Appealing the Approval of COA 13-357 - the demolition of 129 East 2nd Street

[strider]

At the end of the meeting during which this appeal had been heard, the HPC (Historic Preservation Commission) discussed a request from Councilman Lumb for ideas on some legislation he would like to have written.  It involves primarily doing something about the issues MCC's (Municipal Code Compliance) rolling fines create.  It is also something that is much needed. The HPC also mentioned the fact that both Councilman Jones and Councilwoman Boyer are also looking into related issues involving the demolitions and the issues surrounding MCC.   However, we found a couple of comments very disturbing:

This one from Jason Teal: (I can't get the image over here myself but this is a quote)

5      You Know, looking at what does it take to qualify for an emergency, you know, whether or not there's requirement for that.  Looking at creating an exception from the appeals process for after the fact emergency COAs; in other words, you can't appeal those.  You know, that would solve the problem that we had today.

I personally just want to beat my head against a wall when I read this.  First, there are requirements already in the ordinances to help make those determinations of whether something is a true emergency or not.  Like any ordinance, one does have to actually try to follow the law for it to have an effect on the outcome.  Then, our appeal of this COA, an appeal by concerned citizens trying to make the city and the HPC simply use what is in the ordinance already to act as a checks and balance system to insure MCC is not abusing the emergency powers, was nothing but a "problem" to him.  So much so that he wants to take the right to appeal that kind of COA away from those concerned citizens.   Perhaps the Historic  Districts deserves better legal representation than Mr Teal can provide.


Jennifer Mansfield, Chairwoman of the HPC, who basically acted as if she was a puppet for Mr. Teal during the appeal hearing and actually criticized us because the Owner of the lost house took too much of their time (ten minutes), did come back with the following.

T

he Chairwoman: (Again, I can't get the image over here myself but this is a quote)

Well, I don't think there's any anxiousness to – on this commission's part to take over the whole code enforcement thing, But I think that the appeal tonight demonstrates at least a portion of the system is broken and not operating as the citizens of the city expect it to operate, and I think rightfully expect it to operate.

And so if there's a way to structure that, maybe it's a  -- like the existing magistrate but a panel – kind of a code Enforcement panel, where it's someone from Code Enforcement, it's someone from the Commission, and maybe a third party, neutral, or, you know, to jointly share those decision making – so that it's not one department vying for the power of the other department or perceived as such because it's really not my interest, I know – and I don;t – I wouldn't say that any of my commissioners have that interest either, but I do think that all of us want to resolve this issue that's been ongoing for years now and has come to a head tonight with this appeal.

And the fact is, is that the laws' the law, and that was our decision earlier tonight, and probably needs to be fixed sooner rather than later.

While I am very glad that she recognizes that there was and is a problem, I find it a bit disturbing that the HPC is afraid of Ms Scott.  That it is important that the commission does not step on any toes in other departments and that some new board be created to handle the issue.  The way I read the ordinances, in regards to Historic Districts and Landmarks, the buck is supposed to stop at this commission.  And yet it seems to me that Ms Mansfield wants to pass that buck along. I can understand the Planning Department and the Office of General Counsel being afraid of Ms Scott and not wanting to rock that boat.  They fear for their jobs.  But what does this commission have to lose? An unpaid position? Mr. Teal's job is to mitigate possible liabilities.  The Commission's job is to protect the Historic Structures. The reason the HPC exists and that job is not simply left with the Planning Department is the simple fact that the Commission should only have to worry about doing their stated job and not what Mr Teal worries about. That as an unpaid, citizen commission, it should be above the petty politics and free from the possible graft that can exist.  Sadly, that doesn't seem to be working out too well for this particular commission.

Then her last statement: And the fact is that the law's the law, and that was our decision earlier tonight, and it probably needs to be fixed sooner rather than later.

The law could have been at least partially fixed by simply recognizing that the law does not give the right to either the HPC, the  Office of general council nor the MCC to just decided to interpret the same definition differently for the public as it does a city department.  That is exactly what happened.  Mr Teal redefined the meaning of submitting an demolition COA application from what it is for you and I, heck, even for what it is for a"regular" non-emergency demolition for MCC, to something else when Ms Scott decides to say a particular house is an emergency.  And while we are talking about this subject, Mr. Teal during the actual appeal had implied that there was a method under 518 to appeal this demolition and perhaps it should have been handled that way, not through the HPC.  I looked up the only possible way to appeal this demolition under 518 and it says:

If a petitioner requests a hearing under this Section, the filing of that request shall automatically stay the effect of the vacate order and/or order terminating electrical service and the parties shall be restored to the status quo ante the issuance of the Chief's Order, unless the Chief who entered the Order certifies in writing, under oath that, by reason of facts stated in the certificate, a stay would cause an imminent threat to life or safety. In the case of a certificate filed according to the previous sentence, the stay shall be terminated, the order to vacate / order to terminate utilities shall remain in effect, and the parties shall not be restored to the status quo ante. A copy of the Chief's certificate shall be provided to the appealing party by mail on the same day that it is filed with the Special Master.

As you cans see, the Chief, which is any employee the Chief, Ms Scott, gives authority too, can simply ignore that appeal by continuing to say it is an emergency.  Which brings us back to the HPC as the only real avenue that a emergency declaration of a structure within the historic district by Ms Scott could ever possibly be questioned.  And we know how well that worked out.  Fear and greed seems to rule the day and protecting the Historic Structures is not even on the OGC nor the HPC's radar.

