation and action on an application for a certificate of review,
the building official and historic review board shall consider the following matters:

(a) The effect of die proposed change upon the general historic, cultural and architectural
nature of the district or landmark.

(b) The appropriateness of exterior architectural features which can be seen from a public
street, alley, or walkway.

(c) The general design, arrangement, texture and material of the building or structure and
the relation of such factors to similar features of buildings or structures in the district The
criteria shall not be the aesthetic appeal to the board of the structure or the proposed
remodeling but rather its conformity to the general character of the particular historic area
involved.

(d) All signs shall be in keeping with the character of the historic district or landmaiic

(e) The value of the historic district or landmark as an area of unique interest and
character shall not be impaired.

(f) The general and specific Standards for Rehabilitation and Guidelines for Applying the
Standards for Rehabilitation, as issued by the Secretary of the Interior.

(g) The importance of finding a way to meet the current needs of the property owner, and
the importance of approving plans that will be economically reasonable for the property
owner to carry out (Chapter 14-1/2, Section 14-1/2-6, Code of 1965)

§ 12.207 Annual Report

(a) The board shall make an annual report to the city council on the state of historic
preservation in the city and shall include in the report a summary of its activities for the past
year and a proposed program for the next year.

(b) The board shall have the further responsibility of recommending to the city council,
planning and zoning comnussion, and city departments the adoption of policies, the
sources of funds, and designation of historic districts and historic landmarks that may
further the city's preservation effort (Chapter 14-1/2, Section 14-1/2-7, Code of 1965)

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§ 12.208 Signs in Historic District

(a) Signs other than those signs deemed exempt under Section 3.1 105 to be placed in the
historic district shall be subject to the review requirements of this article.

(b) Businesses located in the historic district shall have the option to erect a medallion or
shield sign in lieu of the ground sign requirements of Section 3. 1 107(b)(3) or (c)(5). Any
such sign shall not exceed sixteen (16) square feet of sign area, shall be mounted no more
than nine feet (9') above the adjacent ground, and shall be erected wholly on private
property. (Ordinance adopting Code)

§ 12.209 Violations; Penalties

(a) It shall be unlawful to construct, reconstruct, structurally alter, remodel, renovate,
relocate, restore, demolish, raze or maintain any building, structure, accessory building,
fence or other appurtenance in an historic district or historic landmark in violation of the
provisions of this article, and property city officials, or their duly authorized
representatives, in addition to other remedies, may institute any appropriate action or
proceeding to prevent such unlawful construction, reconstruction, structural alteration,
remodeling, renovation, restoration, relocation, demolition, razing or maintenance, to
restrain, correct or abate such violation, to prevent any illegal act, conduct, business or
maintenance in and about such premises. Each day such violation continues shaU constitute
a separate violation.

(b) Any person, firm or corporation violating any provision of this article shall be guilty
of a misdemeanor, and each shall be deemed guilty of a separate offense for each day or
portion thereof during which any violation hereof is committed, continued or permitted,
and upon conviction any such violation shall be punishable by a fine not to exceed two
hundred doUars ($200.00). (Chapter 14-1/2, Section 14-1/2-8, Code of 1965)

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APPENDIX B: TEMPORARY AMENDED
fflSTORIC PRESERVATION ORDINANCE

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AN ORDINANCE TEMPORARILY AMENDING CHAPTER 12 ARTICLE 12.200 OF THE
CODE OF ORDINANCES OF THE CITY OF FREDERICKSBURG, TEXAS (HISTORIC
PRESERVATION); TEMPORARILY REPEALING ALL ORDINANCES IN CONFLICT;
ESTABLISHING AN EFFECTIVE DATE; AND ESTABLISHING AN EXPIRATION DATE
FOR THE TEMPORARY ORDINANCE UNLESS PERMANENTLY ADOPTED BY CITY
COUNCIL

WHEREAS, the Constitution of the State of Texas, 1876, expressed the obligation of the
government to preserve the evidence of Texas' historical heritage (Texas Constitution Act XVI.
Sections 38, 39, and 45, providing respectively for the Commissioner of Insurance, Statistics, and
History; Appropriations for Historical Memorials; and Historical Records, Rolls, and
Documents); and

WHEREAS, the first session of the Texas legislature following the adoption of the
Constitution of 1876 created the Department of Insurance, Statistics, and History (8 Gammel's
Laws pp. 1055, 1061); and

WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, the Municipal Zoning
Authority, specifically authorizes zoning functions and procedures for municipalities; and

WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, Section 211.003
provides that in the case of designated places and areas of historical, cultural, or architectural
importance and significance, the governing body of a municipality may regulate the construction,
reconstruction, alteration, or razing of buildings and other structures; and

WHEREAS, CH. 211 TEXAS LOCAL GOVERNMENT CODE, SECTION 211.005
authorizes the governing body of a municipality to divide the municipality into districts, within
which the governing body may regulate the erection, construction, reconstruction, alteration,
repair, or use of buildings, other structures, or land and within which zoning regulations must
be uniformed for each class or kind of building in a district; however, zoning regulations may
very from district to district; and

WHEREAS, the court in Connor v. City of University Park, 142 S.W. 2d 706 (Tex. Civ.
App. -Dallas 1940, writ ref d) held that "aesthetic considerations" are legitimate concerns in the
regulation of land use years before historic preservation was included through amendment as part
of the Municipal Zoning Authority, and the court in City of Dallas v. Crownrich, 506 S.W. 2d,
654 (Tex. Civ. App. -Tyler 1974, writ ref d n.r.e.) confirmed the legality of municipal historic
preservation regulation through zoning laws under the powers granted municipalities in Texas,
and the United States Supreme Court in Penn Central Transportation Co. v. City of New York,
438 U.S. 104 (1978) reaffirmed its decisions in Village of Belle Terre v. Boraas, 416 U.S. 1, 9-
10 (1974), Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976), and City of New Orleans
V. Dukes, 421 U.S. 297 (1976) that State and city enactment of land use regulations designed to
enhance the quality of life through the preservation of the heritage and character of a city and its
desirable aesthetic features is legal under the Constitution of the United States; and

WHEREAS, the City Council of the City of Fredericksburg recognizes the vital

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importance that its residents place on the preservation and maintenance of the municipality s
unique historical, cultural, and architectural heritage as evidenced by the many historic structures
and properties, all of which maintain cultural and neighborhood identity while encouraging
tourism and industry, which are significant economic activities and sources of revenue for the
municipality and its residents; and

WHEREAS, the City Council recognizes that the requirement of preserving the
historical, cultural, and architectural heritage of the municipality is necessary because changes
increasingly threaten to destroy buildings, structures, and areas having important historical,
cultural, architectural, and community values, which, when damaged, altered, or destroyed,
cannot be replaced; and

WHEREAS, it is the intent of the City Council to preserve the historical, cultural, and
architectural heritage of the municipality while fully recognizing that fundamental property rights,
guaranteed by the Constitution, emphasized by the Congress, and upheld by the Courts, must be
protected.

NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF
FREDERICKSBURG, TEXAS:

That Chapter 12, Article 12.200 of the Code of Ordinances of the City of Fredericksburg is
hereby temporarily amended in its entirety, pursuant to CH. 211 TEXAS LOCAL
GOVERNMENT CODE, and shall henceforth read as follows:

ARTICLE 12.200 HISTORIC PRESERVATION

§ 12.201 Purpose and Intent

The City Council hereby recognizes that the City of Fredericksburg has become nationally and
internationally known for its historic, architectural, and cultural resources and its beautiful setting
in the Texas Hill Country. Fredericksburg's distinct qualities have proven increasingly attractive
to residents, businesses, and tourists alike.

As a matter of public policy, the protection, enhancement, and perpetuation of landmarks or
historic districts of historical, cultural, and architectural merit are necessary to promote the
economic, cultural, educational, and general welfare of the public. The City Council recognizes
that the City of Fredericksburg represents the unique confluence of time and place that shaped
the identity of generations of citizens, collectively and individually, and produced significant
historic, architectural, and cultural resources that constitute their heritage. The provisions of this
historic preservation ordinance are designed to achieve the following goals:

(1) To preserve, protect, and enhance significant sites and structures that
represent or reflect distinctive and important elements of the city's and/or State's
architectural, cultural, social, economic, ethnic, and political history and that
impart a distinctive aspect to the City;

(2) To foster civic pride in the accomplishments of the past and strengthen civic
pride through historic preservation;

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(3) To promote the economic prosperity and welfare of the community by
conserving the value of landmark buildings through stabilization, restoration or
rehabilitation, and by encouraging the most appropriate use of such property
within the city;

(4) To protect and enhance Fredericksburg's attractiveness to visitors and the
support and stimulus to the economy thereby provided;

(5) To ensure the harmonious, orderly, and efficient growth and development of
the City;

(6) To provide a review process for the appropriate preservation and development
of important cultural, architectural, and historic resources; and

(7) To maintain a generally harmonious outward appearance of both historic and
modem structures through complementarily of scale, form, proportion, texture,
and material.

f 12.202 Definitions

The following definitions shall apply only to Article 12.200.

ALTERATION: Any construction or change of the exterior of a building, object, site, or
structure designated as an historic landmark or located within an historic district. For buildings,
objects, sites, and structures, alteration shall include, but is not limited to, the changing of
roofing or siding materials; changing, eliminating, or adding doors, door frames, windows,
window frames, shutters, fences, railings, porches, balconies, signs, or other ornamentation.
Alteration shall not include ordinary maintenance or repair.

BUILDING: A building is a structure created to shelter people or things, such as a house, bam,
church, hotel, warehouse, or similar structure, including an historically related complex, such as
a courthouse and jail or a house and bam.

