IN OUR SUPPORT:

an affidavit from the Director of Graduate Studies in Historic Preservation at Cornell University, an amicus brief from the National Trust for Historic Preservation, and a Memorandum of Law from the Preservation League of New York State -- all filed on behalf of our law suit.






A Few of the Many Letters from State Agencies about the Inn / Market Project

The State Historic Preservation Office (OPRHP) and the
Department of Enivronmental Conservation (DEC)





NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORIC PRESERVATION

July 11, 2001
Village of Aurora Planning Board
Aurora, New York 13026

Dear Ms. Gil:

The Office of Parks, Recreation and Historic Preservation (OPRHP) is writing to follow-up our telephone conversation about the project noted above, which is currently before the Aurora Village Planning Board for review under the State Environmental Quality Review Act (SEQRA). We appreciate the opportunity to explain that our lack of comment does not represent a lack of interest in the project or its impacts to historic resources. On the contrary, OPRHP would like to comment as an interested party under SEQRA, and appreciates the planning board chair requesting our in-depth review of the HOLT submission for the project.

The Aurora Inn and Vanderipe Building

The Aurora Inn was listed in the National Register of Historic Places on November 19, 1980 as part of the Aurora Village-Wells College Historic District. The Vanderipe Building was also listed at that time. Both structures are cited as contributing components to the district.

The State Environmental Quality Review Act (SEQRA) makes it clear that an action to be directly undertaken, funded or approved by an agency will be considered a Type 1 action if it is an "Unlisted Action (unless the action is designed for the preservation of the facility or site) occurring wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site that is listed on the National Register of Historic Places...." 617.4(b)(9).

Thus, the buildings' status means that they must be considered "historic" by municipal agencies conducting reviews under SEQRA, by federal agencies obligated to consider the impacts under the National Historic Preservation Act, and by state agencies required to evaluate project impacts under Section 14.09 of the Parks, Recreation and Historic Preservation Law.

Furthermore, the Aurora Inn is an extremely rare and intact surviving example of an early 19th century inn in New York State. It is one of only a handful of this building type----including a former inn in Lewiston, the Union Hotel in Sacketts Harbor and the Spring House in Pittsford. As such, its protection deserves every consideration under applicable state and federal laws.

While the Inn has been renovated at various times in its history, most of these changes are additive---not subtractive---and are easily reversed. (This concept was explained when Mr. Hoard first called our office to discuss the project. Additive changes are those that rehabilitate a building without removing historic material, much like the work executed to create an accessible room at the Inn's first floor: the arches were filled with studs and sheetrock, but the trim was retained and the original condition is easily discerned.) The floor plan is also largely intact: each floor contains the broad front-to-back central hall that is typical of Federal period architecture.

It also appears that some portions of the building may have received very high-quality Colonial Revival improvements. If this is the case, these, too, have acquired significance in their own right and are as worthy of protection as the original Federal-era features.

For these reasons, OPRHP considers the Inn to be extremely significant and its integrity very high.

Incorrect Assumptions

It appears that some of the planning performed by HOLT and the decisions made by the Village may be based on incorrect information. For example:

a) The Certificate of Appropriateness issued by the Community Preservation Panel (CPP) states that the board considered "the pertinent historical significance of the structures, which we have determined that although they are old and we are used to them, are not particularly rare or unique or wonderful in their own right, as defined by the phrase 'Historical Significance' (sic)." As stated above, both buildings are considered "historic" under state and federal environmental review laws.

b) The April 12, 2001 HOLT report "Proposed Renovation of the Aurora Inn" states "Although the Inn and the Vanderipe Building are not listed as ocal or national landmarks, the Village of Aurora is listed in the National Register of Historic Places, automatically triggering historic review of the project" (page 1). The buildings are recognized as historic at the national evel (see above).

c) The HOLT report also states on page 6 that "...the Americans with Disabilities Act ("ADA") does not grandfather existing conditions. The ADA requires building owners to make buildings accessible to the maximum extent feasible." While part of that statement is correct---buildings are not grandfathered under ADA---it does not explain that historic buildings are exempt from ADA's provisions when full compliance would threaten or destroy significant historic character or fabric. OPRHP, in its role as the State Historic Preservation Office or SHPO, is the authority designated under federal law to provide that finding. No such request was received for this project.

