HomeMy WebLinkAboutVII (D) Discussion: Historic Preservation Districts Agenda 4-15-2003
Item VII D
FOLEY : LARDNER
ATTORNEYS AT LAW
MEMORANDUM
CLIENT-MATTER NUMBER
020377-0625
TO: The Honorable Mayor and City Commissioners of the City of Ocoee
FROM: Paul E. Rosenthal, Esq., City Attorney
DATE: April 8, 2003
RE: Historic Preservation Districts
At the November 19, 2002 City Commission meeting, the City Attorney was
directed to review certain Historic Preservation Ordinances adopted in other jurisdictions in
connection with the possibility of establishing one or more historic preservation districts within
the City. In response thereto, this matter was reviewed with City staff who have looked at
ordinances adopted by other jurisdictions. The City Attorney has reviewed a model ordinance
prepared by the International Municipal Lawyers Association (IMLA). The IMLA Model
Ordinance presents a comprehensive approach to the subject.
'Ihe various ordinances have similar provisions in that they contemplate a three
step process. The first step involves the adoption of a historic preservation ordinance which
establishes the legal framework for the creation of historic districts and/or the designation of
historic landmarks. The ordinance typically provides for the creation of a Historic Preservation
Commission to implement and/or make recommendations with respect to historic preservation.
The ordinance does not typically establish a historic district or designate a historic landmark, but
sets forth the framework and procedures for establishing a historic district or landmark.
The second step comes after a historic preservation ordinance is adopted. The
Historic Preservation Commission would typically undertake a study and prepare a report on the
historic significance of the proposed district and/or landmarks. Public hearings would then be
held to consider the results of the study and to formulate recommendations. If the Historic
Preservation Commission decides to recommend the establishment of a historic district or
landmark, then the third step commences which involves the preparation and adoption of an
ordinance to establish a historic district and/or landmark. Such ordinance would he within the
framework established by the historic preservation ordinance, but would address area specific
issues identified during the course of a study and public hearings.
Should the City Commission adopt a historic preservation ordinance, that decision
would not require that an actual historic preservation district or landmark he established at a
subsequent date. The consideration of the historic preservation ordinance deals with the general
subject, while the establishment of a historic district or landmark pursuant to such an ordinance
deals with more area specific issues.
006 292072. FOLEY&LARONER
FOLEY : LARDNER
As noted above, 1MLA has provided us with a model historic preservation
ordinance which is attached to this memorandum. The model ordinance also includes excellent
Editor's Comments on legal issues associated with the establishment of historic preservation
commissions and districts. If the City Commission desires to proceed with the adoption of a
historic preservation ordinance, it is my recommendation that the 'MLA model ordinance serve
as the starting point and that we receive input from the City Commission as to any provisions
thereof which need to be added, deleted or modified.
PER/jlh
Enclosure
2
006.292072.
•
ARTICLE 22-6: IMLA MODEL HISTORIC PRESERVATION ORDINANCE
Section cultural heritage of the City. Furthermore, it is the
purpose of this ordinance to strengthen the economy of
22-601 Purpose and Authority the City by stabilizing and improving property values
22-602 Definitions in historic areas, and to encourage new buildings and
22-603 Historic Preservation Commission- developments that will be harmonious with the existing
Established historic buildings and squares.
22-604 Composition of Commission
22-605 Terms of Office; Vacancy
22-606 Compensation SECTION 22-602. Definitions.
22-607 Organization; Officers; Rules;
Meetings (a) Alteration means any change to or
22-608 Historic Preservation Commission- modification, through public or private action,of any
Powers and Duties historic resource or any property located within a
22-609 Establishment of Historic Districts historic district, including,but not limited to,exterior
22610 Designation of Historic landmarks changes to. or modifications of. a structure or any of
22-611 Application for Establishment of its architectural details or visual characteristics,
• Historic Districts and Designation of including paint color and surface texture, grading,
Historic Landmarks, Sites, and surface paving,new structures, cutting or removal of
Structures trees and other natural features, disturbances of
22-612 Alteration, Construction, Removal, or archeological sites or areas, and the placement or
Demolition; Certificate of Approval removal of any objects such as signs, plaques, light
22-613 Certificate of Economic Hardship fixtures, street furniture, walls, fences, steps, plants,
22-614 Ordinary Maintenance Allowed; and landscape accessories affecting the historic
Public Safety qualities of the property.
22-615 Acquisition of Historic Easement
22-616 Federal Grants (b) Certificate of appropriateness means a
22-617 Investigations and Reports certificate issued by the Historic Preservation
22-618 Maintenance and Repair Required Commission indicating that any plans, specifications,
22-619 Penalties designs, or statements of work for any proposed
22620 Injunctions alteration. restoration. construction, removal,
22-621 Separability relocation, or demolition of a historic landmark, site,
structure, or any property within a historic district is
in accordance with the provisions of this ordinance.
SECTION 22-601. Purpose and Authority.