CERTIFICATE OF APPROPRIATENESS: A signed and dated document evidencing the
approval of the Historic Review Board for work proposed by an applicant.

COMPREHENSIVE PLAN: A document or series of documents prepared by or for the Planning
and Zoning Commission setting forth policies for the future of Fredericksburg.

CONSTRUCTION: The act of adding an addition to an existing building or structure or the
erection of a new principal or accessory building or structure on a lot or property.

CONTRIBUTING: A building, object, site, or structure located in an historic district that
contributes to the district's historic, cultural, or architectural significance through location,
design, setting, materials, workmanship, feeling, and association, and that shall be afforded the
same considerations as an historic landmark. Such a property is classified as contributing on all
city zoning maps and in the design guidelines for the historic district in which it is located.

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DEMOLITION: An act or process that destroys or razes in whole or in part a site, structure,
building, or object, or permanently impairs its structural or historic integrity.

DESIGN GUIDELINES: Guidelines that are adopted by the Historic Review Board and are
meant to be used to help protect, perpetuate, and enhance the historic, cultural, or architectural
character of a building, object, site, or structure.

ECONOMIC HARDSHIP: An economic burden imposed upon an owner that is unduly excessive
and prevents a realization of a reasonable return upon the value of the property.

ENDANGERED: Threatened by deterioration, damage, or irretrievable, irreplaceable loss due
to neglect, disuse, disrepair, instability, lack of financial resources, and/or impending demolition.

HISTORIC DISTRICT: An area, urban or rural, defined as an "historic district" by City
Council, State, or Federal authority and that may contain within definable geographic boundaries
one or more historic landmarks, including their accessory buildings, fences, and other
appurtenances, and natural resources having historical or cultural significance, and that may have
within its boundaries other buildings or structures, that, while not of such historic, architectural,
or cultural significance as to be designated landmarks, nevertheless contribute to the overall visual
setting of or characteristics of the historic landmark or landmarks located within the district.

HISTORIC LANDMARK: A building, object, site, or structure that is of value in preserving
the historic, cultural, or architectural heritage, or an outstanding example of design or
craftsmanship, or a site closely related to an important personage, act, or event in history. Such
properties should be preserved and protected from modifications that detract from their historical
character or significance.

HISTORIC PRESERVATION: The identification, evaluation, recordation, documentation,
acquisition, protection, management, rehabilitation, restoration, stabilization, maintenance, and
reconstruction of historic building, structures, sites, or objects, or any combination of the
foregoing activities.

HISTORIC PRESERVATION PLAN: A document that integrates the various preservation
activities in the city and gives them coherence and direction, as well as relates the community's
preservation efforts to community development planning as a whole.

HISTORIC REVIEW BOARD: The Historic Review Board of the City of Fredericksburg
reestablished and continued by this ordinance.

INVENTORY: A systematic listing of cultural, historical, or architectural resources prepared
by a city, state, or federal government or a recognized local historic authority, following
standards set forth by city, state, and federal regulations for evaluation of cultural properties.

NON-CONTRIBUTING: A building, object, site, or structure that, though located within the
boundaries of an historic district, does not contribute to the historic, cultural, or architectural
character thereof and that is classified as not contributing on all city zoning maps and in the
design guidelines for the historic district in which it is located. Such designation is meant to
provide greater latitude for the utilization of the property, but all modifications shall conform to

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the design guidelines and all regulations of this ordinance unless otherwise exempted.

OBJECT: An object is a material thing of functional, aesthetic, cultural, or historic value that
may be, by nature or design, movable yet related to a specific setting or environment.

ORDINARY MAINTENANCE AND REPAIR: Any work, the purpose and effect of which is
to correct any deterioration or decay of or damage to a building, object, site, or structure, or any
part thereof, and to restore the same, as nearly as may be practical, to its condition prior to such
deterioration, decay, or damage, using the same materials or materials available that are as close
as possible to the original. Any such work must comply with all applicable codes and ordinances
of the City of Fredericksburg. Ordinary maintenance and repair does not include a change in
design, material, or outward appearance other than a change in color; it does include in-kind
replacement and repair.

REASONABLE RETURN: A reasonable profit or capital appreciation that may accrue from the
use or ownership of a building, object, site, or structure as the result of an investment or labor.

RECONSTRUCTION: The act or process of reassembling, reproducing, or replacing by new
construction, the form detail, and appearance of a building, object, or structure and its setting as
it appeared at a particular period of time by means of the removal of later work, the replacement
of missing earlier work, or the use of original materials.

REHABILITATION: The act or process of returning a building, object, site, or structure to a
state of utility through repair, remodeling, or alteration that makes possible an efficient
contemporary use while preserving those portions or features of the building, object, site, or
structure that are significant to its historic, architectural, and cultural values.

RELOCATION: Any change of the location of a building, object, or structure in its present
setting or to another setting.

RESOURCE: A source or collection of buildings, objects, sites, structures, or areas that
exemplify the cultural, social, economic, political, or architectural history of the nation, state,
or city.

RESTORATION: The act or process of accurately recovering the form and details of a building,
object, site, or structure and its setting as it appeared at a period of time by means of the removal
of later work or by the replacement of missing earlier work.

SITE: The location of a significant event, an historic activity, or a structure or group of
structures, whether standing, ruined, or vanished, where the location itself maintains historical
or cultural value, regardless of the value of any existing structure.

STABILIZATION: The act or process of applying measures designed to reestablish a weather-
resistant enclosure and the structural stability of an unsafe or deteriorated building , object, site,
or structure while maintaining the essential form as it exists at present.

STRUCTURE: Anything constructed or erected that requires location on the ground, or is
attached to something having location on the ground, including, without limitation, buildings.

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UNUSUAL AND COMPELLING CIRCUMSTANCES: Those uncommon and extremely rare
instances, factually detailed, that would warrant the Historic Review Board approval of a
certificate of appropriateness application due to the evidence presented.

§ 12.203 Historic Review Board

(a) Reestablishment of Board. There is hereby reestablished and continued the Historic Review
Board of the City of Fredericksburg, Texas, herein after called the Board, consisting of seven (7)
members appointed by the City Council.

(b) Qualifications. Each member of the Board shall be

(1) a resident of the City of Fredericksburg, Texas, or

(2) a resident of Gillespie County, Texas.

The Board as a whole shall generally represent the ethnic makeup of the City of Fredericksburg.
The City Council shall make appointments that will enable the City of Fredericksburg to obtain
and maintain "certified local government" status under the rules of the U.S. Historic Preservation
Act of 1966, as amended, and Title 13, Cultural Resources, Part II, Chapter 15, 13 Antiquities
Code of Texas 15.6, as amended. The Board shall include at least one (1) representative from
each of the following organizations: Gillespie County Historical Society and Fredericksburg
Heritage Federation. No fewer than two (2) members of the Board shall reside in and/or own
a city-designated historic landmark or a building or structure within a city-designated historic
district. Not less than one (1) member of the Board shall have a license, degree, or professional
experience in the field of architecture, architectural history, or historic preservation. Not less
than one (1) member of the Board shall be a historian. Not less than one (1) shall be a licensed
real estate broker. A single member of the Board may meet more than one (1) but not more than
two (2) of the residential, organizational membership, and occupational requirements of the
overall membership of the Board. All board members, regardless of background, shall have a
known and demonstrated interest, competence, or knowledge in historic preservation within the
City of Fredericksburg.

(c) Term of Appointment. Each member of the Board shall be appointed for a term of three (3)
years, except that of die first Board to be appointed under the amended ordinance, two (2) shall
be appointed to serve for two (2) years, and two (2) for one (1) year. The term shall expire on
the first day of July of the appropriate year. Any vacancy on the Board shall be filled by the City
Council for the remainder of the absent member's term. Any member of the Board who fails to
attend at least seventy-five percent (75%) of all regular meetings of the Board within any twelve
(12) month period shall be removed from the Board, unless such failure to attend was the result
of illness or other acceptable excuse as determined by the City Council.

(d) Chairman and Vice-Chairman. A majority of the members of the Board shall elect a
chairman and vice-chairman from among those members who have served at least one (1) year
as Board members. No person shall serve more than two (2) consecutive City Council appointed
terms in the same office.

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(e) Vretarv of the Board. The Secretary of the City of Fredericksburg or his/her representative
shall act as Secretary of the Board and shall attend and keep the minutes of all meetings.

(f) F.x Officio Members. The following persons, or their designated representatives shall serve
as ex officio members:

(1) The Building Official of the City of
Fredericksburg;

(2) The Secretary of the City of Fredericksburg; and

(3) The Attorney of the City of Fredericksburg.

(g) Voting Rights. Ex officio members shall have no right to vote, but shall act in an advisory
capacity, participating ftilly in discussions and assisting the Board in its various functions.

