HPC violating law in HPC17-490, inviting a law suit on appeal if demo allowed

HPC17-490 is a first. According to City staff it is the first time in the history of the Historic Preservation Commission that a contributing historic resource found to be of ‘unusual importance’ has been proposed for demolition. The unprecedented nature of this case leaves the Commission without any routine set of procedures for hearing it. (This piece has been submitted as a formal submission in HPC17-490.)

Already in the Birely Tannery demolition case (HPC17-490) the Historic Preservation Commission has strayed far from legally required procedures. If it continues on this course any decision to grant a permit for demolition faces the likelihood of a law suit to overturn it. Departures from the law are so clearcut, I’m advised, the chances of success on appeal are high.

In the following critique of the Commission’s conduct of the case the following are pertinent:

a. State enabling law Article 66B Land Use §8.09 and §8.10 which is the ultimate authority for the operations of local historic preservation agencies faced with applications for demolition

b. City Law: Land Management Code Section 423 at C.

c. HPC Guidelines Chapter 11 which are an interpretation of the law, and subsidiary to the law

COMPLAINTS

  1. Failure to attempt, with the owner, to formulate an economically feasible plan to preserve the Tannery

State law at §8.09 (a) (1) states that if an application is made for demolition of a structure that the commission has judged to be of unusual importance “the commission shall attempt, with the owner of the structure, to formulate an economically feasible plan to preserve the site or structure.”

The City’s Land Management Code Section 423 similarly at B. (i) states that an application for demolition of a structure of unusual importance “the Commission shall attempt to formulate an economically feasible plan with the owner… for its preservation.”

The hearings and workshops have so far consisted of statements of support and opposition to the project and near-monologues by the applicants describing the design process they followed and the problems with earlier iterations of a site plan. These have been designed to lead to the conclusion that there is no economically feasible plan to retain the tannery.

Critics of demolition in their limited time to speak have made brief reference to downsizing and the purchase of extra land as opening up possibilities for an economically feasible plan to preserve the tannery, but no attempt has been made by applicants or the Commission to discuss, let alone to formulate such a plan, as required by law.

  1. Failure to schedule a 90 day period to negotiate with the applicant to find a means of preserving the structure

State law at §8.09 (a) (2) dictates that unless the commission is satisfied the proposed work “will not materially impair the historic, archeological or architectural significance of the site or structure… it shall (i) Reject the application.” and allow 90 days to negotiate an economically feasible plan to preserve the structure.

Obviously the proposed demolition of the Birely building “materially impairs” its historic, archeological and architectural significance. Nothing materially impairs as fully and finally as demolition. So based on state law at §8.09 (a) (2) rejection of the application is mandatory.

8.09 (b) states that the Commission  “shall have 90 days from the date 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.”

City Land Management Code at 423 B. (i) and (ii) replicates State law almost word for word.

The Commission apparently plans to bypass these provisions in state law and the land management code and to rush to a vote on demolition.

  1. Failure to explore alternatives to demolition adequately

The City HPC Guidelines 2009 in Chapter 11 from page 147 note that they are intended to discourage demolition of contributing resources like the Birely Tannery and undertake a “deliberate and thorough” review process. The HPC guidelines continue: “Demolition will be considered only when all possible alternatives to (demolition) have been exhausted.” (NOTE: the word in parentheses is ‘preservation’ in the text of the Guidelines where obviously ‘demolition’ is meant, a staff error.)

In the HPC17-490 hearings and workshops to date the only alternatives to demolition presented and discussed have been those presented by the applicant’s architects and the applicant. The guidelines call for “all possible alternatives” to be “exhausted” requires the Commission to actively seek out and critically consider alternatives beyond those presented by the applicants.

The Guidelines state that “all possible alternatives” must be considered not “all the applicant’s alternatives.”

The Commission has failed to follow the Guidelines in considering only the applicant’s possible alternatives, and in making no effort to find and consider other alternatives.

  1. Need for instruction that the law is permissive, not prescriptive, on demolition for major improvement etc

The Guidelines p149 suggest demolition ‘will only’ be allowed if the building is found to deter a major improvement program of substantial benefit to a local jurisdiction, or if its removal is in the best in tersest of a majority. This can be interpreted, prescriptively, to mean that demolition must be allowed following such findings.

The law eschews the prescriptive verb ‘will’ and by contrast uses the permissive verb ‘may’. State law Article 66B §8.10 states: “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…” if it is a deterrent to a major improvement program… or not in the interests of the majority of people.

The Land Management Code echoes state law at C. (ii) “The Commission may approve the proposed construction, reconstruction, alteration, moving or demolition if” and it lists the same findings.

The Commission therefore might agree the historic structure was an impediment to major improvement and that removal was in the majority interest and still deny demolition. The Commission should be instructed by a City attorney that the law is permissive, not prescriptive, in stating that demolition may be allowed if it finds its retention would obstruct a major construction program or be in the interests of a majority.

Peter Samuel

2017.09.13

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