Impacts to Historic Resources

The Secretary of the Interior's Standards for the Treatment of Historic Properties define Restoration as "the act or process of accurately depicting the form, features, and character of a property as it appeared at a particular time by means of the removal of features from other periods in its history and reconstruction of missing features from the restoration period."

The HOLT report uses the term "interior restoration" to describe the proposed work, which is misleading because the submitted plans indicate that this is a "gut rehab" in which all interior walls and features---even original or later historic walls, trim, doors and character-defining elements like fireplace mantels---will be removed. The new proposal bears no resemblance to the historic condition: even the characteristic front-to-back hall will be rotated 90 degrees so as to run from side-to-side. Work of this nature, which essentially ignores the significant qualities of an historic building, cannot be characterized as restoration, preservation or even appropriate rehabilitation.

Any one of the following would trigger a finding of Adverse Effect/Impact under state or federal law:

a) The razing of the Vanderipe Building, which is listed in the National Register of Historic Places as a contributing component of the Aurora Village-Wells College Historic District;

b) The complete gutting of the Aurora Inn, which is listed in the National Register of Historic Places as a contributing component of the Aurora Village-Wells College Historic District;

c) The proposal to impose a new plan on the Aurora Inn that bears no relationship to this significant structure's historic character.

We also note that none of the material submitted by HOLT or the Village documents the structural deficiencies noted in the CPP approval. In fact, photographs submitted by HOLT indicate that this is (or was recently) a functioning grocery with coolers and other heavy equipment in place.

The building proposed to replace the Vanderipe Building does not reflect the proportions or detailing of historic structures from this period. If the Vanderipe Building is unsound, or its rehabilitation and reuse is documented to be infeasible for other reasons, this part of the larger project should be revised to better reflect conditions in the historic district.

OPRHP can also advise you that most of the Village and the historic district is archeologically sensitive, and that an archeological survey by archeologists meeting federal professional criteria is recommended unless substantial prior ground disturbance can be documented (see attached archeology comments).

Recommendations

OPRHP recommends that the sponsor work with our office to revise the current plan and develop a scheme that respects the Aurora Inn and the Vanderipe Buildings' historic significance and meets the Secretary of the Interior's Standards for the Treatment of Historic Properties. If the project remains unrevised, we feel that it exceeds the Type I thresholds defined by SEQRA and an Environmental Impact Statement (EIS) should be prepared.

Coordination with other Agencies

While the HOLT report justifies much of the work is necessary to meet applicable building codes, OPRHP understands that Wells College has submitted a petition for relief from the provisions of the New York State Uniform Fire Prevention and Building Code regarding fire-safety requirements, including construction type of the lowest level of an existing building, opening protectives, stair width, balconies of combustible construction, combustible eaves and fire area.

Per our agreement with the Department of State, which administers the Code, OPRHP advises that agency that this project, as proposed, cannot be considered a "preservation project" and therefore does not qualify for any of the exemptions allowed by the Uniform Code for projects at historic properties where work meets the preservation standards.

OPRHP also requests the opportunity to comment on this undertaking as an Interested Agency under SEQRA, and asks that all OPRHP correspondence for the project be incorporated in the official SEQRA record for it.

We also remind the Village and the sponsor that the involvement of a federal or state agency---through funding, guarantees, licenses, permits or approvals, or through work performed pursuant to federal delegation or mandate---triggers formal review by this office under Section 106 of the National Historic Preservation Act of 1966 and Section 14.09 of the Parks, Recreation and Historic Preservation Law, respectively. This would include actions like the construction of a dock, which has been discussed in the Village since the National Register-listed Aurora Grist Mill was partially razed in 1992 without proper permits or review.