(c) Certificate of economic hardship means a
The purpose of this Article is to promote the certificate issued by the Historic Preservation
educational, cultural, and economic welfare of the Commission authorizing the alteration, restoration,
public of the City of by construction, removal, relocation, or demolition of a
preserving and protecting historic structures, sites, historic landmark or any property within a historic
monuments, streets, squares, and neighborhoods district, even though a certificate of appropriateness
• which serve as visible reminders of the history and has previously been denied.
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(d) Commission means the Historic Preservation (j) Historic resource means any improvement, .
Commission of the City of established building,structure,sign, features,sites,places, areas,
by this Ordinance. or other object of,aesthetic,cultural,architectural,or
historic significance.
(e) Contributing structure means a structure
within a designated historic district which has a special (k) Historic site means any parcel or portion of
character, special historic, cultural, architectural, or real property which has special character or special
aesthetic interest, value, or significance and is historic, cultural, architectural, or aesthetic value.
incorporated into the district for that reason.
(I) Historic structure means any improvement to
(1) Demolition means any act or process that real property which has special historic character and
destroys in whole, or in part, a property or structure which has been designated as a historic structure
within a historic district or a historic landmark. pursuant to the provisions of this Ordinance.
(g) Exterior features include the architectural (m) Improvement means any building, structure,
style,general design,and general arrangement of the landscape feature, structural work of art, fence, gate,
exterior surfaces of any improvement, including but wall,or other object constituting a physical betterment
not limited to, the color, kind and texture of the of real property, or any pan of such betterment.
building material and the type and style of all
windows, doors, light fixtures, signs, and other (n) Maintenance means any cleaning,painting or
appurtenant fixtures to such improvement. restoration that does not result in the alteration of an
historic landmark, site,or structure.
(h) Historic district means any area containing •
improvements or historic landmarks that have a (o) Person in charge means the person (or
sp..cial character, or special historic, cultural, persons)possessed of the freehold of an improvement
architectural or aesthetic interest, value, or or improvement parcel or a lesser estate therein, a
significance,or which represents one or more periods mortgagee or vendee in possession,assignee of rents,
or architectural styles typical of one or more eras of receiver,executor, trustee, lessee, agent or any other
the history of the city,and which has been designated person directly or indirectly in control of an
a historic district pursuant to the provisions of this improvement or improvement parcel.
Article.
(p) Removal means any relocation of a structure
(i) Hiaroric kuuAmrk means any site(including on Its site or to another site.
significant trees or other plant life located thereon),
building,or structure of particular historic or aesthetic (q) Repair means any change to,or modification
significance to the City. Nisloric landmarks include of, any improvement, historic resource or any
sites,buildings,or structures where cultural,political, property located within a historic district, other than
spiritual, economic, social, or artistic history of the removal or alteration,where the purpose and effect of
City, State, or Nation is reflected or exemplified, or such change modification is to correct any
which are identified with historic personages or with deterioration or damage to such improvement, or any
important events in local,state or national history,or part thereof,and to restore the same,as nearly as may
which embody the distinguishing characteristics of an be practicable,to its condition prior to the occurrence
architectural specimen, inherently valuable for a of such deterioration or damage.
representation of a period, style or method of
construction, or a notable work of construction, or a
notable work of a master designer or architect.
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22-6.2
Historic Preservation
• SECTION 22-603.Historic Preservation appointed for any period of time,and provided further
Commission Established. that "one(1)term"shall include an unexpired term of
two (2)years or More.
This Article hereby creates and establishes the
[City] Historic Preservation Commission,hereinafter (b) In the event of a vacancy, an appointment
referred t0 as "the Commission." The Commission shall be made to fill the vacancy in the same manner
shall be responsible for recommending to the City as if the beginning of the term. The person appointed
Council the adoption of ordinances designating areas, to fill the vacancy shall hold membership for the
places, building structures, works of an, or other unexpired term, and if the vacancy being filled was
objects having special historic, cultural, or archi- occupied by a person meeting one (I) of the
[causal interest for the City as historic landmarks or enumerated qualifications, the newly appointed
districts. member shall meet that same qualification.
SECTION 22604. Composition of Commission. SECTION 22-606.Compensation.
The Commission shall consist of [10 Members of the Commission shall serve without
to 15] voting members and shall be appointed by the compensation,but shall be reimbursed by the City for
Mayor with the approval of the City Council. The necessary expenses incurred in connection with their
members of the Commission shall consist of at least duties.
two (2) architects, two (2) historians, one (1)
representative from the City Planning Commission,
• one representative from the field of real estate SECTION 22-607.Organization; Officers; Rules;
management,and one(I)representative from the men Meetings.
of finance. The Commission shall also include at least
one attorney; however, the City Attorney may act as (a) At its first meeting, the Commission shall
a officio attorney for the Commission. Additional select from among its members such officers as it may
members of the Commission shall also be appointed deem necessary. Officers shall serve for terms of
without regard to occupation or affiliation. However, year(s). The Commission shall have the
these members shall be residents of the City and shall power to designate and appoint from among its
be persons who have experience/interest in the members various committees with powers and duties
historic,cultural, or architectural development of the equivalent to, and not inconsistent with, the powers
City or who own property within a designated historic and duties of the Commission.
district.
