Why State College Borough Council Discussed Potentially Repealing HARB Ordinance

Residents of State College's historic districts were surprised and concerned by an item that appeared on borough council's work session agenda on Monday night: a discussion about potentially repealing the ordinance that established the Historical Architectural Review Board .

After all, the issue had not been mentioned at previous public meetings this year, and a motion to add a sunset clause to the ordinance in 2023 was soundly defeated .

As it turned out, the hourlong discussion offered little cause for worry. Council members did not appear to seriously entertain ending the HARB, and a straw poll — an official vote could not be taken during a work session — showed no interest in advancing a repeal to a future voting meeting.

The discussion, council president Evan Myers explained, arose from a recent executive session during which council members were briefed about an ongoing lawsuit against the borough over the denial of an application in 2022 to demolish a home in the Holmes-Foster/Highlands Historical District.

In that case, Penn State Ventures LLC, which is affiliated with Burkentine Properties, sought to raze the 1938 Sears “Lynnhaven” home at 420 E. Foster Ave. based on an economic hardship provision. Representatives of the company said renovating the home was too costly and they wanted to replace it with a new single-family home.

After a public hearing, the HARB, which is only advisory, contended the renovation costs were overstated and recommended denying a Certificate of Appropriateness. Council concurred with the recommendation and rejected Burkentine's request.

Burkentine argues it was denied due process because council did not accept additional testimony or a presentation from the builder when it voted on the HARB's recommendation. The borough counters that it followed the HARB ordinance, which is authorized through Pennsylvania's Historic District Act.

The lawsuit is scheduled for a bench trial on Aug. 21 in the Centre County Court of Common Pleas. At council's Aug. 1 executive session — where it is permitted to discuss legal, real estate and personnel matters in private — a member asked about how repealing the ordinance might impact the lawsuit.

That veered into policy deliberation, which must occur in public meetings.

"Any discussion of policy is addressed in open council meetings and work sessions like this one," Myers said. "We do so not only because it is in the Pennsylvania Sunshine Law to do that, but because we believe it's the right thing to do... So since that crossed the line into policy, we immediately stopped any discussion of that and moved it to a public meeting where the light of transparency and the public will inform how we proceed."

After an overview of the historic districts and HARB by Planning Director Ed LeClear and discussion among members, council ultimately decided to leave the ordinance as is.

Years of discussion and effort led to the passage of an ordinance in 2017 to establish the College Heights and Holmes-Foster/Highlands Historic Districts. The districts include 274 "contributing" residential properties in College Heights and 706 in Holmes-Foster/Highlands that are governed by the ordinance. Those properties were identified in 1995 as part of a process for having the neighborhoods listed in the Nation Register of Historic Places, which in itself does not provide for any protections from demolition or additions.

The 2017 ordinance also established, as required by state statute, the HARB, an advisory board that offers feedback to property owners looking to alter a contributing property and makes recommendations to council on applications for Certificates of Appropriateness for full or partial demolition, additions, conversions and new construction.

State College's HARB ordinance is "much less regulatory from an oversight standpoint," LeClear said, than those in places such as Bellefonte or Carlisle, where contributing properties are also reviewed for alterations, such as what kind of roofing material or windows can be used.

Since it went into effect in 2018, the HARB has reviewed 32 applications and recommended denial of three. Among those, council ultimately has denied only one — the case currently under litigation.

The average review time for a HARB application is 38 days, LeClear said.

"The majority of the reasons that time will take longer, and I would argue that this is actually the HARB doing its job, is usually when an applicant comes in, they'll get review and comment from the HARB, and there will be good suggestions made by the review body," LeClear said. "The applicant will take those back and then work on revising the design and bring that back. So we'll have cases where there might be a month or two that goes by where they're going back and forth."

Costs for the HARB process average out to about $1,100 per month, LeClear said, including an outside historic preservation consultant with a current rate of $2,100 per review and about $24,500 in planning staff time.

