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The Preservation Police

Are Mary O'Neil and her cohorts going too far to retain Burlington's charm?


Published September 22, 2010 at 9:47 a.m.

To hear some people tell it, the most powerful person in Burlington City Hall isn’t Mayor Bob Kiss or his forceful right-hand man Jonathan Leopold. It’s a historic preservation specialist named Mary O’Neil who works for the Department of Planning and Zoning from a basement room off Church Street.

O’Neil’s official job title is associate planner, and she’s one of three city employees with that position. She holds a master’s degree in historic preservation from the University of Vermont and is the city’s resident expert on local architecture.

Unofficially, however, O’Neil is the city’s preservation police, patrolling the construction beat and arresting the progress of those who would erase the past.

Burlington’s zoning ordinance, rewritten in 2008, gives O’Neil and her counterparts authority to interpret whether proposed renovation and construction projects are in keeping with Burlington’s old-style charm — and to deny permits to those that aren’t. By many accounts, O’Neil has used that power liberally.

Homeowners who thought they were doing the right thing by replacing drafty old windows with double-paned fiberglass ones have been rebuffed and told they must install more expensive wooden windows. Landlords who wanted to invest in dilapidated rental properties by replacing rotted wooden clapboard with more durable cement Hardie siding have been rejected because the material isn’t historically accurate.

Properties listed on the national and state historic registers aren’t the only ones bumping up against these rules. Under Burlington’s zoning ordinance, any building eligible to be on those lists is subject to design review by O’Neil and her colleagues. Three things can make a building eligible: It’s at least 50 years old; a historic event happened there; or it exemplifies a particular architectural style. Using those criteria, 60 percent of individual parcels and three-quarters of the Queen City’s land area can be designated as “historic.”

What’s more, smaller projects get a different scrutiny than do larger ones. Building jobs costing more than $21,000 go directly to two citizen panels, the Design Advisory Board and the Development Review Board, for evaluation. But any job with a lower estimate is reviewed and acted on “administratively” by O’Neil and her colleagues, without going through the boards. According to David White, Burlington’s director of planning, almost 90 percent of permits are handled in-house.

O’Neil didn’t write the zoning rules — though she did have a hand in revising them two years ago — and she’s not the only city planner reviewing permit applications. In fact, most property owners interviewed for this story — most of whom did not want to be quoted — acknowledged that the city’s confusing regulations are the real source of their frustration.

But, since she was hired to the $47,288-a-year job in 2004, O’Neil has become the human face of Burlington’s building restrictions.

To her fans, she is a guard dog warding off profit-driven developers and slumlords who would spoil the city with cookie-cutter subdivisions, vinyl siding and building materials that clash with classic architecture. “She’s the preservationist Cerberus at the gates of bad development,” says alternate Design Advisory Board member Amy Johnston, referring to the mythical three-headed dog that guards the entrance to Hades.

To her harshest critics, O’Neil is a zealot bent on preserving the past at all costs. They blame her insistence on historical accuracy for driving up rents and giving landlords a disincentive to make badly needed investments in their properties. Property owners who can’t afford the materials mandated by city hall have the choice of breaking the bank or skipping repairs that could improve a home’s energy efficiency, these detractors point out.

“If they had their way, nothing would change in Burlington,” one landlord says of Burlington’s preservationist “clique,” to which O’Neil decidedly belongs. “If a dog took a shit on the sidewalk, it would stay there.”

O’Neil was uncomfortable being the subject of a news article and politely declined to be interviewed for this story. In a brief conversation last week, she said she feels personally targeted in the heated debate over historic-building codes.

“I have been stinging lately with the amount of attention that development review has gotten in Burlington,” said O’Neil, who resides in Essex Junction. “I’m not willing to take a stick and slap the hornet’s nest. It stings enough as it is. So I would prefer not to participate.”

As O’Neil chatted with members of the Design Advisory Board at a recent meeting in city hall — hands folded in front of her, a warm smile radiating from her face — it was hard for an observer to imagine how this middle-aged mother of seven provokes so much outrage. But she does.

One homeowner was so frustrated by O’Neil’s oversight of his house renovation that he dedicated a bay window to a personal protest of her. Jonathan Maguire plastered his window at 13 Lakeview Terrace with O’Neil’s printed denials of his design ideas. On them, he highlighted the reasons for rejection that he found particularly vague, such as “The proposed design would upset the rhythm of the structure.”

“What does that even mean?” Maguire asks now.

Maguire wanted to add a loft and an “airy and spacious” living room to the two-unit building, built in 1902. O’Neil’s reading of zoning regulations imposed so many design restrictions on the project, he says, that he ended up with no loft and “a little shoebox of an addition.”

“It ended up taking me an extra two years to complete the project because of Mary O’Neil,” Maguire says. “If it had gone easy, I would have done another two houses by now, and Burlington would look awesome. I would never do a project in Burlington again. That’s how bad my experience was.”

Two houses down, Maguire’s neighbor describes a similarly frustrating, almost Kafkaesque experience dealing with O’Neil and other city officials. Alan Newman, the founder and former owner of Magic Hat Brewing Company, bought a shabby, 1950s-era house at 23 Lakeview Terrace in 2008 with plans to do a gut rehab, or demolish it and rebuild from scratch. Because the house was deemed historic, Newman soon found himself in a quagmire of complicated and sometimes-contradictory rules.