(b) For the purpose of carrying out the intent of
this Ordinance,the Commission shall make such rules
SECTION 22605. Terms of Office; Vacancy and regulations as it may deem advisable and
necessary for the orderly conduct of its affairs which
(a) The members of the Commission shall serve arc not inconsistent with the laws of the City of
2(two)year terms and each member shall serve until and the State of
his/her successor is appointed.The members shall be
appointed in such a manner that the terms of not more (c) All meetings of the Commission shall be
than (5 to 8)members shall expire in any given open to the public.
year. No member shall serve more than two(2)terms
consecutively; provided that for the purpose of this (d) The Commission shall kccp a record of its
• limitation a member shall be deemed to have served meetings,resolutions,proceedings, and actions: all of
one (1) term if such member resigns after being which shall be open to public view.
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SECTION 22-606. Historic Preservation historic, cultural, architectural, or aesthetic value .
Commission—Powers and Duties. which have not been designated as historic structures
but are deserving of such recognition so as to
The Historic Preservation Commission shall have emphasize their importance in the lifestyle of the City
the power and it shall be its duty to: of . The Commission may take such steps
as it deems desirable to recognize these structures
(a) Consider all historic resources in the City without imposing any regulations or controls upon
which the Commission, on the basis of information them including,but not limited to, listing,certificates,
available or presented to it,has reason to believe may letters, or plaques;
be eligible for designation as a historic district,
landmark, site, or stmcture; (i) As time permits, and upon the request of
property owner(s),render advice and guidance on any
(b) Recommend to the Council that certain historic landmark, site, or structure. By way of
areas, places, buildings, structures, natural features example, but not by way of limitation, such advice
including vegetation, works of art or similar objects might relate to painting, colors, materials, fencing,
having a special historic, cultural, architectural, or landscaping, lighting fixtures, or restoration. This
aesthetic value as part of the heritage of the City be advice shall not be construed to impose any controls,
designated as a historic site or structure; but shall be offered in a spirit of cooperative help;
(c) Keep current and publish a register of (j) Encourage the cooperation between historic
historic districts, landmarks, sites, and structures; preservation groups,public and private;
(d) Make recommendations to the Planning (k) Perform any other functions that may be •
Commission, and the City Council on amendments to designated by resolution or motion of the City
the historic preservation element of the City's General Council; and
Plan;
(I) Promulgate,amend,and rescind regulations
(e) Issue or deny certificates of appropriateness as it may deem necessary to effectuate the purposes of
on applications for permits for alteration,restoration, this ordinance.
construction, removal, relocation, or demolition of
any building defined herein as a historic site or
structure; SECTION 22-609. Establishment of Historic
Districts.
(f) Educate the public of the unique
architectural heritage of the city through educational (a) Historic districts shall be established by
and interpretative programs. Such programs may ordinance.
include lectures, tours, walks, reports, publications,
films, open houses, or other special events; (b) Before the establishment of a historic district,
the Commission shall conduct studies and research,
(g) Explore means for the restoration, and make a report on the historic significance of
protection, and use of any designated or potential buildings, structures, features, sites, objects, and
historic landmark, she, or structure; surroundings in the City.The Commission report shall
contain recommendations concerning the area(s)to be
(h) Recommend and encourage the protection, included in the proposed historic districts.
enhancement, appreciation, and use of structures of
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22-6.4
Historic Preservation
• (c) Copies of the report shall be transmitted for (4) It embodies the distinctive visible
review and recommendation to the Planning characteristics of an architectural style, period, or of
Commission, to the state historic commission, and to a method of construction; or
the state historic advisory council. Sixty (60) days
after the transmittal, the Commission shall hold a (5) It is an outstanding work of a designer
public hearing on the report after due notice, which or builder; or
shall include a wrinen notice to the owners of all
properties to be included in such district(s). (6) Because of its prominence of spatial
location, contrasts of siting, agc, or scale, it is an
(d) After the public hearing, the Commission easily identifiable visible feature of its neighborhood
shall submit a final report with its recommendations or the City and contributes to the distinctive quality or
and those of the planning commission and a draft of a identity of such neighborhood or lie City.
proposed ordinance to the City Council.
(b) Upon adoption of the ordinance,the owners
(e) The City Council shall act on the report and and occupants of each designated historic landmark
recommendations in accordance with the zoning shall be given written notification of such designation
approval procedure as specified in Section of by the Council.
the City Code.
(c) One copy of the ordinance shall be filed with
the office of the register of deeds of the county in
SECTION 22-610. Designation of Historic which the property is located.
Landmarks.