The following are the quotes from 307 regarding what must be done with both regular run of the mill demolitions and those pesky little emergency ones we are so upset about. Judge for yourself whether Ms Scott, Mr Teal and Ms Mansfield are right.  Or we are.

Sec. 307.106. Approval of changes to landmarks, landmark sites, and property in historic districts; application procedures.
(n)
In considering an application for certificate of appropriateness for demolition, the Commission shall consider the applicable Historic District Design Regulations, if any, and the following additional criteria:
(1)
The historic or architectural significance of the building or structure;
(2)
The importance of the building or structure to the ambience of the historic district;
(3)
The difficulty or the impossibility of reproducing such a building or structure because of its design, texture, material, detail or unique location;
(4)
Whether the building or structure is one of the last remaining examples of its kind in the neighborhood, the County or the region;
(5)
Whether there are definite plans for reuse of the property if the proposed demolition is carried out, and what effect of those plans on the character of the surrounding area would be;
(6)
The difficulty or the impossibility of saving the building or structure from collapse;
(7)
Whether the building or structure is capable of earning reasonable economic return on its value;
(8 )
Whether there are other feasible alternatives to demolition;
(9)
Whether the property no longer contributes to an historic district or no longer has significance as an historic, architectural or archaeological landmark; and
(10)
Whether it would be undue economic hardship to deny the property owner the right to demolish the building or structure.
The Commission may request assistance from interested individuals and organizations in seeking an alternative to demolition. The Commission may require applicants to submit such additional information as the Commission deems necessary to be used in making its determination. The Commission shall not deny a request for a certificate of appropriateness for demolition without also considering such request as a request for a certificate for relocation.

Sec. 307.107. Administrative Review and Exceptions.
(a)
The Commission shall designate and update and amend from time to time a list of routine alterations, minor repairs or other work that may receive immediate approval from the Planning and Development Department without a public hearing when an applicant complies with the applicable Historic District Design Regulations.
(b)
A certificate of appropriateness will not be required for any interior alteration that does not affect any exterior fabric or for routine lawn and landscape care or maintenance, excluding changes to existing or introduction of new hardscape.
(c)
Any staff administrative review decision can be appealed to the Commission by the applicant and any person with standing under Section 307.202. The filing of such an appeal shall be made within 21 days of the staff approval date. Such appeal shall be a de novo hearing and shall be processed and heard as a standard certificate of appropriateness application, including payment of the applicable certificate of appropriateness application fee by the appealing party, and such appeal shall be processed and proceed in the same manner established insection 307.106 for standard Commission-reviewed applications.
(d)
The ordinance designating a landmark or landmark site or historic district may designate additional exceptions to a certificate of appropriateness.
(e)
Any Commission determination on an application for a certificate of appropriateness application shall be binding on an applicant or other interested party absent a demonstration to the Commission of a substantial change in circumstances pertaining to such application.
(Ord. 90-706-486, § 3; Ord. 94-337-183, § 11; Ord. 2003-460-E, § 1; Ord. 2004-482-E, § 1; Ord. 2011-539-E, § 1)

Sec. 307.111. Enforcement; civil remedies.
(b)
In cases where a structure has been either demolished or relocated in violation of this Chapter, or where any building has to be demolished by the City pursuant to the property safety requirements of Chapter 518 and the owner of said building has received two or more notices from the City regarding neglect or failure to comply with Chapter 518 as they pertain to the structure, a civil penalty shall be assessed in an amount equal to 30 percent of the market value of the property and structure(s) prior to its demolition, however this civil penalty shall be no less than $10,000. This civil penalty shall be in addition to and separate from any costs incurred by the City in removal of any structure and otherwise recoverable from the property owner. Additionally and separate from any civil penalty provision in this Section, there shall be no certificate of appropriateness issued for new development on the subject property for a period of one year from the date the City's judgment for civil penalties has become final, unless and only when such certificate of appropriateness is issued to correct and repair a partial demolition.

Sec. 307.113. Unsafe Structure Abatement.
In the event a structure that has been designated as a landmark or contributing to an historic district under the provisions of this Chapter is declared to be an unsafe structure or condemned pursuant to Chapter 518, Ordinance Code, and either the property owner or the Municipal Code Compliance Division desires to abate such conditions, they shall first obtain a certificate of appropriateness pursuant to section 307.106 or 307.107. Demolition activities shall be performed consistent with the approved certificate of appropriateness. A certificate of appropriateness shall not be required prior to commencing demolition or abatement actions concerning any extreme and imminent public safety hazard, as provided for under an order for emergency abatement issued by the Chief of the Municipal Code Compliance Division or the Chief of Building Inspection. However, a copy of the emergency abatement order shall be submitted with a certificate of appropriateness application prior to either obtaining any necessary permits to conduct the emergency abatement or within seven days of the demolition or other emergency abatement action. In determining the appropriate manner to remedy emergency conditions affecting a landmark, landmark site, or a property in a historic district, the remedy shall be limited to the least intrusive means to minimize the impact to the historic fabric. Consideration shall be given to bracing or other stabilization alternatives if such would be sufficient to abate the emergency conditions.
(Ord. 90-706-486, § 3; Ord. 94-337-183, § 17; Ord. No. 2006-847-E, § 1; Ord. 2011-408-E, § 2)
Editor's note—
Ordinance 2007-839-E, § 18, authorized updated department/division names pursuant to reorganization