(h) Duties and Functions. The Board shall be empowered to carry out the following duties and
functions:

(1) Make recommendations for employment of staff and professional consultants
as necessary to carry out the duties of the Board;

(2) Prepare rules and procedures as necessary to carry out the business of the
Board, which shall be ratified by the City Council;

(3) Adopt criteria for the designation of historic, architectural, and cultural
landmarks and the delineation of historic districts, which shall be ratified by the
City Council;

(4) Conduct surveys to identify historically, culturally, and architecturally
significant buildings, objects, sites, structures, and areas that exemplify the
cultural, social, economic, political, or architectural history of the city or state
and to maintain an inventory of all locally designated landmarks and all
properties located in historic districts within the city;

(5) Investigate and reconunend to the City Council the designation of areas
having special historic, cultural, or architectural value as historic districts;

(6) Investigate and recommend to the City Council the designation of buildings,
objects, sites, structures, or clusters having special historic, cultural, or
architectural value as landmarks;

(7) Prepare specific design guidelines for the restoration, rehabilitation,
alteration, construction, reconstruction, or relocation of landmarks or buildings,
objects, sites, and structures within historic districts;

(8) Prepare guidelines for signage, street furniture, appurtenances, advertising
devices, and landscaping for each historic district and for landmarks;

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(9) Prepare specific design guidelines for the review of certificate of
appropriateness applications for work afl^ecting the exterior appearances of
landmarks or buildings, objects, sites, or structures within historic districts;

(10) Hold public hearings and review applications for certificates of
appropriateness for construction, reconstruction, alteration, relocation, or
demolition affecting designated landmarks, or buildings, objects, sites, or
structures within historic districts, and issue or deny certificates of
appropriateness for such actions;

(11) Testify before all boards and commissions on any matter affecting
historically, culturally, or architecturally significant areas, buildings, objects,
sites, structures, clusters, or historic districts;

(12) Review periodically the Fredericksburg Code of Ordinances and the City
of Fredericksburg Zoning Ordinance and recommend to the City Council, the
Planning and Zoning Commission, and/or any other city boards, commissions,
or agencies any amendments appropriate for the preservation and protection of
landmarks or buildings, objects, sites, and structures within historic districts;

(13) Prepare an historic preservation plan for the City which shall:

(13.1) Formulate a program for private and public action which
will state the role of various city agencies in the preservation of
landmarks and buildings, objects, sites, and structures within
historic districts;

(13.2) Make recommendations to the city government
concerning the acquisition and use of funds to promote the
preservation and/or purchase of landmarks and the preservation
of historic districts from federal sources, state sources,
foundation sources, and local private sources;

(13.3) Recommend to the proper local agencies incentives to be
offered to encourage historic preservation; and

(13.4) Formulate amendments to the Historic Preservation
Ordinance necessary to further the stated purpose and intent of
said ordinance.

The historic preservation plan shall be presented to the Planning and Zoning
Commission, along with a timetable for the adoption of the provisions of the
plan, for consideration and recommendation by the Commission to the City
Council for inclusion in the comprehensive plan for the City of Fredericksburg.
The historic preservation plan shall be updated by the Historic Review Board for
consideration for inclusion within every subsequent comprehensive plan
commissioned for the City of Fredericksburg;

247

(14) Review all proposed National Register nominations within the city of
Fredericksburg upon recommendation of the city's Historic Preservation Officer;

(15) Inform and educate the citizens of Fredericksburg concerning the historical,
cultural, and architectural heritage of the city and increase public awareness of
historic, cultural, and architectural preservation by developing and participating
in public education programs;

(16) Recommend the acquisition of a landmark or a building, object, site, or
structure within an historic district by the city government where its preservation
is essential to the purpose of this ordinance and where private preservation is not
feasible;

(17) Review and make recommendations concerning proposed tax increment
districts and special assessment districts that would affect designated landmarks
or historic districts;

(18) Recommend conferral of recognition upon the owners of landmarks or
buildings, objects, sites, or structures within historic districts by means of
certificates, markers, or plaques;

(19) Create committees from among its membership and delegate to these
committees responsibilities to carry out the purposes of this ordinance;

(20) Maintain written minutes which record all actions taken by the Commission
and the reasons for taking such actions;

(21) Prepare and submit annually to the City Council a report summarizing the
work of the Board during the previous calendar year; and

(22) Revise and adopt, within one (1) year after passage of this ordinance and
with the assistance of the Historic Preservation Officer, city legal staff, and the
Texas Historical Commission detailed rules of procedure of the conduct of its
meetings that are consistent with both Chapter 12, Article 12.200 of the
Fredericksburg Code of Ordinances and with the rules of procedure necessary to
obtain and maintain "certified local govenunent" status under the provisions of
the U.S. Historic Preservation Act of 1966, as amended, and Title 13, Cultural
Resources, Part II, Chapter 15, 13 Antiquities Code of Texas 15.6, as amended.

(i) Meetings of the Board. The Board shall meet at least once a month at a regularly scheduled
time with advance notice posted according to the Texas Open Meetings Act. Additional meetings
may be called by the Chairman, or upon written request of three members, or upon notice from
the Historic Preservation Officer, the Building Official, or his/her representative that a matter
requires urgent consideration of the Board. All meetings of the Board shall be open to the public
in accordance with the Texas Open Meetings Act. Minutes of the Board's proceedings showing
the vote shall be filed in the office of the City Historic Preservation Officer and shall be a public
record.

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(j) Meetings of Board Committees. All decisions of committees shall be subject to ratification
by the Board at its next regularly scheduled meeting. Minutes of committee proceedings showing
the vote shall be filed in office of the Historic Preservation Officer and shall be a public record.

(k) Quorum. Five (5) members of the Board shall constitute a quorum, and action taken at a
meeting of the Board shall require the affirmative vote of a majority of the members present and
voting at such a meeting unless the specific action being taken requires the affirmative vote of a
two-thirds (2/3) majority of the members present and voting on the action as specified by certain
provisions of this ordinance. A simple majority of the members of a conmiittee shall constitute
a quorum, and action taken at a meeting shall require the affirmative vote of a majority of the
members present and voting at such a meeting.

(1) Conflicts of Interest. No member of the Board shall vote on any matter that materially affects
the property, income, or business interest of that member or gives the appearance of a conflict
of interest.

§ 12.204 CITY fflSTORIC PRESERVATION OFTICER

The City Council shall, upon recommendation by the Historic Review Board and the City
Building Official, appoint a qualified individual to serve as City Historic Preservation Officer.
The Historic Preservation Officer shall administer this historic preservation ordinance and shall
advise the Historic Review Board on each application that shall come before the Board. This
person shall have expertise in historic preservation or architectural history as well as other
qualifications necessary to serve as a City Inspector under the City Building Official.

In addition to serving as representative of the Board, the City Historic Preservation Officer has
responsibility for coordinating the city's preservation activities with those of state and federal
agencies and with local, state, and national preservation organizations in the private sector.

The City Historic Preservation Officer shall recommend to the Board buildings, objects, sites,
structures, and districts for designation as landmarks or historic districts in accordance with the
criteria established by this ordinance.

The City Historic Preservation Officer may also recommend to the Board buildings, objects, sites,
structures, and districts for nomination to the National Register of Historic Places. Such
recommendations shall be guided by the criteria established in the National Historic Preservation
Act of 1966, as amended.

In addition to completing the duties and functions of City Historic Preservation Officer, the
individual hired as the City Historic Preservation Officer shall carry out the duties of a City
Building Inspector on a part time basis under the direction of the City Building Official.
However, the duties of City Historic Preservation Officer shall control the time, energy, and
loyalty of the appointed individual above his/her duties as part time Building Inspector. In order
to avoid a conflict of interest, the individual hired as the City Historic Preservation Officer shall
not issue permits, certificates of appropriateness, or violations or stop-work orders as both the
City Historic Preservation Officer and a Building Inspector on the same work project for the same
owner or applicant.

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§ 12.205 Criteria and Process for Recommending the Designation of Historic

Landmarks and Historic Districts

§ 12.205.1 Criteria for the Designation of Historic Landmarks and Historic Districts

A historic landmark or district may be designated if it:

(a) Possesses value as a visible example or reminder of the history or cultural
heritage of the community, county, state, or nation;

(b) Is the site of a significant local, county, state, or national event in history;

(c) Is an archaeological site that reveals information about the history or
prehistory of the area;

(d) Is identified with a person or persons who significantly contributed to the
development of the community, county, state, or nation;

(e) Is identified as the work of a master builder, designer, or architect whose
individual work has influenced the development of the conmiunity, county, state,
or nation;

(f) Embodies distinguishing characteristics of an architectural style valuable for
the study of a period, type, method of construction, or use of indigenous
materials;

(g) Possesses historical, architectural, or cultural character as a particularly fine
or unique example of a utilitarian structure, including, but not limited to, bams
or other agricultural outbuildings, stables, bridges, gas stations, and other
commercial structures;

(h) Is a unique location or possesses singular physical characteristics representing
an established and familiar visual feature of a neighborhood, conmiunity, or the
city;

(i) Represents a resource, whether natural or man-made, that greatly contributes
to the character or image of a defined neighborhood or community area.

(j) Possesses historical, architectural, or cultural integrity of location, design,
materials, and workmanship;

(k) Embodies character as a geographically definable area possessing a significant
concentration, linkage, or continuity of historically, architecturally, or culturally
significant sites, buildings, objects, or structures united by past events or
aesthetically by plan or physical development; and

(1) Possesses character as an established and geographically definable

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neighborhood, united by culture, architectural style, or physical plan and
development.

Additional Criteria for the designation of historic districts: Before a proposed historic district
may be recommended to the Board for designation by the City Historic Preservation Officer,
documentary evidence must be obtained which proves that at least fifty-one percent (51%) of the
owners of property located widiin the boundaries of the proposed historic district concur with the
recommendation for the designation of the proposed historic district.

§ 12.205.2 Process for Recommending the Designation of Historic Landmarks and Historic
Districts

Requests for designation shall be made on a form obtained from the City Historic Preservation
Officer. Completed request forms shall be returned to the Office of the City Historic
Preservation Officer for processing. The City Historic Preservation Officer shall recommend to
the Board buildings, objects, sites, structures, and districts for designation as landmarks or
historic districts in accordance with the criteria established in § 12.205.1 of diis ordinance.
Approved recommendations for landmark or historic district designations are then made by the
Board to the City Council through the Planning and Zoning Commission. In the event the Board
does not recommend an applicant's request for designation of a resource, the applicant may
petition the Planning and Zoning Commission for a hearing at the next scheduled meeting of the
Planning and Zoning Commission.