• (d) The ordinance also shall provide for a
(a) Upon recommendation of the Commission, suitable sign or marker on or near the property
the City Council, after holding a public hearing, indicating that the property has been so designated.
preceded by giving sufficient written notice to the
owners and occupants of the affected property and
posting notice in its customary manner,may adopt an SECTION 22611.Application for Establishment of
ordinance designating one or more objects or sites Historic Districts and Designation of Historic
historic landmarks. In order for any property to be Landmarks, Sites,and Structures.
designated a historic landmark it must be more than
fifty(50)years old and fall within one of the following (a) Consideration of the designation of a historic
categories: district, landmark, site, or structure may be also be
originated by the filing of a designation application,on
(1) It is the location of, or is associated in a form prepared by the Commission, by a local
a significant way with, an historic event having a organization. Including but not limited to preservation
significant effect upon the community, City, state, or associations and community councils, owners of
nation; or property located within the City, or any other
interested persons.
(2) It is associated in a significant way with
the life of a person important in the history of the (b) Consideration of such application shall be
City, state, or nation; or conducted in a manner consistent with Sections 22-609
and 22-610.
(3) It is associated in a significant way with
the cultural, political, or economic heritage of the
• community, City, State, or Nation; or
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SECTION 22612. Alteration, Restoration, (f) The Commission may reduce the waiting •
Construction,Removal,Relocation,or Demolition; period required by this Section in any case where the
Certificate of Appropriateness owner or person in charge would suffer economic
hardship, not including loss of profit, if a reduction in
(a) A structure located within a designated the required period were not allowed.
historic district or a designated historic landmark may
not be materially altered, restored, constructed on, (g) The Commission shall have the discretionary
removed, relocated, demolished,or put to a different authority to waive all or any portion of the required
use without first obtaining a certificate of waiting period; provided, that the alteration,
appropriateness from the Commission. restoration, construction, removal, relocation,
demolition, or change of use is undertaken subject to
(b) Applications for certificates of cunditious agreed to by the Couunission insuring thc
appropriateness shall be filed with the director of continued maintenance of the historical,architectural,
buildings and inspections in such form as may be or cultural integrity and character of the property.
prescribed by the Commission.
(h) The Commission shall have the power to
(c) The Commission shall make a determination extend the waiting period to a duration not to exceed
on an application for a certificate of appropriateness 180 days, whcrc such extension is necessary or
within thirty(30)days of the filing of the application, appropriate in the judgment of the Commission for the
or within sixty (60) days if a public hearing is continued preservation of the property.
required, unless an extension of time is approved by
the applicant. If the Commission fails to render its (i) Prior to issuance or denial of a certificate of
determination within the specified time period, the appropriateness, the Commission shall give the •
application for a certificate of appropriateness shall be applicant,owner,or person in charge of any property
deemed approved. The date of determination may be likely to be materially affected by the application an
extended by mutual agreement between the applicant opportunity to be heard.
and the Commission.
(j) In cases where the Commission deems it
(d) During the thirty (30) day period, the necessary,it may hold a public hearing concerning the
Commission may negotiate with the owner or person application.
in charge of the historic landmark, site, or structure
and with any other parties in an effort to fmd a means (k) If the Commission determines that the
of preserving the property. Such negotiations may proposed alteration, restoration, construction,
include condemnation proceedings,recommendations removal, relocation, or demolition is appropriate, it
of tax rebates for the property to appropriate agencies shall promptly approve such application and shall issue
to encourage preservation, recommendation for a to the applicant a certificate of appropriateness.
historic easement pursuant to Section 22-615, or
inducements to interested third parties to purchase the (I) If the Commission determines that a
property for the purpose of preserving it. certificate of appropriateness should not be issued, it
shall place upon its records the reasons for such
(e) During this period, or at any time prior determination and shall promptly notify the applicant
thereto following notice of designation to the owner or of such determination,furnishing him an attested copy
person in charge,and where such action is reasonably of its reasons for denial and its recommendations, if
necessary or appropriate for the continued any, as appearing in the records of the Commission.
preservation of the property, the Commission may
enter into negotiations with the owner or person in (m) The Commission may approve an application
charge for the acquisition by gift,purchase,exchange, for a certificate of appropriateness in any case where •
m othetwisc of thc property or any interest therein. the applicant would suffer economic hardship, not
22-6.6
Historic Preservation
• including loss of profit, unless the certificate of (1) An estimate of the cost of the proposed
appropriateness is promptly issued. alteration, restoration, construction, removal, or
demolition and an estimate of any additional cost that
(n) An applicant,or any other interested person, would be incurred to comply with the
may appeal from any action of the Commission to the recommendations of the Commission for changes
City Council. Any such appeal shall be filed with the necessary for the issuance of a certificate of
city clerk within ten days after Oe action of the appropriateness;
Commission from which the appeal is being taken.
(2) A report from a licensed engineer or
(o) Upon the filing of an appeal,the City Clerk architect with experience in rehabilitation as to the
shall set the matter for public hearing. Such hearing structural soundness of any structures on the property
shall be held within thirty (30) days after the date of and their suitability for rehabilitation;
filing the appeal.
