In Charleston, the Board of Architectural Review serves a vitally important role. Originally enacted in 1931 by city ordinance, the first role of the BAR was to ensure that traditional building styles continued throughout the historic district. Thirty-six years later, the BAR's role expanded to encompass a dually important role: reviewing the proposed demolition of buildings within the historic district to ensure that no structures of architectural significance were destroyed. Given Charleston's growing recognition as a tourism destination, the importance of the BAR's gatekeeping function cannot be overstated.
As Charleston continues its transition into the 21st century as a center for tourism, hospitality, and manufacturing, development on the peninsula has tested the boundaries of the BAR. Infill projects and the proliferation of new construction have transformed the city, prompting neighborhood and preservation groups to look to the BAR as a last refuge to prevent the development they see as undesirable. When controversial projects have come before the BAR, the pitched battled between developers and preservationists often has resulted in scrutiny of the board's procedures and decision-making process. When a proposed project is particularly prominent, that scrutiny has sometimes escalated to legal action, specifically lawsuits challenging the basis or authority for the BAR's contested decision.
When the BAR approved a modern design for the Clemson Architecture Center on Meeting Street earlier this year, the Historic Charleston Foundation sued the city, seeking to overturn the decision. That suit was resolved when Clemson withdrew the design; without question, the lawsuit factored into Clemson's decision to pull the project. Similarly, the Beach Company has recently sued the city seeking to overturn the BAR's decision to reject the developer's plans for the current Sergeant Jasper site. The basis for the Beach Company's challenge is the claim that the BAR's decision was "arbitrary and capricious"— legalese for not being based on any particular standard.
The Beach Company and the Historic Charleston Foundation were both right. Like any affected property owner, these organizations have the right to challenge a municipal board when that board is inconsistent or haphazard in its decision-making process. BAR members do not follow any set standards or guidelines telling them which new buildings to approve or disapprove. Board members may rely on individual tastes or any other criteria they wish to consider when evaluating an application, and they need not indicate the basis for their decision when voting. In this regard, the decisions of BAR members are purely subjective and can vary wildly from meeting to meeting. They need not follow staff recommendations or guidance given through previous board comments. Towards that end, applicants or property owners with sizable investments at stake may have no remote idea how the board may ultimately vote on their project nor any recourse when a project is summarily rejected for vague or non-existent criteria. Similarly, in the case of the proposed Clemson Architecture Center, a board created to preserve the historic character on the peninsula can somehow end up approving a modern travesty which was wildly out of place with its surroundings.
Normally, a lawsuit should not be filed every time a municipal board makes a controversial decision. But the common thread between recent BAR challenges and the criticisms leveled in the recently released report by architect Andres Duany underscore significant inherent flaws with the board's current constitution. Neither preservation nor prudent development are served by having a process devoid of set standards or a process without any transparency or hint of predictability.
A careful reading of the Beach Company's court filings reveal that it is not seeking to abolish the BAR, but rather to invalidate what it sees as an arbitrary decision based on constitutional grounds. An applicant should not have to sue the city to get a project approved which was recommended by city staff, endorsed by the mayor, and met all applicable zoning regulations. The BAR will most certainly continue to exist after the current challenge, but the suit may do exactly what Historic Charleston's did with the Clemson Architecture Center — force a settlement and a much needed re-evaluaiton of the BAR's policies and procedures.