[BoulderCouncilHotline] Dushanbe Teahouse

[Wallach, Mark]

On September 28 I wrote in support of landmarking the interior of the Dushanbe Teahouse, and I am reiterating that position today.  The issue here is not the desirability of doing so; it is fair to say that there is virtually unanimous opinion that the interior elements of the Teahouse are worthy of protection. The only issue, then, is whether we have the legal ability to do so.

The staff memorandum analyzing the landmark request, and relying upon advice from the City Attorney’s Office, does not include such interior landmarking, on the theory that the historic preservation ordinance “does not have any special provisions that would allow for the regulation of the interior of such a building.”

I believe that this analysis is inverted, and that the language of the ordinance is broad enough to permit interior landmarking unless specifically prohibited by its terms. In my prior communication I asked whether there was any such restrictive language in the statute; to date no such prohibition has been identified and communicated to me. Unless there is such a restriction in the ordinance itself, it appears to me that the basic reluctance to landmark the interior is that we have not done it before, not that we are barred from doing so.

This approach – particularly in a case where the City owns the property, and would merely be subjecting itself to its own landmarking ordinance – is entirely too restrictive and narrow, and fails to protect important features of the Teahouse. The staff memorandum (see page 8) clearly recognizes the importance of these elements, but fails to protect them based on this rather timid interpretation of the statute.

No one would argue that we may act in contravention of the specific language of an ordinance, but where the ordinance is silent we should be free to interpret it in order to serve its fundamental purposes. Again, I quote the specific guidance of our City Attorney in other contexts, that in such cases the meaning of a statute “is what the City says it is.” I fail to see how this situation is any different. Is this a departure from prior practice? Yes, it is. But in this year in which our entire lives have been disrupted, a departure from prior practice is, frankly, not a compelling argument for inaction.

It is important to note that there is no suggestion here that the City should have the power to landmark the interior of a property owned by a third party opposing such designation. Clearly, that is not the case in this context. This is essentially a one-off situation where we act to protect the entirety of Boulder’s most iconic structure: we do so because it is our property, because interior preservation is  the clear desire of the community, and because there is no specific bar to such designation.   Failing to protect the interior of the Teahouse on the basis of the argument that we have never done so before is antithetical to the innovative approach that Boulder strives to take in so many areas. And let us remember that we are not inventing the wheel here. Other jurisdictions have landmarked interiors without complaint or controversy, in recognition that preservation values may apply to more than just  the exterior of a structure.

Accordingly, I believe that the option to landmark the interior of the Teahouse should be one of the permitted alternatives presented to Council. If it is not the will of Council to proceed on this basis, all well and good, but that is a decision that should be made by my colleagues and myself.

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