Given the persistence of this rumor, even as part of this proposal, OPRHP recommends that the sponsor commit its pledge to not build a dock at this property, and that the pledge become part of any permits, approvals or findings issued by the Planning Board or other municipal entities in the Village of Aurora.

While OPRHP was looking forward to this afternoon's meeting and the chance to discuss preservation issues with the Village, the sponsor and their consultants, we are pleased to learn that the Village has retained an attorney to assist with its SEQRA responsibilities, that it has decided to classify the undertaking as a Type I action and start the SEQRA process anew, and that it will not allow any work- including removals or preparatory demolition- to occur until the SEQRA process is complete. Because we understand that the stop work order may have been lifted, we ask that you coordinate that matter with other Village officials to see that historic resources are protected. We appreciate your commitment to work with us to resolve this matter, and look forward to a productive working relationship...

Sincerely,
Richard M. Lord
Historic Sites Restoration Coorinator




NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORIC PRESERVATION

August 10, 2001
Village of Aurora Planning Board
Aurora, New York 13026

Dear Ms. Gil:

The Office of Parks, Recreation and Historic Preservation (OPRHP) is writing to provide additional information for the project noted above, which is currently before the Aurora Village Planning Board for review under the State Environmental Quality Review Act (SEQRA). As the state agency responsible for coordinating state and federal preservation programs and encouraging local preservation efforts, OPRHP would like to provide the comments below to assist in fulfilling your responsibilities under the State Environmental Quality Review Act (SEQRA).

The August 9, 2001 edition of The Citizen contained a letter to the Editor titled "Right Facts for Aurora" by Edward Heslop et.al. which speaks to some aspects of this undertaking. OPRHP would like to respond to the misstatements contained in that letter, in the order presented.

1. The statement that "The inn is a splendid historic building, which has been altered/ remodeled no fewer that six times´┐1⁄2leaving little original configuration" is not true. Our June 11, 2001 letter to you, which was based on a very complete photographic survey prepared and submitted by the sponsor's architects, cited intact significant and character-defining front-to-back corridors, parlors and a wealth of trim that would warrant protection under state and federal historic preservation and environmental review laws.

The statement "Where so little original detail remains, good restoration practice demands respectful remodeling is carefully put in place with appropriately designed and functional interiors" is also not true. "Good restoration practice" in fact mandates real restoration, which is defined as "the act or process of accurately depicting the form, features, and character of a property as it appeared at a particular period of time by means of the removal of features from other periods in its history and reconstruction of missing features from the restoration period." The proposal submitted by the sponsor's architects for our comment does not meet that test.

OPRHP would like to stress that we are not lobbying for restoration, although we could certainly support that approach: most of the projects this office reviews use standards for rehabilitation, which is the "the act or process of making possible compatible use for a property through repair, alterations, and additions while preserving those portions or features which convey its historical, cultural, or architectural values" (emphasis added). As you know from our June 11 letter, the proposal submitted by the sponsor's architects for this office's comment does not meet this test either.

2. The letter also states that "Any environmental impact study would be restricted to the exterior impact as even the most historic buildings are given virtually a free hand in interior modernizations." As the State Historic Preservation Office (SHPO) under federal law, OPRHP reviews more than 6500 projects annually and can attest to the fact that this statement is not true. State and federal preservation laws and SEQRA take into account the impact of the entire undertaking, including interior work, related demolitions, new construction and sitework and archeological impacts.

The statement that "´┐1⁄2an environmental impact study required on one building within the designated historic district would establish the precedent that all exterior renovations to any building within the district be treated similarly" is both inaccurate and misleading.

Under SEQRA the decision as to whether an Environmental Impact Study (EIS) should be prepared is not tied to a particular work item like exterior renovation, but rather to the impact of the overall project: interior and exterior work, demolition, new construction, related sitework and archeological impacts must all be considered. Because that decision is based on a case-by-case evaluation of the impacts related to and resulting from the project at hand, it is incorrect to assume that an EIS for this project would lock the Village into requiring an EIS for all other projects solely because they include exterior work.