(3) The estimated market value of the
(p) Within thirty (30) days following the property in its current condition; after completion of
conclusion of the hearing, the City Council shall the proposed alteration, restoration, construction,
render its decision on appeal. The decision of the removal, relocation, or demolition; after any changes
City Council shall be final. recommended by the Commission; and, in the case of
a proposed demolition,after renovation of the existing
(q) Not later than seven(7)days following the property for continued use;
City Council's decision, the City Clerk shall send
written notice of the decision to the applicant and (4) In the case of a proposed demolition,an
• appellant, estimate from an architect, developer, real estate
consultant, appraiser, or other real estate professional
(r) Nothing in this Article shall prevent any experienced in rehabilitation as to the economic
person aggrieved by a determination of the feasibility of rehabilitation or reuse of the existing
Commission from appealing such determination to a structure;
court of competent jurisdiction.
(5) The amount paid for the property, the
date of purchase,and the party from whom purchased,
SECTION 22-613. Certificate of Economic including a description of the relationship, if any,
Hardship between the owner of record or applicant and the
person from whom the property wea purchased, and
(a) An application far a certificate of economic any terms of financing between the seller and buyer;
hardship shall be submitted to the Commission on a
form prepared by the Commission. (6) If the property is income producing,the
annual gross income from the property for the
(b) The Commission may, at its discretion, previous two(2)years;and depreciation deduction and
solicit testimony, schedule a public hearing, and/or annual cash flow before and after debt service, if any,
require that the applicant for a certificate of economic during the same period;
hardship make submissions concerning any or all of
the information set forth below before it makes a (7) The remaining balance on any mortgage
determination on the application. or other financing secured by the property and annual
debt service, if any, for the previous two(2)years;
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(8) All appraisals obtained within the applicant and the Commission, shall be considered to •
previous two (2) years by the owner or applicant in constitute approval of the determination of
connection with the purchase,financing.or ownership appropriateness.
of the property;
(e) Upon a finding by the Commission that
(9) Any listing of the property for sale or without approval of the proposed alteration,
rent, the purchase price asked and offers received, if restoration, construction, removal, relocation, or
any, within the previous two(2)years; demolition, all reasonable use of, or return from, a
historic landmark, site, or structure, or property
(10) The assessed value of the property within a historic district will be denied a property
according to the two(2)most recent assessments; owner, the Commission shall investigate plans and
make recommendations to the City Council to allow
(I I) Real estate taxes for the previous two for reasonable use of,or return from, the property,or
(2)years; to otherwise preserve the subject property. Such plans
and recommendations may include,but are not limited
(12) The form of ownership or operation of to; authorization for alterations, construction, or
the property,whether sole proprietorship,for-profit or reconstruction not in strict conformance with
not-for-profit corporation, limited partnership, joint applicable preservation standards but consistent with
venture, or other; and the effectuation of the purposes of this Article;
presentations to the property owner of available tax
(13)Any other information the owner incentives and development and preservation options;
chooses to provide. to the extent possible under then-existing law, a
reduction in real property taxes; financial assistance; •
(c) In the event that any of the information is building code modifications,and/or changes in zoning
not reasonably available to the owner, cannot be regulations.
obtained by the owner, and/or may not he disclosed
without a substantial adverse impact on the owner,the (f) If the Commission has found that without
owner may file with the Commission a description of approval of the proposed alteration, restoration,
the information which cannot be provided and construction, removal, relocation, or demolition, the
describe the reasons that the information cannot be property cannot be put to reasonable use or the owner
provided, cannot obtain a reasonable economic return on the
property,then the Commission shall issue a certificate
(d) The Commission shall review all the of economic hardship approving the proposed
evidence and information required of an applicant for alteration, restoration, construction, removal,
a certificate of economic hardship and make a relocation, or demolition and provide a copy of the
determination whether the denial of a certificate of certificate to the director of building. If the
appropriateness has deprived, or will deprive, the Commission finds otherwise, it shall deny the
owner of the property of reasonable use of, or application for a certificate of appropriateness and for
economic return on, the property. Failure of the a certificate of economic hardship and shall notify the
Commission to act within sixty (60) calendar days applicant in writing of the reasons for the denial and
after the date a completed application is received, the applicant's right to appeal the decision to the City
unless an extension is agreed upon in writing by the Council.
•
22-6.8
Historic Preservation
• SECTION 22-614.Ordinary Maintenance Allowed; SECTION 22-617. Investigations and Reports.