§ 12.206 Designation of Historic Landmarks and Historic Districts

The City Council may designate by ordinance certain areas in the City of Fredericksburg as
historic districts and certain places, buildings, objects, sites, structures, or clusters as historic
landmarks. The following provisions pertaining to the designation of historic landmarks and
historic districts constitute a part of the comprehensive zoning plan of the City of Fredericksburg.

§ 12.206.1 Historic Landmarks

(a) Property owners of proposed historic landmarks shall be sent written notice by certified mail,
return receipt requested, informing them that their properties have been recommended for
designation, stating the reasons for recommendation, and indicating the date, time, and place of
the public hearing of the Board to consider the recommended designation. Such notice shall be
sent at least thirty (30) days prior to the public hearing of the Board and shall be sent to both the
registered property owners' last known address as it appears in the Official Public Records of
Real Property of Gillespie County and the street addresses of the properties recommended for
designation. At the Board's public hearing, owners, interested parties, and technical experts may
present testimony or documentary evidence which will become part of a record regarding the
historic, architectural, or cultural importance of the proposed historic landmark.

(b) Upon recommendation of designation by a two-thirds (2/3) vote of the Board, the proposed
historic landmark designation shall be submitted to the Planning and Zoning Commission within

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thirty (30) days from the date of the formal submittal of the designation request by the Board.
The Planning and Zoning Commission shall give public notice and conduct its hearing on the
proposed designation within forty-five (45) days of the receipt of such recommendation from the
Board. Such hearing shall be in the same manner and according to the same procedures as
specifically provided in the general zoning ordinance of the City of Fredericksburg. The
Planning and Zoning Commission shall make its recommendation to the City Council within
forty-five (45) days subsequent to the hearing on the proposed designation.

(c) The City Council shall schedule a hearing on the Planning and Zoning Commission's
reconmiendation to be held within forty-five (45) days of receipt of the recommendation of the
Planning and Zoning Commission. The City Council shall give public notice, follow the
publication procedure, hold its public hearing, and make its determination on the proposed
designation in the same manner and within the same time limit as provided in the general zoning
ordinance of the City of Fredericksburg.

(d) Upon designation of a building, object, site, or structure as an historic landmark by the
affirmative majority vote of the City Council, the City Council shall cause the designation to be
recorded in the Official Public Records of Real Property of Gillespie County, the tax records of
the City of Fredericksburg, and the Gillespie Appraisal District as well as the official zoning
maps of the City of Fredericksburg. Such designation shall be in addition to any other zoning
district designation established in the zoning ordinance. All zoning maps shall reflect the historic
landmark by the letter "H" as a suffix to the use designated. The City Secretary shall send
written notice of the fact of designation by certified mail, return receipt requested, to the owner(s)
of the designated landmark within ten (10) days after the designation of the landmark by the City
Council.

§ 12.206.2 Historic Districts

(a) All owners of property within a proposed historic district shall be sent written notice by
certified mail, return receipt requested, informing them that their properties have been
recommended for designation, stating the reasons for recommendation, and indicating the date,
time, and place of the public hearing of the Board to consider the recommended designation.
Such notice shall be sent at least thirty (30) days prior to the public hearing of the Board and
shall be sent to both the registered property owners' last known addresses as they appear in the
Official Public Records of Real Property of Gillespie County and the street addresses of the
properties recommended for designation. Notice of the proposed designation of an historic
district shall be published in a newspaper having general circulation within the city at least (30)
days prior to the public hearing of the Board to consider the reconunended designation and shall
indicate the date, time, and place of the said public hearing of the Board. At the Board's public
hearing, owners, interested parties, and technical experts may present testimony or documentary
evidence which will become part of a record regarding the historic, architectural, or cultural
importance of the proposed historic district.

(b) Upon recommendation of designation by a two-thirds (2/3) vote of the Board, the proposed
historic district designation shall be submitted to the Planning and Zoning Commission within
thirty (30) days from the date of the formal submittal of the designation request. The Planning
and Zoning Commission shall give public notice and conduct its hearing on the proposed

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designation within forty-five (45) days of the receipt of such recommendation from the Board.
Such hearing shall be in the same manner and according to the same procedures as specifically
provided in the general zoning ordinance of the City of Fredericksburg. The Planning and Zoning
Commission shall make its recommendation to the City Council within forty-five (45) days
subsequent to the hearing on the proposed designation.

(c) The City Council shall schedule a hearing on the Planning and Zoning Conmiission's
recommendation to be held within forty-five (45) days of receipt of the recommendation of the
Planning and Zoning Commission. The City Council shall give public notice, follow the
publication procedure, hold its public hearing, and make its determination on the proposed
designation in the same manner and within the same time limit as provided in the general zoning
ordinance of the of the City of Fredericksburg.

(d) Upon designation of an historic district by the majority vote of the City Council, the City
Council shall cause the designation to be recorded in the Official Public Records of Real Property
of Gillespie County, the tax records of die City of Fredericksburg, and the Gillespie Appraisal
District as well as the official zoning maps of the City of Fredericksburg. Such designation shall
be in addition to any other zoning district designation established in the zoning ordinance. All
zoning maps shall reflect the historic district by the letters "HD-C" as a prefix to the use
designated for die properties within the historic district determined to be contributing to the
general character of the historic district by the nominating document completed for process of
nominating the historic district and by the letters "HD-NC" as a prefix to the use designation for
the properties within the historic district determined to be non-contributing to the general
character of the historic district by the nominating document completed for process of nominating
the historic district. The City Secretary shall send written notice of the fact of designation by
certified mail, return receipt requested, to the owners of all the properties located within die
designated historic district within ten (10) days after the designation of the historic district by die
City Council.

§ 12.207 Uses of Property Designated Historic

Nothing contained in diis ordinance or in die designation of property as being an historic
landmark or an historic district shall affect die present legal use of property. Use classifications
as to all such property shall continue to be governed by die zoning ordinance of die City of
Fredericksburg and die procedures dierein established. In no case, however, shall any use be
permitted that requires die demolition, relocation, or alteration of historic landmarks or of any
buildings or structures in an historic district so as to adversely affect die character of the district
or historic landmark, except upon compliance with the terms of this ordinance.

No provision herein shall be construed as prohibiting a property owner from continuing to use
property for a nonconforming use as diat term is defined in die City of Fredericksburg Zoning
Ordinance, §5.100.

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§ 12.208 Removal of Designation

Upon recommendation of the Board based upon new and compelling evidence and negative
evaluation according to the same criteria and following the same procedures set forth herein for
designation, a designation made under § 12.205 may be removed by the City Council following
the recommendation of the Board.

§ 12.209 Certificates of Appropriateness

No person shall carry out any construction, reconstruction, alteration, installation, maintenance,
repair, restoration, rehabilitation, demolition, or relocation of any historic landmark or any
property within a historic district, nor shall any person add, remove, or make any material change
in the light fixtures, signs, sidewalks, fences, steps, paving, or other exterior elements visible
from a public right-of-way which affect the appearance and cohesiveness of any historic landmark
or any property within an historic district without first obtaining a certificate of appropriateness
for any such action from the Historic Review Board or a permit to carry out work deemed
ordinary repair and maintenance, which excuses an applicant from obtaining a certificate of
appropriateness, from the City Historic Preservation Officer.

§ 12.209.1 Criteria for Approval of a Certificate of Appropriateness

In considering an application for a certificate of appropriateness, the City Historic Preservation
Officer (hereafter referred to as the "Officer") and the Board shall be aware of the importance
of finding a way to meet the current needs of the property owner. The Officer and the Board
shall also recognize the importance of approving plans that are economically reasonable for the
property owner to carry out.

The design guidelines authorized in § 12.203(h)(9) and adopted by the Historic Review Board,
Article 3.1000 Signs, as temporarily amended, and, where applicable, the following from The
Secretary of the Interior's Standards for the Rehabilitation of Historic Buildings, shall guide the
Officer and the Board in its considerations of applications for certificates of appropriateness.

(a) Every reasonable effort shall be made to adapt the property in a maimer
which requires minimal alteration of the building, structure, object, or site and
its enviroimient.

(b) The distinguishing original qualities or character of a building, structure,
object, or site and its environment shall not be destroyed. The removal or
alteration of any historic material or distinctive architectural features should be
avoided when possible.

(c) All buildings, structures, objects, and sites shall be recognized as products of
their own time. Alterations that have no historical basis, that seek to create a
false set of development (such as adding conjectural features or architectural
elements from other structures and properties), and that seek to create an earlier
appearance shall be discouraged.

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(d) Changes which may have taken place in the course of time are evidence of the
history and development of a building, structure, object, or site and its
environment. These changes may have acquired significance in their own right,
and this significance shall be recognized and respected.

(e) Distinctive stylistic features or examples of skilled craftsmanship which
characterize a building, structure, object, or site shall be kept where possible.

(f) Deteriorated architectural features shall be repaired rather than replaced,
wherever possible. In the event replacement is necessary, the new material
should reflect the material being replaced in composition, design, texture, and
other visual qualities. Repair or replacement of missing architectural features
should be based on accurate duplications of features, substantiated by historical,
physical, or pictorial evidence rather than on conjectural designs or the
availability of different architectural elements from other buildings or structures.

(g) The surface cleaning of structures shall be undertaken with the gentlest means
possible. Sandblasting and other cleaning methods that will damage the historic
building materials shall not be undertaken.

(h) Every reasonable effort shall be made to protect and preserve archaeological
resources affected by, or adjacent to, any project.

(i) Contemporary design for alterations and additions to existing properties shall
not be discouraged when such alterations and additions do not destroy significant
historical, architectural, or cultural material, and such design is compatible with
the size, scale, material, and character of the property, neighborhood, or
environment.

