As far as the NHR, our fate lies in the hand of the National Registry Keeper

May 30, 2021
By Marcy Shortuse

BY SUSAN HANAFEE – A representative of Florida’s Department of State has conceded that the effort to list part of Boca Grande’s residential district on the National Register of Historic Places has been stopped by objections from local property owners. 

And yet, under guidelines of the National Historic Preservation Act of 1966, an appeal of local rulings defeating the proposal can continue at the state level, and even up to the U. S. Department of Interior and its National Park Service, which oversees the National Register.

If it reaches the federal level, it will be up to the Keeper of the National Register – an individual who appears to have absolute power in historic matters – to decide if Boca Grande is eligible to be listed on the National Register … even if the listing won’t happen. 

That’s how Department of State Representative Jon Morris outlined the bureaucratic process in a letter to Lee County officials dated May 17.

County Attorney Amanda Swindle said the letter from Morris to Lee County Attorney Richard Wesch appears to raise as many questions as it answers, and will be the topic of an upcoming phone call between the two entities.

“We do not feel that this response is satisfactory, given its failure to address important aspects of state and federal law,” Swindle said when sharing Morris’ letter with The Beacon.

Morris began his two-and-a-half-page letter – a response to earlier missives from Wesch – by suggesting that “although we understand you have concerns about the process” the state is simply following federal law in allowing Mikki Hartig, the Sarasota consultant who nominated this portion of residential Boca Grande to the National Register listing, to pursue her appeal.

State officials have said that Hartig’s proposal is on the agenda for the August 6 meeting of Florida’s National Register Review Board, despite being rejected three times by Lee County boards, and formally opposed by more than 50 percent of the property owners affected by Hartig’s proposal.

The bottom line, Morris pointed out, is that what state and local officials do in regard to the National Register has little impact on decisions by Joy Beasley, a National Park Service employee who has served as the Keeper since 2018. Beasley has a degree in anthropology from the University of Georgia and a master’s degree in applied anthropology from the University of Maryland.

In an attempt to school Lee County officials, Morris cites a 1999 case – Moody Hill Farms Limited Partnership vs U. S. Dept. of the Interior – which was heard in the U. S. Court of Appeals for the Second Circuit, and which seems to cement the Keeper’s control over all things historic. 

In that case, the appeals court confirmed that the Keeper has “independent authority to determine whether a property should be listed, even where a nomination initially comes through a state preservation program. Indeed, the regulations require that even where there is a disagreement within a state program about a property’s eligibility for listing, such nominations must be forwarded to the Keeper, along with an explanation of the disagreement,” the court said.

In the 1999 case, neighbors worked successfully to list their community, Coleman Station in Dutchess County, N.Y., on the state and national registers of historic places. Their actions were taken in opposition to a composting facility and organic farm operated by Moody Hill Farms Limited Partnership in Coleman Station. Neighbors made no effort to hide their feeling that the farm and compost pile were a threat to the district’s traditional character.

Moody Hills challenged the New York listing on procedural grounds in state court and had the state historic listing removed. They then petitioned the Keeper to have the national listing annulled. After the Keeper denied their petition Moody Hills filed suit, alleging violations of the Administrative Procedures Act and their due process rights.

When the New York Supreme Court ruled in favor of Moody Hill Farms, the National Park Service appealed and won. Although Coleman Station is no longer on the New York State Register of Historic Places, it remains on the National Register.

Even as Morris was explaining the court-endorsed power of the Keeper, he was seeking to reassure the county that Boca Grande residents also have some control.

“Again, I will reiterate so it is not left for confusion. Because a majority of the property owners have objected to the Boca Grande nomination, the district will not be listed in the National Register unless enough notarized objections are withdrawn to bring the objections below the majority threshold [of less than 50 percent],” he wrote. “Because the appeal was filed, the nomination proceeds to the next reviewing authority, along with the material the prior reviewing authorities produced in its review. Ultimately, if appealed to the highest authority, the National Park Service would make a determination as to whether the property meets the evaluation criteria. But as stated above, in the present case this would solely be for a determination of eligibility – not a determination to actually list the property in the National Register.”