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WIDENER LAW REVIEW Volume 18 2012 Issue 2 WIDENER LAW REVIEW Volume 18 2012 Issue 2 EDITORIAL BOARD 2011-2012 Editor-in-Chief M. Stewart Ryan External Managing Editor Internal Managing Editor Lauren M. Royer Jenna Rae Kring Research Editors Manuscript Editor Justin Smigelsky Nicholas G. Madiou Adam F. Wasserman Articles Editors Bluebook Editors Melanie L. Crawford Alex J. Kwasny Brian J. Ferry Irina Luzhatsky Eric J. Juray Jennifer Prior Matthew J. Smith Business Editor Associate Editors Marissa M. Ramsay Andrew C. Goldstein Tanya Sellers Staff Suzanne Davies Brian L. McCarthy Colleen E. Durkin Julie E. Nugent Jeffrey S. Farmer Michael Overman Patrick Furlong Matthew R. Pierce Ronald P. Golden III Lauren J. Rosenman Caitlin M. Gregory Julie Harahush Robert J. Schweiger Daniel S. Heller Erica L. Sharp William J. Judge Jr. Allen R. Thompson William J. Kassab Russell T. Uliase Faculty Advisor Secretary Faculty Advisor Alan Garfield Debbe A. Patrick James R. May Special Thanks to: WIDENER LAW REVIEW Volume 18 2012 Issue 2 SUBSCRIPTIONS $35.00 The Widener Law Review is published twice annually by the students of The Widener University School of Law. Subscriptions are accepted on a one-volume basis (two issues), at the price of $35.00 per volume. Single issues are available at the price of $20.00 per issue. G VOL. XII:1 REGULATING FOR PATIENT SAFETY:THE LAW’S RESPONSE TO MEDICAL ERROR G VOL. XII:2 INAUGURAL ISSUE OF UNSOLICITED MANUSCRIPTS G VOL. XIII:1 UNSOLICITED MANUSCRIPTS G VOL. XIII:2 SYMPOSIUM: ENVISIONING A MORE DEMOCRATIC GLOBAL SYSTEM G VOL. XIV:1 UNSOLICITED MANUSCRIPTS G VOL. XIV:2 SYMPOSIUM: CROSS EXAMINATION: THE GREAT (?) ENGINE G VOL. XV:1 UNSOLICITED MANUSCRIPTS G VOL. XV:2 SYMPOSIUM: LIVING WITH CLIMATE CHANGE:LEGAL CHALLENGES IN A WARMER WORLD G VOL. XVI:1 UNSOLICITED MANUSCRIPTS G VOL. XVI:2 SYMPOSIUM: THE CHILD WITNESS G VOL. XVII:1 UNSOLICITED MANUSCRIPTS G VOL. XVII:2 SYMPOSIUM: HEALTH LAW AND THE ELDERLY :MANAGING RISK AT THE END OF LIFE G VOL. XVIII:1 UNSOLICITED MANUSCRIPTS Back issues may be ordered directly from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209-1987. Orders may also be placed by calling Hein at (800) 828-7571, via fax at (716) 883-8100, or email to [email protected]. Back issues can also be found in electronic format for all your research needs on HeinOnline available at http://heinonline.org/. Name_______________________________________________ Address _____________________________________________ City ______________________ State____________ Zip_______ WIDENER LAW REVIEW WIDENER UNIVERSITY SCHOOL OF LAW 4601 CONCORD PIKE, P.O. BOX 7474 WILMINGTON,DELAWARE 19803-0474 PHONE: (302) 477-2014 FAX: (302) 477-2042 ON THE WEB AT: http://www.widenerlawreview.org PLEASE MAKE CHECKS PAYABLE TO: WIDENER UNIVERSITY SCHOOL OF LAW WIDENER LAW REVIEW Volume 18 2012 Issue 2 CITE AS: Widener L. Rev. PROCEDURES FOR SUBMITTING MANUSCRIPTS The Law Review’s Editor-in-Chief will carefully review all manuscripts submitted for publication. Only well-written manuscripts offering original legal analyses will be considered for publication. If the Editor-in-Chief selects an author’s submission for publication, a member of the Law Review’s Editorial Board will contact the author in writing. The author will receive an Author/Journal Agreement. The Law Review’s Board and Staff will begin editing the submission only after receiving a properly executed Author/Journal Agreement. The Law Review typically publishes one Volume per year containing two Issues. The Law Review accepts unsolicited manuscripts on a rolling basis, so interested authors are encouraged to submit their completed manuscripts as soon as possible. SUBMITTING AN ARTICLE By U.S. Mail: Please submit a hard copy of your manuscript and a disk containing a copy of your manuscript (preferably in Microsoft Word®) to: Widener Law Review Widener University School of Law 4601 Concord Pike P.O. Box 7474 Wilmington, DE 19803-0474 By Electronic Mail Please send all submissions in Microsoft Word® to: [email protected]. Please include the word “manuscript” or “article” with the article title in the subject line of the email. Please provide your name, address, affiliation, biographical information, and acknowledgments on a separate attachment. Please use footnotes instead of endnotes or parenthetical citations. Please adhere to the most current version of THE BLUEBOOK:AUNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). Manuscripts submitted for publication will not be returned. The Law Review will notify all authors whose manuscripts are not accepted for publication. WIDENER LAW REVIEW Volume 18 2012 Issue 2 THE FITCH FORUM Foreword: Fitch Forum on Preservation Law..........................Andrew S. Dolkart i 2011 Fitch Forum: Part