Newman wanted to side his house with cement Hardie board, rather than wooden clapboard, for its durability and ease of maintenance. He says O’Neil nixed the idea because Hardie board wasn’t used when the house was built. Later, a building inspector came to the job site and insisted Newman use Hardie siding on the home’s north face because its proximity to the neighbor’s house presented a fire hazard. (Cement is a better firewall than wood.)

Next, Newman wanted to build a garage that matched his house in period style, color and design, with cedar shingles painted in pastel blues and greens. He was told the regulations wouldn’t allow that. Additions to historic homes can’t resemble them, he learned, because that might lead people to confuse original structures with new ones. So Newman built a modern, industrial-looking garage with rusting metal. Beside his classic house, it looks a little “silly,” he says.

While Newman struggled to meet the city’s requirements, the Department of Code Enforcement — acting separately from Planning and Zoning — slapped him with “vacant building” fees of $500 every three months while the house was under construction. When he didn’t pay, the city placed a lien on the property. “I told them, ‘It’s not vacant. It’s under construction!’” Newman says. He notes the lien has still not been lifted.

“I’m a fan of historic. I love the fact that Burlington has gone out of its way not to tear down historic and build all glass and concrete,” Newman says, looking back on his experience. “But they could not have made my life more difficult and more expensive. Everything was a battle. I ended up building a house to Planning and Zoning’s specifications.”

A few property owners have fought city hall for the right to renovate buildings their way. Since 2004, Burlington has been sued at least nine times in state environmental court for permit issues related to historic buildings, according to Kimberly Sturtevant, a lawyer for the city. The cost to Burlington taxpayers: $41,654.

In one such case in 2008, Chittenden County landlord Bill Bissonette sued the city after being denied a permit to renovate siding using Hardie board on three rental properties on King and Archibald streets.

The King Street properties are listed on the National Register of Historic Places Inventory, and the Archibald Street building was on the city’s historic list. All three had wooden architectural details that made them significant, such as fish-scale shingles and cornice returns. Each also had siding that was splitting and rotting from decades of wear and tear.

Lawyers for the city argued that Hardie siding was out of character with historic King Street, which is dotted with brick façades of stately old homes. But the judge ruled for Bissonette and pointed out that King Street is already awash in vinyl and aluminum siding, some of it installed without permits or before the city toughened its design rules.

Though he won the case, Bissonette says he hardly felt victorious.

“That cost me $30,000,” says Bissonette, whose company, ALPH Realty, owns some 230 apartments countywide. “I’m a taxpayer. I pay a shitload of taxes in the city of Burlington, like, $350,000 a year. As a taxpayer, this pisses me off, because we could have come up with a better solution in which a court case wouldn’t have to be the last remedy.”

O’Neil’s defenders say she gets a bad rap — and doesn’t deserve it. Amy Johnston, the alternate Design Advisory Board member, says O’Neil has a “tough and sometimes thankless and misunderstood” job.

“She didn’t make up these rules,” says Johnston, who owns Massage Envy in Williston. “Most regulations are in response to something. This was in response to people throwing up phony historical additions and such. She is really judicious and fair about this and not an advocate in the extreme.”

Burlington’s design-review standards went on the books in 1978, after urban renewal flattened several city blocks in the 1960s to make way for the downtown shopping mall. The purpose of those standards, according to a city brochure on the topic, is “to keep Burlington from looking and feeling like ‘Anywhere, USA.’”

Aesthetics aside, Burlington Director of Planning David White says there’s a strong economic case for preserving things as they were.

“Property values are stable relative to one another because you know that something jarring isn’t going to happen,” White says. “If all the buildings are of consistent scale and proportion, you don’t want to stick in something that’s really a sore thumb because it’s much bigger than everything else.”

Regarding O’Neil, White defends his employee as an “absolute invaluable resource” and argues that neither she nor the city’s preservation rules are all that strict. Only 3 percent of permit applications reviewed in-house are denied, White says. That’s partly because most property owners work collaboratively with staff on their plans.

“There’s this perception out there that we say no all the time, where the reality is, we very rarely say no,” says White.

White says his office is sympathetic to cash-strapped homeowners who want to fix up their houses and can’t afford the higher-quality materials mandated by the city. But the zoning ordinance is “blind” to ability to pay, he says. To address that, White wants to establish a fund for renovators on tight budgets.

Peter Potts, chairman of the Burlington Planning Commission, clarifies that the 2008 zoning rewrite did empower the Design Advisory Board and Development Review Board to consider a homeowner’s ability to afford historical materials. But, he says, the language is so vague that the loophole is all but unusable. For several months, the commission has been working on amending the ordinance in ways that will relax the rules about preservation. Potts says a final recommendation to the city council could come by late December.

“There were some commissioners who had to be persuaded we had a problem. Everyone now believes there is a problem,” he says.

One measure the commission is considering is separating buildings with historic status from those that are merely eligible for it. Potts envisions a two-tiered system in which homeowners whose properties are not listed on historic registers would have greater flexibility to renovate properties using less expensive materials. That would ease the burden on some homeowners, he says, and perhaps even take some heat off O’Neil and her fellow planners.

“Mary is just doing her job to the best of her knowledge and ability,” Potts says. “Her job is to interpret the zoning ordinance. If the zoning ordinance is vague, staff end up having to fill in the blanks on their own. That can be governed by their individual experience and perspective. If we don’t like how she’s doing it, it’s up to the commission to fix it.”

For some owners with “historic” properties in limbo, that fix can’t come too soon.