Also, because the threshold for preparing an EIS is already established in SEQRA regulations 6 NYCRR Part 617, this undertaking would not establish a new precedent: actions either have significant impacts under SEQRA and require an EIS, or they don't.

3. The statement that "All renovations/restorations must comply with building codes and regulatory requirements" is misleading because it infers that historic preservation is inconsistent and incompatible with contemporary life safety codes. That is not the case: nearly all of the 6500 projects we review each year successfully integrate historic preservation and modern upgrades, access and/or life safety issues---very few result in a final determination of Adverse Effect. One example that might be germane to your deliberations is the Roycroft Inn in East Aurora: this National Historic Landmark (NHL) property was sympathetically rehabilitated in consultation with our office, took advantage of federal tax credits available to such projects, and remains in use as an inn.

Further, the New York State Uniform Fire Prevention and Building Code includes a petition process that allows for variances in order to meet other state mandates, and historic preservation is one of those mandates. (Perhaps the writers are unaware that the proposal they wrote to support does not meet the NYS Building Code: the sponsor has already requested variances with respect to construction type of the lowest level of an existing building, opening protectives, stair width, balconies of combustible construction, combustible eaves and fire area.)

The Americans with Disabilities Act (ADA) also provides variance procedures when full compliance would threaten or destroy the character of an historic property, and in its role as the SHPO this office makes that determination under federal law. Neither the sponsor nor their architects have requested our assistance with variances that would allow for a more respectful rehabilitation of these significant historic properties.

The sponsor and the Village do not have to choose between a sensitive rehab project and a viable, safe, up-to-date and attractive Aurora Inn---each of these goals can be achieved.

4. No part of the statement that "the Vanderipe Building is less than 80 years old but has multiple code violations compromising safety, which make it impossible or overwhelmingly costly to rehabilitate" has been documented by the sponsor. In fact, the photographs they provided this office indicate that the building is in use and heavy equipment is in place.

If the Planning Board is asked to consider economic hardship, it must take into account the true total cost of each alternative and avoid a scenario of "comparing apples and oranges." For example, the Board must compare the cost of renovating Vanderipe to the cost of all hazard abatement, demolition costs and landfill fees, development costs, planning fees and construction costs associated with the preferred alternative (razing Vanderipe and constructing a new building on this site). The burden of proof with respect to claims of structural deficiency or economic hardship rests with the applicant, and the environmental review record should be clear and complete so as to avoid legal challenge and avoid setting a bad precedent.

5. Finally, the letter's SEQRA citation "Actions that never require an EIS: Rebuilding or replacement of facilities, in kind, on the same site" is misleading on two counts. First, that part of the regulations [617.5(c)(2)] refers to Type II actions---which are likely to have little or no impact---and not to Type I actions. Because your August 2, 2001 letter to Mr. Ralph Manna, Jr. of the Department of Environmental Conservation (DEC) advised that the Planning Board had already determined that the undertaking exceeds the SEQRA thresholds and should be classified as Type I, the SEQRA provisions cited in the letter are irrelevant in the context of this project.

Further, readers will be misled because the writers omitted a critical qualifying clause of the SEQRA regulations. The full citation reads:

The following actions are not subject to review under this Part: replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site, including upgrading buildings to meet building or fire codes, unless such action meets or exceeds any of the thresholds in section 617.4 of this Part.

SEQRA Part 617.4(b)(9) is clear that an action to be directly undertaken, funded or approved by an agency will be considered a Type 1 action if it is an "Unlisted Action (unless the action is designed for the preservation of the facility or site) occurring wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site that is listed on the National Register of Historic Places´┐1⁄2."

In closing, OPRHP would like to stress that this is not an either-or situation despite that fact that some in the community continue to pose the situation in those terms. There are hundreds of examples across the state in which sponsors have integrated preservation with contemporary building codes and systems, enhanced their properties and their projects, and qualified for federal tax credits in the process. Because there are three significant and irreversible impacts or impairments to historic resources identified as important under SEQRA, we continue to recommend that the Planning Board ask the sponsor to prepare an EIS. This will diffuse previously-aired public concerns over procedural issues and a lack of available information, it will provide more information and a sounder basis for the Board's final decision, and it is the best way to ensure the overall legal defensibility of the project. For these reasons, we feel that it is also the most expeditious way to progress this important development project without further substantial delay.