Without the historic district ordinance, contributing properties would only be subject to zoning codes — and demolition or construction of single-family homes and duplexes would not be reviewed by planning commission or any other local government board.

A historic district ordinance is effectively the only mechanism available to a Pennsylvania municipality to control design, LeClear said.

"It's very, very challenging to regulate design through zoning," LeClear said. "In fact, it's almost impossible. The courts have always found that zoning ordinances should not be trying to regulate design... I just want to make sure everyone is aware that we wouldn't be able to fall back on the zoning ordinance on design. Obviously, we can fall back on the zoning ordinance from bulk, location, height, density requirements, etc., but not design."

Asked about the community surveys and other preparations that led to the 2017 ordinance, and the possibility of conducting another survey, LeClear said the total process cost was at least $150,000 and involved about 15 meetings and more than 100 hours of staff time.

"I would not support reopening that can of worms, because there's an inherent asymmetry in citizen voice in these discussions, as we're starting to learn nationally," council member John Hayes said. "When you ask people in a community about their community, they're happy to tell you about it, but you're missing all the people that would like to live in that community that don't live in that community. So I don't think getting back into the field with a new survey is a good use of resources in terms of staff time or, frankly, simply dollars."

Council member Matt Herndon said he would like to survey the people who have gone through the HARB process, but did not believe revisiting the ordinance would be useful.

"I certainly think what we're doing on zoning work, what we're doing on bike safety, those are far more impactful things to spend our time on than this," Herndon said. "I would like to hear from the people who've made applications. I think it'd be great to just have a small survey of them rather than the entire community. Most of them were approved. Did they think it was a useful process? Did they support it now? That's an easier survey to do than the entire community. And I think that would be simple. I don't feel the need to rush an action on this one. Because again, like I said, I think, we should be focusing our time on much bigger issues."

HARB Chair Eric Boeldt said during public comment that, with the exception of two people, all the feedback he has seen from those who have gone through the process has been positive, including one for whom the board recommended denial.

"When you get six people or seven people looking at somebody's project with fresh eyes, you can see how it could be tweaked," Boeldt said. "And when you talk to an architect, you tell the architect what you want, and they'll give it to you. OK, but that isn't necessarily the best. When you have seven other people saying, 'No, you don't want to do that because of this,' all of a sudden the architect also sees that point."

Boeldt said he was surprised to see the discussion on the agenda, but after hearing the background, understood and was appreciative of the council's support.

He was among a half dozen residents who came prepared to speak in support of the HARB.

John Oliveira's College Heights home is a contributing property. A historic district is a draw for many potential residents he said, and "preservation of architecture in particular is valuable in maintaining the character of an area, as well as ensuring the continued quality of the neighborhood."

"You have a thousand properties protected. You've got a malcontent who is willing, yes, to go to a law firm, but that's why you have courts to settle this," Oliveira said. "But certainly, when you take a look at a 96% approval rate, they're very reasonable additional requirements of our HARB versus other HARBs that mandate specific windows and the like. I think you just have to put this down to somebody who wants their way, and has hired a lawyer to do that."

Holmes-Foster resident Ron Madrid said the agenda item caused a "sort of hysteria within the community." Before learning the reason for the discussion, he wondered if council was considering repealing the HARB either because it impeded some members' vision for the future of density and zoning in the borough or in case the borough lost the court case.

"The HARB is an asset to you as council and to us as a community, providing you a means to review and ... possibly control the destruction and mindless alteration to designated properties within our historic districts," he said. "... Bottom line, the HARB is an asset to us all, and it should not be repealed."

Council member Nalini Krishnankutty said the original process for developing the historic districts was "well-considered" and involved substantial community involvement. She had no interest in tinkering with the ordinance, but said that even if council were to make changes, it would need to be a similarly deliberative process.

"If we were to do anything, it's not something to do lightly. It's not something to take action quickly," Krishnankutty said. "I would rather leave it as it is, and if we are to think about something, it's something that must involve the communities impacted."

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