(j) Wherever possible, new additions or alterations to buildings, structures,
objects, or sites shall be done in such a manner that if such additions or
alterations were to be removed in the ftiture, the essential form and integrity of
the building, structure, object, or site would be unimpaired.

Copies of the design guidelines adopted by the Board and The Secretary of the Interior's
Standards shall be kept at the office of the City Historic Preservation Officer and shall made
available to the property owners of historic landmarks or within historic districts.

§ 12.209.2 Certificate of Appropriateness Application Procedure

(a) Prior to the commencement of any work requiring a certificate of appropriateness the owner
shall file a complete application for such a certificate with the City Historic Preservation Officer.
All applicants are strongly encouraged to first talk to the Officer about the work planned for any
designated resource, so that the Officer may advise the owner on which criteria the owner should
follow regarding the information to be included within the application. Applications for the
approval of all work not related to ordinary maintenance and repair shall contain the following:

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(1) The name, address, and telephone number of the owner(s) of the property for
which the application is being made;

(2) A detailed description of the proposed work;

(3) The intended starting date and completion date of the proposed work;

(4) Historic photographs of the property to be affected, if available;

(5) Elevation drawings of the proposed changes, if available;

(6) Samples of the materials to be used;

(7) If the proposal includes signs or lettering, a scale drawing showing the type
of lettering to be used, all dimensions, a description of materials to be used, the
method of illumination (if any, and a plan showing the sign's location on the
property;

(8) Any other information which the City Historic Preservation Officer or the
Board may deem necessary in order to visualize the proposed work.

Applications for the approval of all work intended to carry out only ordinary maintenance, and
repair shall also include all of the previous information, with the exception of numbers (5) and
(7).

Applications shall not be accepted until the application is determined by the Officer to be
complete and correct. Nor shall applications which are not in compliance with the city building
code, restrictions, or other city ordinances be accepted. They shall instead be returned to the
applicant for compliance.

(b) The City Historic Preservation Officer shall determine which applications for certificates of
appropriateness are in fact for work strictly involving ordinary maintenance and repair. Those
activities which constitute ordinary maintenance and repair include but are not restricted to:

(1) Maintenance in the form of surface cleaning using a nonabrasive cleaning
method which will in no way harm the material(s) being cleaned;

(2) Repainting;

(3) Repair using the same material and design as the original;

(4) Reroofing, using the same type of material;

(5) Repair of sidewalks and driveways using the same type of materials.

If the City Historic Preservation Officer does determine that the application for the certificate of
appropriateness is in fact for work strictly involving ordinary maintenance and repair and that,
using the guidelines required in § 12.209.2, the maintenance and repair work proposed will not

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harm or alter the exterior appearance or the historic, cultural, or architectural character of the
designated resource, then the Officer shall within seven (7) days of receiving the application
recommend the excuse of the applicant from any further obligation of receiving a certificate of
appropriateness from the Board and shall forward a copy of the application and his/her signed
permit for the work with a recommendation for excuse to the Chairman of the Board or the Vice-
Chairman of the Board if the Chairman is unavailable. The Chairman or Vice-chairman of the
Board shall within three (3) business days either approve the Officer's recommendation and sign
off on the permit to allow the ordinary maintenance and repair or schedule the decision to be
considered by the Board at its next regularly scheduled meeting. If the Chairman or Vice-
Chairman does not take any action within three (3) business days, it shall be deemed that such
person has approved the Officer's decision, and the Officer's signed permit allowing the
maintenance and repair work to be carried out shall suffice to excuse the applicant from receiving
a certificate of appropriateness for the work.

No work involving ordinary maintenance and repair shall be carried out on any historic landmark
or on any property within an historic district without a permit specifically aJlowing such work
signed by the City Historic Preservation Officer as well as by the Chairman or Vice-Chairman
of the Board (if possible) in lieu of a certificate of appropriateness. No building permit shall be
issued for the proposed ordinary maintenance and repair (if required) unless the applicant first
receives a permit from the Officer authorizing the ordinary maintenance and repair work.
Furthermore, the permit required for ordinary maintenance and repair shall be in addition to and
not in lieu of any building permit that may be required by any odier ordinance of the City Of
Fredericksburg.

(c) The City Historic Preservation Officer shall submit all completed applications for certificates
of appropriateness which he/she determines are not for the completion of ordinary maintenance
and repair to the Board for review.

(d) The Board shall review the application at a regularly scheduled meeting within sixty (60)
days from the date the completed application is received by the City Historic Preservation
Officer. An opportunity will be provided for the applicant to be heard during the review of the
application at the Board meeting. The Commission shall approve, deny, or approve with
modifications the application within forty-five (45) days after the review meeting. In the event
the Board does not act within ninety (90) days of the receipt of the application by the City
Historic Preservation Officer or fails to approve, deny, or approve with modifications the
application within forty-five (45) days after the review meeting, the application shall be deemed
approved by the Board. A certificate of appropriateness shall be issued by the City Historic
Preservation Officer, acting as the representative of the Board, showing die filing date and die
failure to take action on the application within ninety (90) or within forty-five (45) days after the
review meeting.

(e) The applicant may withdraw the application on or before the day of the Board's review of the
application and may resubmit it at a later time if additional time is required for the preparation
of information or for research requested by the Board. Such withdrawal by the applicant shall
release the Board of its obligation to make a decision on the application. Upon resubmission of
the application, the Board shall again review the application at a regularly scheduled meeting
within sixty (60) days from the date of the refiling of such an application with the City Historic
Preservation Officer.

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(f) The Board may delay the hearing on an application for thirty (30) days or until the next
scheduled meeting of the Board, whichever is shorter, if the Board feels additional information
is absolutely necessary and required in order to evaluate an application in a fair manner. Such
a delay of shall suspend the forty-five (45) day time period during which the Board must deny,
approve, or approve with conditions the application until a complete hearing is held on the
application at the next meeting at which it has been rescheduled for a hearing.

(g) All decisions of the Board shall be in writing. The Board's decision shall state its findings
pertaining to the approval, denial, or modification of the application. A denial may indicate what
changes in the proposed actions would meet the conditions for protecting the distinctive character
of the landmark or historic district. A copy shall be sent to the applicant by registered mail.
Additional copies shall be filed as part of the public record on that property and distributed to
the Office of the City Historic Preservation Officer and all appropriate city departments,
commissions, and agencies.

(h) An applicant for a certificate of appropriateness dissatisfied with the action of the Board
relating to the issuance or denial of a certificate of appropriateness shall have the right to appeal
to the City Council within thirty (30) days after receipt of notification of such action. The City
Council shall give notice to the appellant, follow publication procedure, and hold a hearing in the
same manner as provided in the City of Fredericksburg Zoning Ordinance. The appellant shall
have the right to attend the hearing and the right to be heard as to his/her reasons for filing the
appeal. In making its decision, the City Council shall consider the same criteria for the approval
of a certificate of appropriateness as did the Board, established in § 12.209.2 of this ordinance;
the written report of the Board pertaining to the denial of the certificate to the applicant; and any
other matters presented at the hearing on the appeal. If the City Council approves the
application, it shall direct the Board to issue a certificate of appropriateness for the work
requested to the applicant. If the Board disapproves the application, it shall direct the Board not
to issue a certificate of application to the applicant.

(i) No building, demolition, or signage permit shall be issued for any of the work requiring a
certificate of appropriateness until a certificate of appropriateness has first been issued by the
Board. The certificate of appropriateness required by this ordinance shall be in addition to and
not in lieu of any type of building, demolition, or signage permit that may be required by any
other ordinance of the City of Fredericksburg.

§ 12.209.3 Certificate of Appropriateness Requirements for Demolitions

A permit for the demolition of an historic landmark or property within an historic district,
including secondary buildings and landscape features, shall not be granted by the Building Official
or an other city official, without the issuance of a certificate of appropriateness by the Board, as
provided for in § 12.209, Subsections 12.209.1 and 12.209.2, of this ordinance. Applications for
certificates of appropriateness for demolitions of properties designated "non-contributing" within
an historic district shall be subject to the criteria for approval and application procedures as
outlined in § 12.209, Subsections 12.209.1 and 12.209.2. However, since the demolition of a
historic landmark or a property designated as "contributing" within an historic district constitutes
an irreplaceable loss to the quality and character of the City of Fredericksburg, requirements in

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addition to those listed in § 12.209, Subsections 12.209.1 and 12.209.2, are to be met in cases
of applications for certificates of appropriateness for demolitions for historic landmarks and
properties designated as "contributing" within historic districts.

Whenever an application for a certificate of appropriateness for the demolition of an historic
landmark or a property designated "contributing" within an historic distria, which is complete
according to the requirements in Subsection 12.209.2(a), is submitted to the City Historic
Preservation Officer, the Officer shall submit the application to the Board for review. However,
the Board shall not hold a public hearing to review the application for sixty (60) days from the
date the application is received by the City Historic Preservation Officer. This time period is
intended to permit the City Historic Preservation Officer to discuss the proposed demolition
informally with the property owner, other city officials, and local preservation organizations, to
see if an alternative to demolition can be found before a formal consideration of the application
by the Board. The City Historic Preservation Officer shall prepare a report to the Board
analyzing alternatives to demolition, and request from other city departments, commissions, or
agencies information necessary for the preparation of this report.

