Discrepancies between HPC Guidelines on demolition and the law: submission in HPC17-490

Submission on the Guidelines & the Law on Demolition: There are some legal questions about how the HPC procedures in this case comport with the law on demolition of historic properties. The Guidelines are sometimes different from the law. I quote sections of each verbatim, then under PSam comment, and then question. Peter Samuel

State enabling law Article 66B — Land Use §8.09 and 8.10

§8.09.

(a) (1) If an application is submitted for construction, reconstruction, or alteration affecting a site or the exterior of a structure or for the moving or demolition of a structure, and a historic district commission or historic preservation commission considers preservation of the site or structure to be of unusual importance to the local jurisdiction, the State, or the nation, the commission shall attempt, with the owner of the structure, to formulate an economically feasible plan to preserve the site or structure.

(2) Unless the historic district commission or historic preservation commission is satisfied that the proposed construction, reconstruction, or alteration will not materially impair the historic, archeological, or architectural significance of the site or structure, the commission shall:

(i) Reject the application; and(ii) File a copy of its rejection with the building inspector of the local jurisdiction.(b) The historic district commission or historic preservation commission shall have 90 days from the date that it concludes that an economically feasible plan cannot be formulated under this section to negotiate with the owner and other parties to find a means of preserving the site or structure.

Article 66B – Land Use

§8.10.

If a site or structure is considered to be valuable for its historic, archeological, or architectural significance, a historic district commission or historic preservation commission may approve proposed construction, reconstruction, alteration, moving, or demolition, despite the fact that the changes come within the provisions of § 8.09 of this subtitle, if:

(1) The site or structure is a deterrent to a major improvement program which will be of substantial benefit to the local jurisdiction; or

(2) The retention of the site or structure would:(i) Cause undue financial hardship to the owner; or(ii) Not be in the best interests of a majority of persons in the community.

PSam comment: Note that state enabling legislation

1. requires the Commission (HPC) to attempt in collaboration with the applicant to find an economically feasible way to preserve the threatened historical building and site.

Q: Were the workshops really doing that?

2. requires the Commission to reject the demolition application unless it is satisfied it will not materially impair the historic, archeological etc significance of the site or structure

Q: Is that being put to the Commission?

3. after the Commission concludes that an economically feasible way to preserve the structure cannot be devised there is 90 days to negotiate a means of preserving the site or structure

Q: Are such negotiations on the cards in this case?

4. On the site deemed historically valuable tests of deterrence to a major improvement program of substantial local benefit, undue financial hardship and not in the interests of majority….the state law uses the permissive ‘may approve’ whereas the HPC Guidelines use the imperative ‘will’

Q: the Guidelines ‘will’ seems an anomaly and in any case where the Guidelines conflict with the law, the law prevails? (CORRECTION HERE: I initially wrote ‘shall’ when the verb actually used is ‘will’.)  To say the Commission ‘will… approve’ as in the Guidelines seems quite different from ‘may… approve’ as in  state law and the city code. The first is prescriptive, the second grants discretion.

City Law: Land Management Code Section 423

B. Plan to Preserve Site or Structure.

(i) If an application is submitted for construction, reconstruction or alteration, moving, or demolition of a site or structure of unusual importance, the Commission shall attempt to formulate an economically feasible plan with the owner of the site or structure for its preservation.

(ii) If no economically feasible plan can be formulated, the Commission shall have 90 days from the time it concludes that no economically feasible plan can be formulated to negotiate with the owner and other parties in an effort to find a means of preserving the site or structure.

C. Action on Application.

(i) Denial. Except as otherwise provided in subparagraph (ii) of this paragraph, unless the Commission is satisfied that the proposed construction, reconstruction or alteration will not materially impair the historic, archeological or architectural significance of the site or structure, the Commission shall deny the application for construction, reconstruction or alteration.

(ii) Approval. The Commission may approve the proposed construction, reconstruction, alteration, moving or demolition if:

(a) The structure is a deterrent to a major improvement program that will be of substantial benefit to the City;

(b) Retention of the structure would cause undue financial hardship to the owner; or

(c) Retention of the structure would not be in the best interests of a majority of persons in the City.

PSam comment: The LMC echoes state enabling law pretty exactly.

Q: It is unclear to me whether the Commission is required to sequence its decisions by attempting to find an economically feasible means of preserving the historic building and do the 90 days of negotiations first and only after that consider the deterrence to a major improvement program, financial hardship and best interests of majority…. or can it go straight to those?

City HPC Guidelines 2009

Chapter 11 p147 on

Demolition

B. Demolition is Discouraged

The Historic Preservation Commission was formed to preserve the historic district and its contributing resources and approve appropriate rehabilitation and new construction. When a contributing historic resource is demolished, a vital and tangible link to the City’s past is lost. This loss disrupts the historic streetscape and decreases the historical and architectural integrity of the entire historic district.

The guidelines are intended to discourage the demolition of contributing resources; therefore, they force the Commission to use a review process that is deliberate and thorough. Demolition will be considered only when all possible alternatives to preservation have been exhausted. (see Follow-up at end on this godawful mistake in the Guidelines wording.)

p149

H. Required Considerations at Demolition Hearings

A decision regarding demolition must be based on a complete application, including historical information about the resource and the replacement plan. In taking action on a demolition application, the Commission considers the following:

1. The degree of importance of the resource (see Chapter 1); 2. The proposed replacement plan for the demolished resource.

I. The Degree of Importance Influences Demolition Decisions

1. Resources of unusual importance are individual contributing resources that embody the highest levels of architectural, historical or archaeological significance. A resource of unusual importance must individually meet one of the Criteria for Designation in section 423 of the Land Management Code. If the resource is of unusual importance, demolition will only be approved if one of the following pertains:

A. The site or structure is a deterrent to a major improvement program which will be of substantial benefit to the local jurisdiction; or

B. The retention of the site or structure would:

1. Cause undue financial hardship to the owner; or

2. Not be in the best interests of a majority of persons in the community.

PSam comment:

1. In their favor the Commission’s Guidelines spell out bluntly that demolition (of contributing resources) will only be considered after all possible alternatives to preservation (read: demolition) have been exhausted.

Q: The HPC workshops were chaired in such a way as to allow proponents and opponents alike to avoid saying much of anything about about alternatives to demolition. R Griffin rambled on for hours presenting his general sales pitch and others only briefly touched on the issue… Does this really count as considering all possible alternatives to demolition?

2. How is the HPC going to pass judgment on whether the structure proposed for demolition is a “deterrent to a major improvement program”? … and how is going to judge if its removal is “in the best interests of the majority.” These matters are completely outside its area of expertise.

3. The Guidelines have no reference to either the state enabling legislation’s, nor to the Land Management Code’s invocation to the Commission to attempt with the applicant to find an economically feasible alternative to demolition or to the 90 day delay to negotiate.

Q: Is the Commission going to go by the Guidelines and ignore the state and city code legal requirement on working to find a economic alternative, and ignore the 90 day period for negotiation?

Follow-up: Only just noticed a godawful mistake in the Guidelines’ language on demolition — where the Guidelines say “Demolition will be considered only when all possible alternatives to preservation have been exhausted.”

Clearly they mean either “…all possible alternatives to DEMOLITION have been exhausted.” or “…all possible alternatives to ALLOW FOR preservation have been exhausted.” Who wrote these Guidelines, the person who wrote Plamondon’s ‘extensive historical studies’ proving the Birely Tannery was not a ‘contributing resource’?

2017.09.08

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