Public Safety
The Commission may conduct investigations and
(a) Nothing in Section 22612 shall be construed studies of matters relating to the protection,
to prevent the ordinary maintenance or repair of any enhancement, perpetuation or use of historic
exterior feature m a historic district or of any landmarks, sites, or structures and historic districts,
landmark, site, or structure which does not involve a and to the restoration of landmarks as the Commission
change in design, material, color, or outer may, from time to time, deem necessary or
appearance. appropriate for the effectuation of the purposes of this
Article,and may submit reports and recommendations
(b) Nothing in Sections 22-611 and 22-612 shall on such matters to the mayor and other agencies of the
prevent the proposed alteration, construction, city. In making investigations and studies, the
removal,or demolition of any such feature which the Commission may hold public hearings as it may deem
building inspector or similar official shall certify is necessary or appropriate.
required by the public safety because of an unsafe or
dangerous condition.
SECTION 22-618. Maintenance and Repair
Required.
SECTION 22615.Acquisition of Historic
Easements. (a) Neither the owner nor the person in charge
of a structure within a historic district or of a
The City may acquire, by purchase,donation or designated landmark shall permit the historic
• condemnation, historic easements in any area within landmark, site, or structure to fall into a state of
Us jurisdiction to the extent that the City Council, disrepair which may result in the deterioration of any
upon the recommendation of the Commission, exterior appurtenance or architectural feature so as to
determines that the acquisition will be in the public produce or tend to produce, in the judgment of the
interest. For the purpose of this section, the term Commission,a detrimental effect upon the chazzau of
"historic easement" means any easement, restriction, the district as a whole or the life and character of the
covenant, or condition running with the land, landmark or structure in question, including but not
designated to preserve, maintain, or enhance all or limited to:
part of the existing state of places of historic,
architectural, or cultural significance. (1) The deterioration of exterior walls or
other vertical supports;
SECTION 22616.Federal Grants. (2) The deterioration of roofs or other
horizontal members;
Where the Commission recommends the purchase
or condemnation of a historic landmark, site, or (3) The deterioration of exterior chimneys;
structure or any interest therein, and where the City
Council follows its recommendation,the City Council (4) The deterioration or crumbling of
may,wherever practicable,make use of federal grants exterior plaster or mortar;
as provided in the National Historic Preservation Act
of 1966. 16 U.S.C. 470 a seq. (1998). (5) The ineffective waterproofing of
exterior walls,roofs and foundations,including broken
windows or doors; or
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(6) The deterioration of any feature so as to SECTION 22-621. Separability. •
create or permit the creation of any hazardous or
unsafe condition or conditions. If any provision of this Article or its application
thereof to any person or set of circumstances is held
invalid, the remainder of this Article and the
SECTION 22.619. Penalties. application of those provisions shall not be affected
thereby.
(a) Any person who violates any provision of
this Article shall be guilty of a misdemeanor and shall
be punished by a fine of not more than one thousand Note: Specifically excluded from this Article are
dollars($1,000)and not less than one hundred dollars controls on interior changes and concern with
(S100),and/or by imprisonment for not more than one archeological resources or sites.
(I)year.
(b) Any person who files with the Commission
any application or request for a certificate of
appropriateness and who refuses to furnish, upon
demand by the Commission,any information relating
to such application or request,or who willfully makes
any false statement in the application or request, or
who, upon demand, willfully furnishes false
information to the Commission, shall be punished by
a fine of not more than five hundred dollars ($500) •
and/or by imprisonment for not more than ninety(90)
days.
(c) For the purposes of this Article, each day
during which there exists any violation of any
provision herein shall constitute a separate violation of
such provisions.
SECTION 22-620. Injunctions.
Wherever any person has engaged in or is about
to engage in any act or practice which constitutes or
will constitute a violation of Section 22-611 or 22-612,
the Commission may make application to the court for
an order enjoining the act or practice,or requiring the
person to refrain from the prospective violation or to
remedy the violation by restoring the affected property
to its previous condition.
•
22-6.10
•
HISTORIC PRESERVATION-EDITOR'S COMMENTARY
I. Introduction and Acknowledgments 250 N.E.2d 282 (III. App. Ct. 1969); Santa Fe v.
Gamble-Skogmo, 389 P.2d 13 (N.M. 1964); Opinion
The IMLA Model Historic Preservation of Justices, 128 N.E.2d 563 (Mass. 1955). Bur see
Ordinance is intended to assist local government State v. Seattle, 615 P.2d 461 (Wash. 1980) (ciry's
attorneys in drafting ordinances that will enable their police power did not extend to the designation of state-
respective jurisdictions to enact legislation for the owned buildings as landmarks); Lutheran Church in
creation and protection of historic districts and historic America v. New York, 316 N.E.2d 305 (N.Y. 1974)
structures. It is not intended to serve as a substitute (portion of landmarks preservation law purporting to
for independent research and analysis. This Model give preservation commission authority to infringe
revises and supersedes the prior Model Ordinance that upon free use of individual premises remaining in
appears as Sections 11-701 through 11-721 in the 1981 private ownership an invalid use of city's police
version of the NIMLO Model Ordinance Service. power).