One.......................................................David Schnakenberg 123 Andrew S. Dolkart Anthony Wood Adele Chatfield-Taylor Speech: Keynote Address.....................................................................Jerold Kayden 129 2011 Fitch Forum: Part Two...........................................................Anne Van Ingen 141 Tersh Boasberg Paul Edmondson Jerold Kayden The New York City Landmarks Law: Embracing Litigation and Moving 159 Toward a Proactive Enforcement Philosophy.....................Benjamin Baccash 2011 Fitch Forum: Part Three....................................................David Schnakenberg 217 Tom Mayes Linda Dishman Brian Goeken Karen Gordon Tout Ensemble: Preserving Seattle's Satterlee House........................John Nivala 247 Speech: New York City's Landmarks Law..............................David Schnakenberg 259 2011 Fitch Forum: Part Four..............................................................Anthony Wood 267 Al Butzel Otis Pearsall Margery Perlmutter David Schnakenberg Mark Silberman Kate Wood Carol Clark Richard Roddewig John M. Weiss Protecting Landmarks from Demolition by Neglect: New York City's Experience.......................................................John M. Weiss 309 Albert S. Bard and the Origin of Historic Preservation in New York State ..............................................................................................................Carol Clark 323 2011 Fitch Forum: Part Five.....................................................................Kate Wood 331 Tom Mayes Anne Van Ingen Anthony Wood Vin Cipolla Tony Hiss FOREWORD: FITCH FORUM ON PRESERVATION LAW ANDREW S. DOLKART* In the book Preserving the World’s Great Cities,1 author (and Columbia University adjunct professor) Anthony Tung examines the preservation of many remarkable places, from Athens to Amsterdam and New York to Beijing. Although he examines places rich in history, culture, and architecture, any tourist will note that some places are better than others in keeping physical remnants of the past and incorporating them into dynamic modern cities. And the underlying commonality for well-preserved places is not about quality of architecture or a benevolent climate but about the rule of law. Places with a strong legal framework for regulating places, and a culture that supports adherence to those rules, simply do better in preserving their historic character. That the law is an integral part of the discipline of historic preservation in the United States, and particularly in New York City, is evident from the founding of the Historic Preservation Program at the Columbia University School of Architecture. Begun in 1964 by James Marston Fitch, the program is the nation’s oldest graduate study of the art, the science, and the policies of preserving places. It grows out of, in part, immense anger and frustration on the part of New Yorkers—and many other Americans—that the monumental Penn Station by McKim, Mead & White of 1904-1910 had been demolished in 1963,2 seemingly without regard to its importance in the urban landscape or architectural pantheon of the city. Fitch (as everyone who knew him, called him) incorporated a class on the law from the earliest days, and as the law itself was refined from general zoning rules to specific case law on the validity of historic preservation, the Preservation Law class within the Columbia University Historic Preservation Program became ever more important in the curriculum. The official name of the institution—Columbia University in the City of New York—pinpoints a location that has been the legal touchstone of historic preservation since the 1978 Supreme Court decision in Penn Central Transportation Co. v. New York City,3 which upheld the validity of municipal “landmark” laws as a contribution to the public good. Two important actors * James Marston Fitch, Associate Professor of Historic Preservation and Director, Historic Preservation Program at Columbia University Graduate School of Architecture, Planning and Preservation. 1. ANTHONY MAX TUNG,PRESERVING THE WORLD’S GREATEST CITIES:THE DESTRUCTION AND RENEWAL OF THE HISTORIC METROPOLIS (2001). 2. Editorial, Farewell to Penn Station, N.Y. TIMES, Oct. 30, 1963, at 38; cf. Kim A. O’Connell, Lead Us Not Into Penn Station, NAT’L TRUST FOR HISTORIC PRES. (Apr. 1, 2008), http://www.preservationnation.org/magazine/2008/books/. 3. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978). i ii Widener Law Review [Vol. 18:i in that legal case, Dorothy Miner, Counsel for the New York City Landmarks Preservation Commission, and Paul S. Byard, part of the legal team and himself an architect and lawyer, went on to teach in the Historic Preservation Program for many years. Over their years associated
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