If within this sixty (60) day period any one of the following four events shall occur, the Board
may defer hearing the application for six months, and it shall be considered to have been
withdrawn by the applicant during such six-month period: (1) the owner shall enter into a
binding contract for the sale of the property; (2) approved arrangements shall be made for the
structure to be moved to an approved new location; (3) loans or grants from public or private
resources have been secured which eliminate the need for demolition; or (4) building code
modifications or changes in applicable zoning ordinance provision, including variances, have been
secured which eliminate the need for demolition. But if within the sixty (60) day period none
of the four events summarized above shall have occurred, the Board shall schedule a hearing of
the application following the expiration of the sixty (60) day period to be held within sixty days
of the expiration date of the first sixty (60) day period required for negotiations with the City
Historic Preservation Officer. The application will then be subject to the application procedures
required in Subsections 12.209.2(d)-(i), with the date of the expiration of the sixty (60) day
period required for negotiations with the City Historic Preservation Officer replacing the initial
date the City Historic Preservation Officer received the application and with modifications to
Subsections (f), and to the Criteria for Approval required in Subsection 12.209.1. After the
expiration of the initial sixty (60) day negofiation period without the occurrence of any one of the
four events summarized above, the City Historic Preservation Officer shall also request the
Building Official to prepare a report on the state of repair and structural stability of the building
or structure for which an application to demolish has been filed. This report shall be presented
to the City Historic Preservation Officer prior to the date of the Board's hearing on the
demolition permit application, and it shall become part of the administrative record on the
application.

In Subsection 12.209(f), the Board may delay the hearing on an application for the demolition
of an historic landmark or a property designated as "contributing" within an historic district for
thirty (30) days in order to assure itself that one of the four possibilities summarized above which
the City Historic Preservation Officer endeavored to make occur has not in fact become a
possibility in regards to eliminating the need for the demolition of the property in question given
the additional time since the conclusion of initial negotiations. The presence of such a possibility
is information which is absolutely necessary and required in order to evaluate an application in

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a fair manner. Such a delay of shall suspend the forty-five (45) day time period during which
the Board must deny, approve, or approve with conditions the application until a complete
hearing is held on the application at the next meeting at which it has been rescheduled for a
hearing.

§ 12.209.4 Refiling of Applications for Certificates of Appropriateness

When an application for a certificate of appropriateness is denied by the Historic Review Board,
or the City Council on appeal, no new application of like nature shall be accepted by the City
Historic Preservation Officer or scheduled for a hearing by the Board for a period of twelve (12)
months following the date of denial. However, upon receipt of a written request by the original
applicant describing substantially changed conditions since the prior consideration of the
application to justify an earlier consideration of the application, the Board may waive the
mandatory delay period and authorize the acceptance of a new application.

§ 12.209.5 Enforcement of Work Performed Pursuant to a Certificate of Appropriateness

All work performed pursuant to a Certificate of Appropriateness shall conform to the work
approved of or approved of with modifications by the Board in granting the certificate of
appropriateness and to all other requirements included herein. It shall be the duty of the City
Historic Preservation Officer to periodically inspect any such work to assure compliance. If work
is found that is not performed in accordance with the certificate of appropriateness issued, or
upon notification of such fact by the Board and verification by the Building Official, the Building
Official shall issue a stop-work order, and all work shall immediately cease. No further work
shall be undertaken on a project while a stop-work order is in effect, and the person(s) found to
be responsible for the violation of the work approved or approved with modifications in the
certificated of appropriateness granted shall be subject to the penalties and remedies available
under § 12.217 of this ordinance.

§ 12.210 Economic Hardship Application Procedure

(a) After receiving written notification from the Board of the denial of certificate of
appropriateness, an applicant may commence the hardship process. No building, demolition, or
signage permit shall be issued unless the Board makes a finding that a hardship exists for the
applicant.

(b) When a claim of economic hardship is made based on the effect of this ordinance, the owner
must prove by clear and convincing evidence that:

(1) The property is incapable of earning a reasonable return, regardless of
whether that return represents the most profitable return possible;

(2) The property cannot be adapted for any other use, whether by the current
owner or by a purchaser, which would result in a reasonable return; and

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(3) Efforts to find a purchaser interested in acquiring the property and preserving
it have failed;

The applicant shall submit all materials deemed sufficient by the applicant to satisfy the previous
three requirements, along with the applicant's name, address, and telephone number, to the City
Historic Preservation Officer, who shall in turn submit the application to the Board for review;

(c) The applicant shall consult in good faith with the Board, local preservation groups, and
interested parties in a diligent effort to seek an alternative that will result in preservation of the
property. Such efforts must be shown to the Board.

(d) The Board shall hold a public hearing on the application within sixty (60) days from the date
the application for an economic hardship waiver is received by the City Historic Preservation
Officer. An opportunity will be providal for the applicant to be heard during the review of the
application at the Board meeting. Following the hearing, the Board has thirty (30) days in which
to acknowledge the existence of an economic hardship and grant a certificate of appropriateness
for the work originally requested or to deny the existence of an economic hardship and reaffirm
its decision to deny the original application for a certificate of appropriateness. In the event that
the Board does not act within ninety (90) days of the receipt of the application, a certificate of
appropriateness shall be issued by the City Historic Preservation Officer, acting as the
representative of the Board, acknowledging the existence of an economic hardship, showing the
filing date, and showing the failure to take action on the application within ninety (90) days after
the review meeting;

(e) All decisions of the Board shall be in writing. A copy shall be sent to the applicant by
registered mail and a copy filed with the City Historic Preservation Officer and the City Secretary
for public inspection. The Board's decision shall state the reasons for granting or denying the
economic hardship application for a certificate of appropriateness;

(f) An applicant for a certificate of appropriateness dissatisfied with the action of the Board
relating to the issuance or denial of a certificate of appropriateness after a hearing on the
applicant's economic hardship application shall have the right to appeal to the City Council within
thirty (30) days after the receipt of notification of such action. The City Council shall give notice
to the appellant, follow publication procedure, and hold a hearing in the same manner as provided
in the City of Fredericksburg Zoning Ordinance. The appellant shall have the right to attend the
hearing and to be heard as to his/her reasons for filing the appeal. In making its decision, the
City Council shall consider the written report of the Board pertaining to the issuance or denial
of the hardship application for the certificate to the applicant. If the City Council approves the
application, it shall direct the Board to issue a certificate of appropriateness for the work
requested to the applicant. The Board shall then comply with the ruling of the City Council and
issue the certificate of appropriateness to the applicant.

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§ 12.211 Unusual and Compelling Circumstances Application Procedures for the

Approval of a Certificate of Appropriateness for the Demolition or Removal
of an Historic Landmark or a Property Designated "Contributing" Within an
Historic District

(a) When an applicant for a certificate of appropriateness for the demolition or removal of an
historic landmark or a property designated as "contributing" within an historic district fails to
prove an unreasonable economic hardship under the application procedure allowed in § 12.210,
the applicant may provide the City Historic Preservation Officer additional information which
may show unusual and compelling circumstances in order to receive a certificate of
appropriateness for the proposed demolition or removal. The City Historic Preservation Officer
shall submit the information (the application) to the Board for review;

(b) The Board shall hold a public hearing on the application within sixty (60) days from the date
the application is received by the City Historic Preservation Officer. An opportunity will be
provided for the applicant to be heard during the review of the application at the Board meeting.
Following the hearing, the Board has thirty (30) days in which to acknowledge the existence of
unusual and compelling circumstances and grant a certificate of appropriateness for the work
originally requested or to deny the existence of unusual and compelling circumstances and
reaffirm its decision to deny the original application for a certificate of appropriateness. In the
event that the Board does not act within ninety (90) days of the receipt of the application, a
certificate of appropriateness shall be issued by the City Historic Preservation Officer, acting as
the representative of the Board, acknowledging the existence of unusual and compelling
circumstances, showing the filing date, and showing the failure to take action on the application
within ninety (90) days after the review meeting;

(c) The Board, using its best judgement, shall determine whether unusual and compelling
circumstances exist and whether or not existing circumstances should override the need to protect
the historic, cultural, or architectural significance from demolition by means of a denial of a
certificate of appropriateness. In making its judgement, the Board shall be guided by the criteria
set forth in § 12.209, Subsection 12.209.1, and by the following additional considerations:

(1) The historic or architectural significance of the building, object, site, or
structure;

(2) The importance of the building, object, site, or structure to the integrity of
an historic disfrict (if applicable) or area;

(3) The difficulty or the impossibility of reproducing such a building, object, site,
or structure because of its design, texture, material, detail, or unique location;

(4) Whether the building, object, site, or structure is one of the last remaining
examples of its kind in the neighborhood, the county, or the region;

(5) Whether there are definite plans for the reuse of the property if the proposed
demolition is carried out, and what effect such plans will have on the
architectural, cultural, historical, social, or environmental character of the
surrounding area as well as the economic impact of the new development;

262

(6) Whether reasonable measures can be taken to save the building, object, site,
or structure from further deterioration, collapse, arson, vandalism, or neglect
(here the Board may refer to the report completed by the Building Official on the
state of repair and structural stability of the building or structure for which the
application to demolish was initially filed, which is part of the administrative
record on the original application for the certificate of appropriateness to
demolish).

(d) All decisions of the Board shall be in writing. A copy shall be sent to the applicant by
registered mail and a copy filed with the City Historic Preservation Officer and the City Secretary
for public inspection. The Board's decision shall state the reasons for granting or denying the
unusual and compelling circumstances application for a certificate of appropriateness;

(e) An applicant for a certificate of appropriateness dissatisfied with the action of the Board
relating to the issuance or denial of a certificate of appropriateness after a hearing on the
applicant's unusual and compelling circumstances application shall have the right to appeal to the
City Council within thirty (30) days after the receipt of notification of such action. The City
Council shall give notice to die appellant, follow publication procedure, and hold a hearing in the
same manner as provided in the City of Fredericksburg Zoning Ordinance. The appellant shall
have the right to attend the hearing and the right to be heard as to his/her reasons for filing the
appeal. In making its decision, the City Council shall consider the written report of the Board
pertaining to the issuance or denial of the unusual and compelling circumstances application for
the certificate to the applicant. If the City Council approves the application, it shall direct the
Board to issue a certificate of appropriateness for the work requested to the applicant. If the
Board disapproves the application, it shall direct the Board not to issue a certificate of application
to the applicant.

