Price of Preservation

In a word: Windows. That’s what it has come down to. The future of a bed and breakfast slated to open in Evansville’s Riverside Historic District is tied up in court – over windows.

What began three years ago as the retirement renovation project for a transplanted Louisville couple has landed in the Vanderburgh Superior Court. Harsh words have been spoken, a slander suit has been threatened, more than $1 million has been spent, and a battle line has been drawn between the homeowners and the city’s Historic Preser-vation Commission.

“It’s really silly,” says Kathy Oliver, owner of the home at 420 S.E. Riverside Drive. “Here we are with our country in a very tenuous situation and we’re talking about a window.”

Twenty-six windows to be exact — 26 windows out of 70 in the historic home, which Oliver is renovating as a bed and breakfast. They are 26 windows, which Oliver, with testimony from local contractors and pressure from city fire code inspectors, says cannot be repaired and must be replaced.

Oliver’s troubles began when she didn’t ask Preservation Commission permission before ordering 26 hardwood-framed replacement windows, custom built to replicate the originals, at $1,600 per window. A belated request for a Certificate of Appropriateness was denied by the Commission last Sep-tember and a lawsuit was subsequently filed.

Citing the advice of their attorney, Commission representatives declined to comment specifically on the Oliver case.

“I have lots of thoughts … but our attorney tells us that since there is litigation in process on that, we as Commis-sion members can say nothing. So, we’re just muted,” says Dr. Timothy Crowley, chairman of the Commission when the lawsuit was filed.

The Preservation Commission’s stance, however, is a matter of public record in the minutes of the contentious Sept. 27 meeting, obtained from the Department of Metropolitan Develop-ment. At that meeting, Crowley and fellow commission members Larry Bristow and Gwen Koch each expressed the opinion that it was possible to save much of the deteriorated windows’ original fabric, including individual sashes and the original “wavy glass.”

“I think Larry and my interest is in maintaining as much of the original fabric as possible. …This house doesn’t have any particular problems that many of our own houses haven’t suffered and that we’ve been living with for a couple of decades. In our opinion, his and mine anyway, most of these windows could be salvaged by restoring those worst pieces or elements within the windows, thereby maintaining probably at least 85 percent of the original fabric of the window,” Crowley said during the September meeting.

As quoted in the minutes, Bristow said the visual quality of the original glass “is one of the main features that defines that house.”

“When you walk down the side street, the row of windows there on the ground floor, where the reflection is most obvious, contains unspeakable charm. That’s lost completely with the new windows,” he said, declaring that the original windows could be restored and replicated on a window-by-window basis and urging that cost should not be a factor in the commission’s decision.

“When I bought my house, I didn’t know that it was going to cost $30,000 to replace a slate roof. I cashed my life insurance to do it, but I did it,” Bristow noted.

The vote was 5 to 2 to deny Oliver’s application, with one Commission member abstaining.

For Kathy Oliver, who already had spent $1.1 million on the Riverside home, it was the last straw after three years of frustrating setbacks.[pagebreak]

The Front Door to the Riverside Historic District

Kathy Oliver’s saga began about five years ago when she and her husband, Orson, president of the Bank of Louisville, were looking for a change. Their daughter was leaving for college and Kathy felt the time was right to sell her business, Not Just Dancewear, a provider of hand-painted attire to the Louisville Ballet. Although she had never before operated a bed and breakfast or renovated a house, Kathy was attracted to the idea.

“I had a friend in Princeton, Ky., who operated a beautiful B & B,” Oliver says. “The idea appealed to me as we were looking for retirement income and decided to pursue the idea.”

The Olivers first looked in Louisville, where there are plenty of B & Bs in the city’s historic areas. However, they couldn’t get the zoning approved for the homes in which they were most interested.

Then, in 1998, their niece, Linda O’Riskey, of Evansville, told them she had found their home – the historic Hughes home at the corner of Southeast Riverside Drive and Oak Street.

“We drove over here to humor Linda,” Oliver says. “But once we got here, everything about the house seemed to fit.”

Built by Evansville grocer John G. Venneman in 1870, it was designed in the Italianate style by Henry Mursinna, a prominent architect who also drew plans for the Reitz Home.

The house became known as the Hughes home when Reuben Hughes bought it around 1896. A 1965 newspaper article in the Evansville Courier described how Hughes put down a double red carpet over the entire front porch and steps every afternoon, except when it rained. The story called the home the “last word in elegance.”

“It is indeed one of the finest homes in the district without question,” says Dennis Au, City Preservation Officer and liaison to the Preservation Commission. “Perhaps its most delightful feature – its architecturally defining feature – is its campanile (tower).”

Au describes the home as the front door to the Riverside Historic District. “It’s not just the architecture you have here,” he says. “The home is intertwined in the development of Evansville.”