Portions of this Model are based on code provisions
adopted by Ann Arbor, Michigan; Carlsbad, Designation of a particular building as historic is
California;Chtciunati, Ohio; Duluth, Minnesota; and generally called landmark designation. .See Penn
Glendale, California. Central, 438 U.S. 104. Neighborhoods and even
larger areas may be designated as historic districts and
•
H. Legal Analysis even buildings having no architectural or historic
significance that are located within these districts are
(a) Authority Generally subject to the jurisdiction of historic preservation
regulation. See Faulkner v. Town of Chestertown.42R
The United States Supreme Court has determined A.2d 879(Md. 1981)(regulation designed to preserve
that the "objective of preserving structures and areas not only structures of historic and architectural value
with special historic, architectural, or cultural but also their appurtenances and environmental
significance is an entirely permissible goal." Penn setting).
Cent. Tramp. Co. v. City of New York,438 U.S. 104,
130(1978). Indeed,the constitutionality and authority (b) Historic Preservation Commissions
of local governments to enact zoning laws for the
protection and preservation of historic sites also has 1. Composition
been determined to be consistent with the exercise of
its police power. Mayes v. City of Dallas, 747 F.2d The primary responsibility for administering
323, 324 (5h Cir. 1984); Maher v. City of New historic preservation regulations generally rests with
Orleans, 516 F.2d 1051, 1062 (5t Cir. 1975), cert. the creation of a historic preservation commission. To
denied,426 U.S.905(1976);A-S-PAssociates v. City "curb the possibility of abuse [of authority] by the
of Raleigh, 258 S.E.2d 444(N.C. 1979);Figarsky v. Commission"a historic preservation ordinance should
Historic Dist. Camm'n, 368 A.2d 163 (Conn. 1976): specify "the composition of that body and its manner
Dupont Circle Citizen's Ass'n v.District of Columbia of selection." Maher v New Orleans,516 F.2d 1051.
Zoning Comm'n, 355 A.2d 550(D.C.), cert. denied, 1062 (S° Cir. 1975). Historic preservation
429 U.S. 966 (1976); Rebman v. City of Springfield, commissions are generally comprised of architects,
•
22-6.11
/MLA Model Ordinance Service
historians,city planners,real estate professionals,and 747 F.2d at 324(ordinance provided principles and an •
lawyers,as well as business, and lay persons.Id. See administrative procedure adequate to assure that the
also Penn Central, 438 U.S. 104, 111 (preservation regulatory powers be exercised in accord with the
commission "a broad based, I 1-member agency legislative criteria); Maher. 516 F.2d 1051, 1062.
assisted by technical staff"). See also One World One Family Now v. City of Key
• West, 852 F. Stapp. 1005, 1012 (S.D. Vla. 1994)
2. Powers and Duties (discretion gave historic commission power to
discriminate and raised the specter of selective
The municipal police power encompasses the enforcement of ordinance).
right of historic preservation commissions to control
the demolition or alteration of historically significant The guidelines need not,however, "be so rigidly
structures.See Penn Centraltransponation Company drawn as to prejudice die outcome in each case,
v. City of New York,438 U.S. 104(denial of permit to precluding reasonable administrative discretion."
construct 50-story commercial tower over Grand Maher, 516 F.2d at 1062. See also Mayes v. City of
Central Station); Mayes v. City of Dallas, 747 F.2d Dallas, 747 F.2d at 325,A-S-P Associates v. Ciry of
323 (denial of permit to paint brick home and to Raleigh, 258 S.E.2d at 454; South of Second
construct a walkway with pylons across front lawn); Associates v. Georgetown,580 P.2d 807(Colo. 1978);
Maher v, City of New Orleans,516 F.2d 1051 (denial Hayes v.Smith, 167 A.2d 546(R.I. 1961). In Maher,
of permit to demolish cottage to construct seven the plaintiff filed suit for a declaration that the New
apartment complexes on site); Atlanta Ten v. City of Orleans historic preservation ordinance was
Atlanta, No. 1:88-CU-157-H7W (N.D. Ga. Jan. 10, unconstitutional after being denied a request to
1990)(denial of permit to demolish home where Gone demolish a building located in that city's historic
With The Wind authored);Bunnick v. City of Seattle, French Quarter. The plaintiff asserted that the denial •
719 P.2d 93(Wash. 1986)(owner of house in historic of the permit violated his right to due process because
district required to replace parapet); 900 C Street the ordinance provided the historic preservation
Associates v. Department of Housing and Connmuniry commission with inadequate standards and allowed for
Development, 430 A.2d 1387 (D.C. 1981) (owner arbitrary enforcement. The court, rejecting this
denied permit to demolish building designated historic assertion, concluded that the ordinance "provides
landmark). But see Committee of 100 on the Federal adequate legislative direction to the Commission to
City v. District of Columbia Department of Conswner enable it to perform its functions consonant with the
and Regulatory Affairs, No. 88-330 (D.C. Mar. 8, due process clause." Id. The court pointed out that
1990) (decision by government of the District of the ordinance also contained an "elaborate decision-
Columbia to allow demolition of structure in historic making and appeal process [which] creams another
district based on "special merit" unsupported by structural check on any potential for arbitrariness that
substantial evidence): Southern Nat. Bank v. Austin, might exist."Id;See also Mayes v. Ciry of Dallas,747
582 S.W.2d 229 (Tex. Civ. App 12'° Dist. 1979) F.2d at 326 (appeal process provided for ultimate
(preservation ordinance providing procedures for review by City Council).