§ 12.212 Requirements Following the Issuance of a Certificate of Appropriateness for

the Demolition or Removal of an Historic Landmark or a Property
Designated as "Contributing" within an Historic District

(a) The owner(s) of a property who have been granted a certificate of appropriateness for the
demolition or relocation of an historic landmark or a property designated as "contributing" within
an historic district shall assist in and cooperate ftilly with the efforts of the City Historic
Preservation Officer to gain as much knowledge as needed or possible about the particular
building, object or structure and to fully document the property before the building, structure,
or object is relocated or demolished.

(b) Following the demolition or removal of an historic landmark or of a property designated
"contributing" within an historic district, the owner or other person having legal custody and
control thereof shall:

(1) remove all traces of previous construction, including the foundation;

263

(2) grade, level, sod, and seed the lot to prevent erosion and improve drainage;
and

(3) repair at his/her own expense any damage to public rights-of-way, including
sidewalks, curbs, and streets that may have occurred in the course of removing
the building, object, or structure and its appurtenances.

§ 12.213 Prevention of Demolition by Neglect

(a) All historic landmarks and all buildings, objects, sites, and structures within historic districts,
whether occupied or not, shall be preserved against decay and deterioration and kept free from
certain structural defects by the owner thereof or such other person(s) who may have legal
custody and control thereof. The owner or other person(s) having such legal custody, in keeping
with city's minimum housing standards, shall repair such building, object, site, or structure if it
is found to have any of the following defects:

(1) A deterioration or inadequate foundation. Defective or deteriorated flooring
or floor supports or flooring or floor supports of insufficient size to carry
imposed loads with safety;

(2) Members of walls, partitions, or other vertical supports that split, lean, list,
or buckle due to defective material or deterioration. Members of walls,
partitions, or other vertical supports that are of insufficient size to carry imposed
loads with safety;

(3) Members of ceilings, roofs, ceiling and roof supports, or other horizontal
members which sag, split, or buckle due to defective materials or deterioration.
Members of ceilings, roofs, ceiling and roof supports, or other horizontal
members that are of insufficient size to carry imposed loads with safety;

(4) Fireplaces or chimneys which list, bulge, or settle due to defective material
or deterioration. Fireplaces or chimneys which are of insufficient size or
strength to carry imposed with safety;

(5) Deterioration or ineffective waterproofing of exterior walls, roofs,
foundations, or floors, including broken windows or doors. Defective protection
or lack of weather protection for exterior wall coverings, including lack of paint
or weathering due to lack of paint or other protective covering. Any fault or
defect in the building which renders same structurally unsafe or not properly
watertight;

(6) Deterioration of any other feature so as to create a hazardous condition which
could lead to the claim that demolition is necessary for the public safety.

In addition, the owner or other person(s) having legal custody and control of an historic landmark
or a building, site, object, or structure located within an historic district shall keep all property,

264

including vacant property, clear of all weeds, fallen trees or limbs, debris, abandoned vehicles,
and all other refuse.

(b) The Board, on its own initiative, shall file a petition with the Building Official requesting that
he/she proceed under the City of Fredericksburg's minimum housing and structural safety
standards to require correction of defects or repairs to any structure covered by subsection (a)
above so that such structure shall be preserved and protected in accordance with the purpose of
this ordinance.

(c) If any historic landmark or any building, object, or structure within an historic district shall
have to be demolished as a public safety hazard and the owner (s) shall have received two or more
notices from a city inspector of building neglect in violation of this and any other city ordinance,
no application for a certificate of appropriateness for a project on the property may be considered
for a period of two years from the date of the demolition of the historic landmark or building,
object, or structure within the historic district. Additionally, no permit for a curb cut needed for
the operation of a surface parking lot shall be granted by any city office during this period.

§ 12.214 Public Safety Hazards and Emergency Securing Measures

No building, object, or structure designated a landmark or located within an historic district may
be demolished in whole or in part as a hazard to public safety until the City Historic Preservation
officer has been notified by the Building Official that an order for such demolition is being
prepared, and the Board has had an opportunity to discuss with the Building Official and any and
all other municipal officials involved the feasibility of emergency measures to secure the unsafe
structure in such a manner as to preclude the possibility of injury to the public.

After emergency measures are undertaken, the City Historic Preservation Officer shall meet with
the Building Official and any and all other municipal officials involved wishing to issue the order
for demolition to review the condition of the structure and the development of plans for its
rehabilitation. If within one (1) month the City Historic Preservation Officer, after consultation
with the owner(s) of the property and the municipal legal staff, makes a report acceptable to the
Board on the feasibility of a successfiil rehabilitation of the building, object, or structure, the
Board shall make a recommendation to the Building Official that the demolition permit be
rescinded on the condition that the owner(s) of the property complete the planned rehabilitation
so that the building, object or structure complies with all applicable public safety standards. If,
however, after one (1) month no feasible scheme for the further protection of the building, object,
or structure has been developed in cooperation with the owner(s) of the property, the Board shall
make a recommendation to the Building Official for an order of demolition.

§ 12.215 Procedure for Requesting Public Ownership or Control of Designated

Properties

If the Board finds that a historic landmark or a property located within an historic district cannot
be preserved and is in danger of being lost under the certificate of appropriateness procedures

265

set forth in Sections 12.209, 12.210, and 12.21 1, the Board shall recommend to the City Council
that the endangered designated property be acquired by a gift, devise, or purchase by ftinds
donated or granted by individuals, public groups, state agencies, or federal agencies.

§ 12.216 Applicability and Enforcement of the Ordinance in its Entirety

§ 12.216.1 Applicability

The provisions of this ordinance shall apply to all places, objects, sites, structures, or property
within the current municipal limits of the City of Fredericksburg that are privately owned and
owned by the City of Fredericksburg.

§ 12.216.2 Enforcement of the Ordinance in its Entirety

(a) Responsibilities of the Citv Historic Preservation Officer

Along with the enforcement of work performed pursuant to a certificate of appropriateness
provided in subsection 12.209.5 of this ordinance, the City Historic Preservation Officer shall
be responsible for conducting periodic exterior inspections of all historic landmarks and all
property within every historic disUict, so that every property designated under this ordinance
shall be inspected at least once per year, in order to promote compliance with all provisions of
this historic preservation ordinance and swiftly remedy all violations of the provisions of this
ordinance. All violations not covered in subsection 12.209.5 of this ordinance shall be reported
by the City Historic Preservation Officer to the City Attorney, and the person(s) found to be
responsible for the violation(s) shall be subject to the penalties and remedies available under §
12.217 of this ordinance.

(b) Responsibilities of the City Attorney

It shall be the duty of the Attorney of the City of Fredericksburg to legally pursue the conviction
of all alleged violators of the provisions of this historic preservation ordinance to the fiill extent
necessary and possible in a court of competent jurisdiction pursuant to the penalties and remedies
available under § 12.217 of this ordinance.

§ 12.217 Penalties and Remedies

(a) Civil.

(1) Any person, firm, or corporation who constructs, reconstructs, alters,
restores, renovates, relocates, stabilizes, repairs, or demolishes any building,
object, site, or structure in violation of this ordinance shall be required to restore
the building, object, site, or structure to its appearance or setting prior to the
violation. An action to enforce this provision shall be brought by the City of
Fredericksburg. This civil remedy shall be in addition to, and not in lieu of, any

266

criminal prosecution and penalty.

(2) If demolition or removal of an historic landmark or of any building, object,
site, or structure located within an historic district occurs without a certificate of
appropriateness for such action, then any permits on subject property will be
denied for a period of three (3) years. In addition, the applicant shall not be
entiUed to have issued to him/her/it by any city office a permit allowing any curb
cuts on subject property for a period of three (3) years from and after the date
of such demolition or removal. Nor shall a parking lot for vehicles be operated
on the site for a period of three (3) years ft-om and after the date of such
demolition or removal. The owner(s) of the site shall also maintain the site in
a clean and orderly state and shall properly maintain all existing trees and
landscaping on the site. When these restrictions become applicable to a particular
site, the Board through the City Historic Preservation Officer shall cause to be
filed a verified notice thereof in the Official Public Records of Real Property of
Gillespie County, the tax records of the City of Fredericksburg, and the records
of the Gillespie Appraisal District, and a temporary mark, "D/RPEN" (standing
for Demolition/Removal Penalty), shall be placed on the subject property in the
official zoning maps of the City of Fredericksburg for a period of three (3) years.
Such restrictions shall then be binding on future owners of the property. The
restrictions imposed shall be in addition to any fines imposed pursuant to the
criminal penalties listed in subsection (b) below and the cumulative remedies
listed in subsection (c) below.

(b) Criminal

Any persons, firm, or corporation violating any provision of this ordinance shall be guilty of a
misdemeanor, and each shall be deemed guilty of a separate violation for each day during which
any violation hereof is committed. Upon conviction, each violation shall be punishable by a fine
not to exceed one thousand dollars ($1,000.00).

(c) Cumulative Remedies

The provisions of this Section shall apply in addition to other enforcement procedures or penalties
which are available and applicable under the violation(s) of any and all other city ordinances.

§ 12.218 Severability

It is hereby declared to be the intention of the City Council that the sections, paragraphs,
sentences, clauses, and phrases of this ordinance are severable, and, if any phrase, clause,
sentence, paragraph, or section of this ordinance shall be declared unconstitutional by the valid
judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect
any of the remaining phrases, clauses, sentences, paragraphs, and sections of this ordinance, since
the same would have been enacted by the City Council without the incorporation of any such
unconstitutional phrase, clause, sentence, paragraph, or section.