In January 1999 the Olivers purchased the home with plans to open it by Thanksgiving of that year as Oliver House Bed & Breakfast.

They missed that deadline. “But we felt sure we could have it open in another six months or so,” Oliver says.

One Step Forward, Two Steps Back

Working with Rick Hancock of Yankee Builders, the Olivers set about renovating the interior of the home to the standards they desired – both for their personal residence and the B & B. The B & B would have four guest rooms, all with private baths.

“Then, we got the idea of tearing out a first floor bath and bringing back the original staircase – restoring the home to how it should have been,” Oliver says.

Oliver believed that since the restoration of the staircase was interior work, she did not have to file for what is known as a Certificate of Appropriateness with the Department of Metropolitan Development’s Historic Preservation Commission.

However, when commissioners noticed that an exterior door – albeit the original, restored exterior door – was going up, they intervened and halted construction.[pagebreak]

“I believed I was replacing ‘like for like,’” Oliver says. (According to the Preservation Ordinance, a Certificate of Appropriateness is not required when the homeowner is replacing “like for like.”) “Why would I need the Commission’s permission to put back on the home the original door?”

When the application for the Certificate of Appropriateness was finally approved and work commenced, the ordeal had set the Olivers back another two or three months on the project.

“As much as possible, I try to work with the neighbors,” Au says. “I try to work with them very early in the process. And, in almost every complaint from a homeowner against the Preservation Commission, it is because the homeowner did not come to us first. If you have the slightest doubt if you need a Certificate of Appropriateness – even if it’s a wild conception – call me.”

Au would not comment specifically on Kathy Oliver’s complaints. He would, however, talk about a success story – the Olivers’ paint selection process.

When the Olivers purchased the Hughes home, it was painted in tonal variations of salmon. Kathy Oliver worked extensively with Au to come up with a palette of historically accurate colors.

“I was very excited about the painting project,” Au says, “because this was one of the first times in my tenure that the color of the home was based on research.”

Au says that although some people may find the sunny yellow home — trimmed with soft green and creamy orange colors — garish, the paint selections sailed through the Preservation Commission because of the research involved.

Such elaborate and extensive painting comes at a price — $60,000 and still rising, says Oliver, as they are not completely finished with the project.

The Case of the Missing Window

While the home was being painted, the Olivers decided to replace 26 of the 70 windows in their home – windows that would not meet the fire code for a B & B because they were rotten and inoperable.

“The scaffolding was up for the paint and we thought that would be the best time to put in the windows,” Oliver says.

According to Oliver, these windows weren’t your ordinary replacement windows. They were hardwood-framed windows, custom built to be exact replicas of the original windows and priced at $1,600 per window.

“Again, I believed I was replacing ‘like for like,’” Oliver says. “My windows were rotten and leaky. We were replacing them with custom-built windows that would operate, satisfy the fire code, and improve the aesthetics of the home.”

Before the Olivers took delivery of all 26 windows, a sample was provided to ensure they met the purchasers’ specifications.

Midwest Contractors was hired to install the sample window and the old window was removed.

“I wasn’t trying to hide anything,” Kathy Oliver says. “I left the tag on the window. Any passerby could see that it was a new window.”[pagebreak]

Not just any passerby took note of the window. According to Oliver, a few days after the window was installed, Au came to her home and told her that members of the Preservation Commission were very upset about the window. They believed the rotten windows could be restored and required her to apply to the Commission for a Certificate of Appropriateness.

According to Oliver, Au did not find a problem with the replacement window. He came out to take measurements and, she says, indicated that the “worst case scenario” would be that the Commission would require she store the original sashes on site.

Following that advice, Oliver set the original window out by their carriage house to be put away.

Then, Oliver says, Au returned to take more measurements. When she checked on the original window by the carriage house, it was gone.

The Olivers filed a police report about the stolen window.

On September 14 of last year, the Olivers’ attorney, Krista Lockyear, submitted an application for a Certificate of Appropriateness, asking to replace the 26 windows. At the Commission’s Sept. 27 meeting, Lockyear offered photographs of windows “in a state of absolute rot” and a letter from local preservation expert Scott Anderson along with testimony from the Olivers’ contractor concerning the condition of the windows.

Anderson’s letter stated that restoring the badly deteriorated windows would be cost prohibitive and described the replacement windows as very similar to the originals. Au told the commissioners that the replacement windows were “very high quality replacement windows” but said the question before the commission was whether it was necessary to replace the originals.

After being bombarded with questions about the original windows by Crowley, Bristow and Koch, Lockyear asked to “appeal a little bit to reasonableness.”

