The story of the Nevada City historical ordinance

By William B. Wetherall

30 September 1996

In the annals of the past certain events from time to time have had unusual impacts on the course of history. On August 12, 1968, there occurred in the little town of Nevada City, California, an event which, albeit on a modest scale, has had a significant impact on the character of the City and the welfare of its people. That event was the adoption of Ordinance No. 338, entitled "AN ORDINANCE OF THE CITY OF NEVADA CITY ESTABLISHING AN HISTORICAL DISTRICT AND PROVIDING REGULATIONS FOR THE PROTECTION, ENHANCEMENT AND PERPETUATION OF BUILDINGS THEREIN".

By the terms of that ordinance, there was created a so-called Historical District, which embraced the downtown core of the City, and it was provided that all buildings thereafter erected or altered within the District shall as to their exterior appearance within the public view substantially conform with a certain style of architecture called the "Mother Lode" type of architecture. In addition, the ordinance imposed stringent regulations on the use of signs within the District, and it placed restrictions upon the demolition or removal of buildings of special historical interest or of the Mother Lode type of architecture.

At the time the ordinance was passed, the City Council was composed of Mayor John Rankin and Councilmen Arch McPherson, Lon Cooper, Bob Paine and Joe Day, and the vote was unanimous.

In the mid-1960's, the people of the City were beginning to appreciate their rich heritage in the form of historical and architectural treasures, and to recognize the need to protect and preserve them. Construction of the Grass Valley-Nevada City freeway, which resulted in the destruction of several landmark buildings, including the Union Hotel, was, in itself, a "wake up" call. The valiant efforts made to save and rehabilitate the Nevada Theater, led by Sally Lewis, then a relative newcomer from Bakersfield whose name is now synonymous with that of the Theater, served to focus attention on the value of such buildings and the need to take action if they were to be preserved. Celebration of the Nevada City Centennial in 1965, with its spotlight on the past and its culmination in the "Golden Days" performance at that very Theater, also helped to create a hospitable climate for the regulatory measures which were to follow. The importance of such measures was further emphasized by the controversy surrounding the demolition of the Hot Mill on Union Street and its replacement by a gasoline service station.

Another factor conducive to the passage of the Historical Ordinance was the economic depression which had prevailed in Nevada County for a number of years. Mining operations, once the backbone of the local economy, were virtually non-existent. There were numerous commercial vacancies up and down Broad Street. But there were also people of influence, who, ever aware of the City's native charm, had come to recognize its potential for attracting visitors. These people were heard to say (to the dismay of some others) that the key to revitalizing the City was tourism, and that the protection and enhancement of the downtown area was a prerequisite to that cause.

The depressed economy of the area had also brought about the low-cost construction of the Courthouse Annex, which in its setting was an architectural banality and gave warning of what could happen to the City if there were no architectural controls.

The Historical Ordinance had a pretty long period of gestation and its birth was not without labor pains. As early as December of 1965, Dan O'Neill, then a Councilman and one of the first and most ardent proponents of the "save Nevada City" crusade, presented to the Council a draft of an ordinance establishing an "Historical Zone", providing that all structures within the Zone must conform with the "characteristic elements" of Gold Country Architecture", and requiring architectural review of all building permits. However, the ordinance did not specifically define those elements, it did not address the matter of building demolition or removal, and it contained provisions that did not seem to be appropriate for the described Zone.

From the beginning and throughout the period of its development, the ordinance, in its general concept, appeared to have genuine and broad based support among the members of the City Council and Planning Commission, although at the Council meeting just before the meeting at which O'Neill's draft was submitted, one Councilman declared that he was not in favor of an ordinance of that kind unless the public in general had an opportunity to vote on it. The need for such an ordinance came up from time to time at meetings of the Council and the Commission, but despite the overall agreement as to goals and objectives, little progress was being made in coming to grips with the "nitty gritty" issues which had to be resolved. Consensus became more difficult when it came to the "hard part" -- devising specific measures in order to reach those goals.

The idea of an historical ordinance was not dead, but there were times when it was comatose. Don Fairclough, during his tenure on the Planning Commission, and later Bill Lambert, did much to try to revive it. Meanwhile, passage of Ordinance No. 315 on March 9, 1964, served to awaken further interest in protecting the downtown area. That ordinance outlawed billboards along the freeway by prohibiting signs which could be seen from the freeway unless they advertised a business conducted on the premises, and unless they met certain other requirements.