OPRHP again extends our offer to travel to Aurora to tour the Aurora Inn, the Vanderipe Building and the Aurora Village-Wells College Historic District and answer questions from the sponsor, Village officials and the public. We also reiterate our willingness to work with you to evaluate historic resource impacts and identify prudent and feasible project alternatives. OPRHP also requests that you include these comments in the official SEQRA record for this undertaking. Please telephone me at ... with any questions you may have.

Sincerely,
Richard M. Lord
Historic Sites Restoration Coordinator

enc: 8/9/01 letter from The [Auburn] Citizen

cc: Mr. Ralph Manna, Jr., NYS DEC, Syracuse; Mayor Thomas Gunderson, Village of Aurora; Ms. Nancy Yann, Aurora Village Clerk; Ms. Bonnie Bennett, Chair, Zoning Board of Appeals; Mr. Avery Ayers, Chair, Community Preservation Panel; Mr. Ken Kabelac, Aurora Village Planning Board; Mr. James Orman, Aurora Village Planning Board; Ms. Patricia Rittenhouse, Aurora Village Planning Board; Mr. Robert Fitzgerald, Aurora Village Planning Board; Mr. Ed Brockner, AuroraBuilding Inspector; Ms. Lisa Ryerson, President, Wells College; Aurora Coalition, Aurora; Tania Werbizky, Preservation League of New York State




NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Division of Environmental Permits
615 Erie Boulevard West, Syracuse, NY 13204-2400

August 16, 2001

Bonnie Bennett, Chair, Village of Aurora Zoning Board of Appeals
Nancy Gil Chair, Village of Aurora Planning Board

Re: Aurora Inn Project

Dear Ms. Bennett and Ms. Gil:

This is is response to a telephone call from Ms. Bennett, of this date.

I have attempted to provide guidance on the procedural questions put to me by each of you in as timely and professional a manner as possible. The two major themes which seem to continue to come up are the full extent of the SEQR review obligation and the appropriateness of the historic preservation issues within the review.

With regard to the former, I now understand that my lead agency coordination response of August 7th has been interpreted to mean that the Inn's interior is not subject to consideration in the environmental review. That is certainly not my position. It is also completely contrary to the intent of the law and the various references in regulations which I have repeatedly provided regarding the requirement to examine the entirety of the project. All related aspects of the project, including interior considerations, should be examined in the environmental review and a conclusion should be drawn based on the record of that review. In a similar vein, I will again note that the examination of parking needs as a separate element of the review (per the EAF) appears not to be adequately justified for the record. I also understand that the transfer of village owned or claimed property has also been removed from the consideration, apparently without justification in the record.

With regard to the latter issue, DEC continues to underscore the importance of the Inn and the Aurora Historic District as set forth quite clearly by the NYS Office of Parks, Recreation, and Historic Preservation. The environmental review should reflect those resources, accordingly.

Given the gravity of the issues and the lack of clear justification in the current record, I hope that these informational gaps will be filled and due consideration given to the historic environment before any irrevocable steps ar taken.

I hope this addresses your questions. Thank you for your cooperation and interest.

Respectfully,
Ralph Manna, Jr.
Regional Permit Administrator




NEW YORK STATE OFFICE OF PARKS, RECREATION, AND HISTORIC PRESERVATION

August 16, 2001
Ms. Nancy Gil, Chair, Village of Aurora Planning Board

Dear Ms. Gil:

The Office of Parks, Recreation and Historic Preservation (OPRHP) is writing to provide additional information for the project noted above, which is currently before the Aurora Village Planning Board for review under the State Environmental Quality Review Act (SEQRA). As the state agency responsible for coordinating state and federal preservation programs and encouraging local preservation efforts, OPRHP would like to provide the comments below to assist in fulfilling your responsibilities under the State Environmental Quality Review Act (SEQRA).