“I agree that in a perfect world you keep all 26 of those windows,” Lockyear said. “But when you set the barrier so high that everything has to be done in a perfect world in Downtown Evansville, you’re not going to get a lot of the renovation that you have.”

During the course of the hearing, Oliver had disclosed to the Commission that one of the original windows was stolen, that a police report had been filed and that she was very interested in recovering the window.

The application was denied and, about seven days later, the Olivers learned from police detective Dan Winters that Commission member Larry Bristow had the missing window. Not long after that, Bristow returned the window to the Olivers, saying he had rescued it because he believed Kathy Oliver had set the window out for trash pickup.

See You in Court

Nearly three years after purchasing the home, with no immediate remedy in sight for the window situation, the Olivers believed they had no choice but to appeal the decision of the Preservation Commission to Vanderburgh Superior Court.

“We had no choice,” Oliver says. “We can’t meet the fire code and open the B & B without operable windows, and we can’t have operable windows unless we replace these 26 rotten windows.”

Au says the Preservation Commission looks at applications strictly from a design perspective – it cannot be involved in building codes and fire codes.

The lawsuit, filed Oct. 26, 2001, lists 36 counts relating to the windows, including that the action of the Commission, in denying the Certificate of Appropriateness, was arbitrary and capricious, and that the Olivers have been damaged by the denial.

As of press time, the Commission’s attorney had filed a motion for the suit to be dismissed on the grounds that the petition was signed by attorney Lockyear and not Oliver and that Oliver had not exhausted other appeals and remedies before taking her case to the courts.

“To go back to the Commission would be futile,” Oliver says. “They called me an outsider and were extremely contentious. We would rather have a jury of our peers.”[pagebreak]

In the meantime, Crowley has threatened his own lawsuit. Oliver received a letter from Crowley’s attorney, Alan Shovers, threatening a slander suit if she continued to “malign” his client’s name and reputation. Shovers is a managing partner in the firm of Kahn Dees Donovan & Kahn, the firm retained by the city to represent the Preservation Commission. The letter asked that the Olivers notify their homeowner’s insurance provider of the possible litigation. Subsequently, their policy was not renewed this year. (Most homeowner’s policies cover libel and slander under the personal injury clause.)

Oliver maintains she hasn’t slandered Dr. Crowley or any Commission member, but she readily admits she is angry and has eagerly told her side of the story.

Although there was no mention of either lawsuit, the Oliver house came up again during the Commission’s January meeting. Au said a commissioner, whom he did not name, had questioned whether an awning on the home had received a Certificate of Appropriateness. Au said the Certificate of Appropriateness granted during the paint selection process covered the awning.

Downtown Development versus Preservation?

“Every day that goes by that I’m not open is lost income,” Oliver says. With four guest rooms available that will eventually command up to $175 per night, the income loss is significant.

Beyond that, Oliver says, is the unbelievable notion that the city would actually support efforts to hinder positive downtown development and preservation.

“It’s disappointing when someone wants to invest in a community and we put up roadblocks,” says Kathleen Lane, president of Downtown Evansville, Inc. Her organization is charged with the promotion and implementation of the Downtown Master Plan.

Mayor Russell Lloyd, Jr., says he hopes the situation can be resolved “amicably so the Olivers can get their business going.”

“The Preservation Commission has been here since the ’70s, and I think it’s a valuable tool for downtown preservation. I think the intent always was to preserve the wonderful First Street and Riverside neighborhoods as they were at the turn of the century. But there needs to be a balance. You want people to move into those homes. …We need balance and reasonableness.”

Crowley says the Riverside Historic District has done very well in recent years, attracting fewer investors who want to buy homes and divide them into rental apartments and more “people who say I want to live there.”

“That’s a sign to me of a healthy historic area,” he says.

“I don’t think the Commission has ever interpreted the preservation ordinance in such a strict manner that it would chase off potential buyers – not to any great degree,” Crowley says. “I’ve known people who couldn’t even stand the subdivision covenants that they had to live under in a brand new subdivision. … I suspect if somebody said ‘I would like to live in an old home, but there is absolutely, positively no way I’m going to have anybody telling me what to do with my property,’ they may not buy down here. They may look for something somewhere else where there isn’t that control. But this is an awfully nice place to live if you’re interested in a historic structure in an urban environment.”

Oliver, who hasn’t found it such a nice place to live lately, says she finds it hard to believe she is involved in this situation. “This has been a labor of love,” she says. “All we want to do is share this house. We bought it to fix it up and to share.”

The Oliver House – with or without 26 new windows – will be included in the Evansville Philharmonic Guild’s “Homes of Note” Tour, April 27 from 9 a.m. to 4 p.m. All five homes on the self-guided tour are located in the Riverside Historic District. For more information about the tour, call the Philharmonic office at 425-5050.

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