Finally, an event occurred which, though not earth-shaking in itself, gave impetus to the process of generating a proper ordinance. That event was the appearance of Will Howard before the City Council on May 13, 1968, at which time he presented a proposed ordinance for the "preservation and restoration" of Nevada City. The Council referred the matter to the Planning Commission, and Bob Paine and Lon Cooper were appointed as a committee to meet with the Commission, along with Howard.

While Howard's proposal was not feasible -- it even provided for the restoration of board walks -- during the ensuing months the formulation of a workable ordinance was given high priority on the agendas of both the City Council and the Planning Commission. The City Attorney was asked to draft an ordinance which hopefully would not only satisfy the City's needs but would also be acceptable to the "City fathers".

A copy of the ordinance thus drafted was forwarded to the Planning Commission and was read and discussed at its meeting on July 11, 1968. At that time, the question was raised as to whether all buildings in the Historical District should be covered, and a variety of opinions were expressed concerning the provisions for sign regulation. The ordinance, as drafted, included a "rollback" provision as to existing non-conforming signs, requiring them to be brought into compliance within a five-year amortization period. By a 5-2 vote, that provision was deleted. In addition, a requirement that all signs be affixed flat against the building was deleted.

Members of the Planning Commission at this time were Chairman Bill Lambert, Dr. Leland Lewis, James Davis, Ralph Buchanan, Howard Keene, Lucy Sheffel and Bob West.

During the years in which the adoption of an historical ordinance was under consideration, many serious and often debatable questions arose and had to be resolved. For example, should we set out to impose architectural controls on the whole City, and if not, what area should be covered? How were we going to describe the kind of architecture we had in mind in such a way that the ordinance would not only be sufficiently definite and certain to be legally enforceable, but would also provide a practicable blueprint for the City officers and personnel who would be called upon to administer and enforce it? Could a city legally prevent a property owner from tearing down his own building, and if so, what were the parameters of that power? And what about signs -- especially neon signs and service station signs which were unheard of in the "old days"? Moreover, what is a "sign" -- how define it? These and numerous other questions, many requiring legal research, had to be faced and answered.

A worthy business man wants to tear down an old building, which he thinks is ugly, and replace it with a fine new structure which better suits his needs. Can we -- or should we -- tell him it is against the law for him to do so? Or he simply wants to install a large square, plate glass window in the front of his building to give more light inside. Can or should he be denied the right to do this?

A business man is just starting a new business and wants to put up a sign. He files an application for the required permit, along with a sketch and description of the sign he would like to have. He comes to a hearing before the Planning Commission. Can or should he be told that the sign, which is his pride and joy (and would not raise a ripple of reproach in Rancho Cordova) is too big, or that it projects too far from the face of the building, or that the colors are not right, or that a different style of lettering should be used, or that the sign should be illuminated only in a certain way? Should the applicant be sent back to the drawing board and told to return in a couple of weeks with a new or modified proposal? Such matters have nothing to do with health and safety, the time-honored and accepted subjects of government regulation.

We were aware that building regulations involving architectural controls had often given rise to the classic "shoot out" between private property rights, on the one hand, and the exercise of governmental "police" powers, on the other. We had learned that usually no problem arises where the regulation is confined to public buildings or to those having demonstrable and well established historical significance. But we had in mind an ordinance which would extend in some measure to all other buildings in the controlled area.

There were court decisions in California, as well as in other jurisdictions, which afforded some comfort and a few guidelines. As early as 1953, the Supreme Court of Louisiana upheld the so-called "View Carre" [Vieux Carré] ordinance designed to preserve the historic character of the old French Quarter in New Orleans. That ordinance, however, was adopted pursuant to an amendment to the state constitution. Similarly, in 1955, ordinances pertaining to the historic areas of Nantucket and the Beacon Hill District of Boston were sustained by the highest court in Massachusetts, but in those cases the ordinances were based upon an enabling act of the state legislature.

As was said in a law review article published in 1960, "Ordinances which impose architectural controls throughout the community have been sparsely litigated. There is reason to believe that many of them were enacted with persuasion rather than enforcement in mind, and that they have had a salutary effect under gentle administration".

In our city we wanted to have it both ways. Of course, we wanted an ordinance that would have general public support and which, hopefully, could be carried out by "persuasion", or even by "gentle administration", but we also wanted an ordinance that would be legally defensible if challenged in court.