1. SEQRA Part 617.3(g)(1) speaks to the scope of review for Lead Agencies:

Actions commonly consist of a set of activities or steps. The entire set of activities or steps must be considered the action, whether the agency decision-making relates to the action as a whole or to only a part of it. Considering only part or a segment of an action is contrary to the intent of SEQR.

This seems clear that the Planning Board must consider the impact of the entire undertaking---including interior work---when considering impacts or their significance under SEQRA, regardless of its specific jurisdiction. (For example, if your purview is site plan review, you must still consider all other aspects of the project when determining the undertaking's type and significance under SEQTA.)

2. SEQRA Part 617.7(a) speaks to the preparation of Environmental Impact Statements (EIS):

The lead agency must determine the significance of any Type I or Unlisted action in writing in accordance with this section. To require an EIS for a proposed action the lead agency must determine that the action may include the potential for at least one significant adverse environmental impact. To determine that an EIS will not be required for an action, the lead agency must determine either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant (emphasis added).

3. SEQRA Part 617.7(c)(1) speaks to the criteria for determining significance:

To determine whether a proposed Type I or Unlisted action may have a significant adverse impact on the environment, the impacts that may reasonably be expected to result from the proposed action must be compared against the criteria in this subdivision. The following list is illustrative, not exhaustive. These criteria are considered indicators of significant adverse impacts on the environment.

Criterion (v) of that subdivision states:

the impairment of the character or quality of important historical, archeological, architectural, or aesthetic resources or of existing community or neighborhood character.

The subdivision goes on to state:

For the purpose of determining whether an action may cause one of the consequences listed in paragraph (1) of this subdivision, the lead agency must consider reasonably related long-term, short-term, direct, indirect and cumulative impacts, including other simultaneous or subsequent actions which are: included in any long-range plan of which the action under consideration is a part; likely to be undertaken as a result thereof; dependent thereon.

The significance of a likely consequence (i.e. whether it is material, substantial, large or important) should be assessed in connection with: its setting (e.g. urban or rural); its probability of occurrence; its duration; its irreversibility; its geographic scope; its magnitude; and the number of people affected.

4. Taking these items in sequence, OPRHP feels that the Planning Board:

a.) should consider all related work in its SEQRA review, including the proposal to gut the Aurora Inn, which is listed in the National Register of Historic Places;

b.) should require an EIS if it identifies an adverse environmental impact under SEQRA;

c.) should determine that the gutting of the Inn, the removal of an historic addition that contributes to its significance, and the razing of the Vanderipe Building---a property also listed in the National Register of Historic Places and therefore considered significant and of value under SEQRA --will have a significant and irreversible adverse impact on the environment under SEQRA.

5. OPRHP would also like to call your attention to the fact that the Planning Board's notice declaring its intent to establish itself as lead agency did not include the Village's Environmental Assessment Form/EAF (we received a copy from a member of the public), did not provide the required 30-day timeframe for making this decision, and was not initially copied to all parties identified in your EAF. It did also not include the Zoning Board of Appeals (ZBA) as a potentially involved party, even though the issue of an easement had been identified at the time the EAF was prepared. This appears to be inconsistent with the requirements of 617.6(b)(3)(I) and 617.3(d), which states that "the lead agency will make every reasonable effort to involve project sponsors, other agencies and the public in the SEQR process." Because this may be considered a procedural flaw in the context of SEQRA, you might want to bring this to the attention of your counsel.

6. To ensure the overall defensibility of this process and the Village's environmental review record, OPRHP again offers its assistance to help you identify impacts to historic resources and identify feasible alternatives, and encourages you to contact Ralph Manna, Jr. at the Department of Environmental Conservation (DEC) to discuss appropriate SEQRA procedures.

While we could not connect yesterday or today, and have as of this writing been unable to arrange for a tour of the properties in question, I look forward to meeting you at tonight's Planning Board meeting in the Village...

Sincerely,
Richard M. Lord
Historic Sites Restoration Coordinator




Return HOME