267

§ 12.219 Expiration Date and Provisions Tor the Permanent

Adoption of this Temporary Amended Ordinance

(a) This ordinance, temporarily amending in its entirety Article 12.200 Historic Preservation of
the Fredericksburg Code of Ordinances, shall expire thirty (30) days after the exact day that
marks the fourth anniversary of the enaction of this temporary amended historic preservation

ordinance by the City Council, on (month) (day) . 20 , unless this temporary ordinance

is permanently enacted as an amendment in its entirety of Article 12.2(X) Historic Preservation
of the Fredericksburg Code of Ordinances upon the vote of the City Council at a public hearing
specifically held to evaluate the performance of and community satisfaction with this ordinance.
Said public hearing shall give the citizens of Fredericksburg, interested parties, and technical
experts the opportunity to present testimony in favor or against the permanent enaction of this
ordinance by the City Council. The City Council shall give public notice of the hearing, follow
publication procedure, hold its public hearing, and make its determination in the same manner
as provided in the general zoning ordinance of the City of Fredericksburg. Said public hearing
shall be held within thirty (30) days of the exact day which marks the fourth anniversary of the
enaction of this temporary ordinance by the City Council.

(b) If this temporary, amended ordinance is allowed to expire upon the vote of City Council, the
original Article 12.200 Historic Preservation of the Fredericksburg Code of Ordinances amended
by this ordinance shall reapply in its entirety and be enforced as the law controlling historic
preservation in the City of Fredericksburg immediately upon the expiration of this temporary,
amended ordinance.

(c) Upon the expiration of this temporary, amended ordinance and the reapplication of the
original Article 12.2(X), those persons serving as members of the Historic Review Board under
the requirements of § 12.203 of this temporary, amended ordinance shall continue to serve until
the expiration of their present terms and shall then be replaced, if necessary, by persons fulfilling
the requirements of § 12.204(c) of the original Article 12.200. However, the office of City
Historic Preservation Officer shall immediately be abolished, and the Building Official shall
resume his/her role in assisting the Historic Review Board as established by the original Article
12.200.

(d) All properties designated as historic landmarks or located within historic districts designated
under § 12.205 of this temporary, amended ordinance shall remain designated properties under
and subject to the provisions of the original Article 12.200 unless a property's designation is
repealed by the City Council because of a- lack of conformance to the criteria for designation
established in § 12.204(a)(2) or § 12.204(b)(2) of the original Article 12.200.

268

APPENDIX C: CITY OF FREDERICKSBURG
HOTEL OCCUPANCY TAX

269

ARTICLE 1.400 HOTEL OrrTIPANCY TAX*

§ 1.401 Definitions

The following words, terms and phrases are, for the purposes of this article and except
where the context clearly indicates a different meaning, defined as follows:

Consideration. The cost of the room, sleeping space, bed or dormitory space but shall not
include the cost of any food served or personal services rendered to the occupant not related
to cleaning and readying such room or space for occupancy, and shall not include any tax
assessed for the occupancy thereof by any other governmental agency.

Hotel. Any building or buildings, trailer, or other facility in which the public may, for
consideration, obtain sleeping accommodations. The term shall include hotels, motels,
tourist homes, houses or courts, lodging houses, inns, rooming houses, trailer houses,
trailer motels, dormitory space where bed space is rented to individuals or groups,
apartments not occupied by permanent residents, as that term is hereinafter defined, and all
other facilities where rooms or sleeping facilities or space are furnished for a consideration.
As defined herein "hotel" shall not include hospitals, sanitariums or nursing homes.

Occupancy. The use or possession, or the right to the use or possession of any room,
space or sleeping facility.

Occupant. Anyone who, for a consideration, uses, possesses, or has the right to use or
possess any room or rooms, or sleeping space or facility in a hotel under any lease, access,
license, contract or agreement

Permanent resident. Any occupant who has or shall have the right of occupancy of any
room or rooms or sleeping space or facility in a hotel for at least thirty (30) consecutive
days during the current calendar year or preceding year. (Ordinance of 10-7-74, Section 1)

Person. Any individual, company, corporation, or association owning, operating,
managing or controlling any hotel.

Quarterly period. The regular calendar quarters of the year, the first quarter being
composed of the months of January, February, and March; the second quaner being the
months of April, May, and June; the third quaner being the months of July, August, and
September; and the fourth quarter being the months of October, November, and December.

Tax Collector. The tax collector of the City of Fredericksburg. (Chapter 20, Section 20-
81, Code of 1965)

§ 1.402 Tax Levied; Amount; Exceptions

(a) There is hereby levied a tax upon the cost of occupancy of any room or space
furnished by any hotel where such cost of occupancy is at the rate of two dollars ($2.00) or
more per day, such tax to be equal to seven (7) percent of the consideration paid by the
occupant of such room to such hotel, exclusive of other occupancy taxes imposed by other
governmental agencies. (Ordinance 4-088, Section 1, adopted 1 1-14-88)

(b) No tax shall be imposed hereunder upon a permanent resident.

SUte Law reference — Authority to levy hotel occupancy tajt. V.T.C.A., Tax Code, ch. 351.

270

(c) No tax shaU be imposed hereunder upon a corporation or association organized and
operated exclusively for reUgious, charitable or educational purposes, no pan of the net
earnings of which inures to the benefit of any private shareholder or individual. (Chapter
20, Section 20-82, Code of 1965)

§ 1.403 Collection of Tax

Every person owning, operating, managing or controlling any hotel shall coUeci tiie tax
imposed by Section 1.402 hereof for the City of Fredericksburg. (Chapter 20, Secnon 20-
83, Code of 1965)

§ 1.404 Filing of QuartcFly Report

On die last dav of the naondi following each quarterly period, every person required in
Section 1.403' hereof to collect the tax imposed herein, shall file a report with the tax
collector showing the consideration paid for all room occupancies in die preceding quaner.
the amount of the tax collected on such occupancies, and any odier information the tax
collector mav reasonablv require. Such person shall pay the tax due on such occupancies at
the time of filing such report. There shall also be furnished to the tax collector ot_the City
of Fredericksburg at the time of payment of said tax a copy of the quaneriy repon filed with
the State CompODller in connection widi the State of Texas hotel occupancy tax. (Chapter
20, Section 20-84, Code of 1965)

§ 1.405 Authority to Promulgate Rules and Regulations;
Access to Books and Records

The tax colleaor shall have die power to make such rules and regulations as are reasonable
and necessary to effectively collect die tax levied hereby, and shaU, upon reasonable nonce,
have access to books and records necessary to enable him/her to determine die correcmess
of any repon filed as required by diis article and the amount of taxes due under the
provisions of this article. (Chapter 20, Section 20-85, Code of 1965)

§ 1.406 Reimbursement for Cost of Collecting Tax*

Every person required in Section 1.403 to collect the tax imposed by tiiis anicle, may
deduct and withhold from die payment lo the tax collector, as reunbursement for die cost of
collecting die tax, an amount not to exceed one (1) percent of die amount of tax collected
and required to be reported to die tax collector. (Chapter 20, Section 20-86, Code of 1965)

§ 1.407 Failure to Collect Tax, Make Reports and Pay Tax

If any person required by die provision of this article to collect die tax imposed herein, or
make reports as required herein, and pay to die tax collector the tax imposed herein, shall
fail to coUea such tax, file such repon or pay such tax, or if any such person shall file a
false report, such person shall be deemed guiltv of a misdemeanor and upon conviction be
punished by fine not to exceed two hundred doUars ($200.00) and shall pay to the tax
collector the tax due, together widi a penalty of five (5) percent of die tax due for each diirry
(30) days tiiat the same is not timely filed and shall forfeit die reunbursement for die cost of
collecting the tax. (Chapter 20, Section 20-87, Code of 1965)

'state Law reference— Reimbursemeni for tax collection expense, V.T.C.A.. Tax Code, § 351.005.

271

§ 1.408 Tax Applies to Extraterritorial Jurisdiction

The Hotel Occupancy Tax Ordinance of die City of Fredericksburg, as amended, and as
may be amended, shall apply to all territory within the extraterritorial jurisdiction of the City
of Fredericksburg as the same may exist from time to time, and the same shall be and is
hereby imposed on all applicable persons within the said extraterritorial jurisdiction of the
City of Fredericksburg. (Ordinance 5-047 adopted 10-28-91)

§ 1.409 State Tax Code Applicability

Administration of this article is to be done in accordance with state law provisions
regarding hotel occupancy taxes found at V.T.C.A., Tax Code, ch. 351. (Ordinance
adopting Code)

272

BIBLIOGRAPHY

Primary Sources

Interviews

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Fredericksburg, Texas, 4 January 1996.

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Fredericksburg, Texas, 29 August, 1995.

Buford, Sharon, Secretary, Gillespie County Historical Society. Conversations with author,
Fredericksburg, Texas, 25 & 28 August, 1995.

Calcott, Steve, Historic Preservation Officer, Washington, D.C.. Conversation with author,
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Goodwin, Debra, Director of Planning, New Braunfels, Texas. Conversation with author. New
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273

Klein, Stan, AIA, member, Fredericksburg Historic Review Board. Conversation with author,
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274

Ordinances and Other Government Documents

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Vernon's Texas Codes Annotated: Agriculture. Vol. 2. St. Paul, MN: West Publishing
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275

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Table of Cases

City of Dallas v. Crownrich, 506 S.W. 2d, 654 (Tex.Civ.App.- Tyler 1974, writ ref d n.r.e.).

Connor v. City of University Park, 142 S.W. 2d 706 (Tex.Civ.App. - Dallas 1940, writ refd).

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279

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