Since there was no court case in California which would justify an ordinance based entirely on aesthetic factors, we took pains to bolster our ordinance with an economic base by declaring in the preamble of the ordinance that the regulation of buildings having a special historical or aesthetic interest or value was not only essential to the cultural life of the City, but would promote the economy of the City by making it more attractive as a mecca for tourists, and would also protect the value of all properties within the Historical District.

A major concern, from a legal standpoint, was the formulation of an objective architectural standard which would not be too vague or indefinite to be enforceable. Basically, we wanted to preserve for Nevada City the general appearance and atmosphere which evolved during the years following the 1949 gold rush in the Sierra Nevada foothills and extending to the turn of the century. In this regard, we were unable to refer to an established, well-defined architectural style, such as "California Mission", Spanish Colonial", or "Monterey", as had been done in other ordinances. So we set about creating our own definition of Mother Lode type of architecture.

The style of architecture we were looking at did not even have a name, much less a panoply of well-known and traditional architectural features which could be adopted by reference or easily articulated in the ordinance. Names such as "Gold Country", "Gold Rush", and even "Victorian" were bandied about, but we finally settled upon "Mother Lode". A purist might say that the name was ill-chosen -- that we should have selected "Northern Mines", instead of Mother Lode. We opted for the latter because it had a broader geographical reach and was perhaps better known. After all, the architecture we were seeking to describe was not confined to the Northern Mines.

We then undertook to determine, and to specify in the ordinance, the salient characteristics of Mother Lode architecture. It was stated that the primary materials used were wood and brick, and that the predominate design features were gabled or shed roofs, tall and narrow windows and doors, dormer windows, iron or wooden shutters, balconies, wooden awnings and ornamental scroll work. As graphic examples of this architectural style, the ordinance identifies 23 buildings within the Historical District, of which 17 are said to have historical as well as architectural value.

It should be noted that in designating the buildings which exemplify the style of architecture espoused by the ordinance, and also in defining the boundaries of the Historical District, the Planning Commission and City Council relied upon a report submitted by Bob Paine and Lon Cooper based upon a "foot tour" which they made of the District.

The ordinance does not require compliance with all of the design features thus mentioned; such a requirement would be unreasonable and legally indefensible. Not many existing buildings, to be sure, could pass such an acid test. Instead, the ordinance requires only that there be "substantial" compliance. That word, in truth, is the kingpin that holds the ordinance together and makes it workable.

During the "brainstorming" sessions on various facets of the ordinance, it was realized, early on, that the goal of recreating and perpetuating a mining town atmosphere in Nevada City would never be reached unless something were done about the signs in the Historical District. Many of the signs, especially the neon signs, were totally out of character with such an atmosphere. One business establishment on Broad Street was even flaunting a garish display of blinking outdoor lights.

The specter of sign control presented a number of special problems, not the least of which was that of prescribing a legally adequate standard for regulating the appearance or visual aspect of such signs. It would not do simply to say that signs would have to be approved by the Planning Commission. Such a standard would be wholly subjective -- in the "eye of the beholder"; but to come up with objective criteria for measuring or evaluating the appearance of signs seemed almost impossible. At least some degree of objectivity was brought into the decision making process by the provision, as finally agreed upon, that signs be "compatible" with the Mother Lode style of architecture.

Twenty eight years after its birth, the Historical Ordinance is still alive and well. It has reached maturity. It has worked. Amendments have been few, all of them relating either to the boundaries of the Historical District or to the modification of sign controls. By Ordinance No. 344, adopted July 14, 1969, there was a modest extension of the boundaries of the District.

By Ordinance No. 348, adopted April 13, 1970, there was an amendment allowing pole or free-standing signs under certain circumstances. By Ordinance No. 358 adopted May 14, 1973, the ordinance was amended so as to require non-conforming signs either to be in compliance or be removed within an amortization period of five years. By Ordinance No. 368, adopted May 12, 1975, there was a further minor enlargement of the Historical District. And by Ordinance No. 88-08, adopted June 27, 1988, the sign provisions were amended so as to prohibit sandwich-board or A-board signs, which were not contemplated when the ordinance was enacted.

There have been times when members of the Planning Commission have pleaded for more definite guidelines to govern their decisions on the many applications for permits that come before them, but for the most part, it is recognized that if the ordinance becomes too specific in its requirements it will lose its flexibility and become even more difficult to administer. In any system involving the exercise of discretion, however tightly controlled, there will always be hard choices -- lines to draw between that which meets a given norm and that which does not.

There have been some aberrations in administering the ordinance, a notable example being the exterior remodeling of the front facade of the former Bank of America building on Broad Street. Fortunately, however, the grotesque gingerbread which was approved by the Planning Commission some years ago has since been removed and the building restored to its original "anything -but-Mother Lode" style of architecture. At least, the building is once again honest. The ordinance was not intended to create a Hollywood setting.

The ordinance owes its life to many people. Although, there were differences of opinion among Councilmen and Planning Commissioners who had ordinance input, there was one common thread of apparent unanimity -- they seemed to recognized the need for such an ordinance. And many of them worked toward its fruition.

As principal players in this drama, it is only fair to mention (but not by way of excluding others) such names as Bob Paine, Dan O'Neill, Arch McPherson, Don Fairclough, Dr. Leland Lewis, Bob West, Howard Keene, John Rankin and Bill Lambert -- not to mention Lon Cooper, who, after voting for the ordinance as a Councilman, at a later date was appointed to the Planning Commission, on which he served for about 25 years, most of that time as Chairman. And, of course, there was, and still is, Beryl Robinson, whose aegis as City Manager has thus far spanned the entire life of the ordinance, and whose steady hand on the throttle has kept the City moving on the right track.

Though not directly involved, Alf Heller, who for a number of years owned and published the Nevada County Nuggett, gave editorial support; and Margaret Trivelpiece, a reporter for The Union, was once commended by the Planning Commission for her conscientious reporting on the Historical Ordinance.

Thanks to the Historical Ordinance and to the many devoted people who brought it to life and who have lived with it and worked with it over the years, Nevada City has retained a unique character and ambience which is truly reminiscent of its historical past. As a result, the City attracts thousands of visitors each year who contribute greatly to the local economy, thereby maintaining and augmenting property values both within and outside of the Historical District. Perhaps more important is the fact that the ordinance has helped spawn a cultural environment which makes Nevada City a better place to live -- a city that deserves to be called, and is proud to be called, the Queen City of the Northern Mines.

Origin of story

The report shown here is based on a 13-page typescript version -- the only copy I (WOW) have seen. The report chronicles the development of Nevada City Ordinance No. 338, adopted by the city council on 12 August 1968, during the period William B. Wetherall was serving as the city attorney.

The received copy is dated 30 September 1996. WBW posted the copy to me on 4 November. Also in the envelope was a copy of "Printer's Devil and Devil's Advocate: The Parallel Lives of Harold Berliner" from the Wednesday, 5 June 1996 edition of The Daily Recorder, a Sacramento newspaper (pages 1, 4-6).

WBW admired the "beyond the Bar" activism of his former law partner Harold Berliner, who was Nevada County District Attorney from 1957-1973. During this period, Berliner was also at the forefront of California's statewide conservationist movement. For more about his activism, see the note on Alfred E. Heller in the following section.

Editing

The report is conveyed here as received. I have flagged only two expressions with alternative spellings [brackets]. The second, involving the spelling of "nugget" in the name of a local newspaper, invites a few comments about its publisher, Alf Heller.

Alfred E. Heller

Alf Heller published Nevada County Nugget between 1959 and 1979, precisely the period during which William B. Wetherall was Nevada City's city attorney. Heller was the co-author, with Samuel E. Wood, of California going, going . . ., a 63-page pamphlet published in 1962 by California Tomorrow in Sacramento. Subtitled "Our state's struggle to remain beautiful and productive", single copies of the pamphlet were free, and additional copies were 75 cents.

California Tomorrow was a conservationist organization founded in 1961 by Alfred F. Heller (president) and Samuel E. Wood (executive director). The other founding members were William M. Roth (vice-president) and Harold Berliner (secretary). The organization, which was dissolved in 1983, published the journal Cry California and its successor, California Tomorrow, from Winter 1965/1966 to Spring 1983.

The California Historical Society acquired the records of California Tomorrow. The scope of the collection, and introductions to its founders and their activities, can be found on the website of the Online Archive of California (OAC), an initiative of the California Digital Library, which is overseen by the University of California.

Kilroy Award

An article in the Monday, 6 January 1997 edition of The Union, reporting William B. Wetherall's reception of Nevada City's 1996 Kilroy Award, refers to his report on the origin of the historical ordinance like this.