obtaining building,removal,demolition,or alteration
permits was unconstitutionally defective for failing to (c) Constitutional Considerations
provide for final city council action after property
listed on agenda of landmarks commission). Historic preservation regulations are most often
challenged as a "taking- of property without just
To satisfy due process requirements, a historic compensation in violation of the Fifth Amendment.
preservation ordinance should set forth guidelines that Penn Central Transportation Company v. City of New
will aid a historic preservation commission in York, 438 U.S. 104; District lntown Properties
performing its duties. See Mayes v. City of Dallas, Limited v. District of Columbia, 198 F.3d 874 (D.C. •
22-6.12
Historic Preservation-Editor's Commentary
• Cir. 1999); Atlanta Ten v. City of Atlanta, No. permissible governmental goal, id. at 129, the Court
I:88-CU-157-HTW(N.D.Ga.);Maher v. City of New concluded that character of the city's action arose
Orleans, 516 F.2d 1051; Minnick v. City of Seattle, from a regulatory scheme"substantially related to the
719 P.2d 93; 900 G Street Associates v. Department promotion of the general welfare." Id. at 138.
of Housing and Community Development, 430 A.2d Applying the two remaining factors,the Court further
1387. The United States Supreme Court has held, concluded that the property owners did not establibh
however, that the burdens of landmark regulation do takings claim"simply by showing that they have been
not amount to a "taking" of property, at least where denied the ability to exploit a property interest that
the owner retains reasonable beneficial use of that they heretofore had believed was available for
property. See Penn Central, 438 U.S. 104, 137-38. development," id. at 130, and that there were other
Conversely, to permanently deny an owner the economic use besides sale available to the property
beneficial use of his property would constitute a taking owners. M. at 136-37.
for which the owner would have a right to
compensation. See Dempsey v. Boys' Club of St. Historic preservation regulations are also
Louis, Inc.,558 S.W.2d 262(Mo.Ct.App. 1977)(to challenged as violating rights guaranteed under the
deny a benevolent or humanitarian organization a First and Fourteenth Amendment. These cases
permit to demolish property in order to carry out and generally arise in the context of free exercise of
promote its chartered objectives and purposes may religion, see Rector, Wardens, and Members of the
effectively deprive such an organization of any Vestry of St. Bartholomew's Church v. City of New
practical use or benefit of ownership); Lutheran York, 914 F.2d 348 (2d Cir. 1990) (city's landmark
Church in America v. New York, 316 N.E.2d 305 preservation law did not abridge the free exercise of
(power given municipality to force the termination of religion even if it diminished the income of the church
• owner's free use of property short of condemnation by restricting uses to which church land could be put,
violated Fifth Amendment). as the church was not denied the ability to practice
religion or coerced in the nature of those practices);
In Penn Central, the owners of Grand Central freedom of expression, see Sciarrino v. City of Key
Terminal, a designated landmark, challenged a West,83 F.3d 364(11^Ch. 1996),cert. denied, 518
decision by the Landmarks Commission which denied U.S. 1092 (1997) (city had a substantial interest in
a permit for the construction of a 50-story commercial preventing harassment of pedestrians, reducing
tower above the terminal. The property owners pedestrian traffic, and reducing litter in its historic
argued that the denial operated as taking of property district; all of which were accomplished by
without just compensation because it deprived them of enforcement of the ordinance),One World One Family
any gainful use of the valuable art-rights above the Now v. pry of Key West, 832 F. Supp. 1005 (S.D.
terminal and significantly diminished the value of the Fla. 1994) (city did not shown that its aesthetic
terminal site. The Court determined that most concerns were sufficient to warrant abridgment of
regulatory takings should he considered on an ad hoc First Amendment rights);or equal protection,see City
basis weighing three primary factors: the regulation's of New Orleans v. Duke, 427 U.S. 297 (1976)
economic impact on the claimant; the regulation's (ordinance was rationally related to the purpose of
interference with the claimant's reasonable investment- preserving the appearance and customs valued by the
backed expectations; and the character of the French Quarter's residents and that tourists found
government action. Id. at 124.After establishing that attractive and gradual approach employed by utilizing
preserving structures and areas with special historic, "grandfather clause" furthered that purpose).
architectural, or cultural significance is an entirely
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22-6.13
IMLA Model Ordinance Service
III.References •
(I) Charles S. Rhyne, The Law of Local
Government Operations § 26.9, at 732 (1980 and
Supp. 1985).
(2) 8 McQuillan's Municipal Corp.§25.31(3rd
ed. 2000).
(3) Validity and Construction of Statute or
Ordinance Protecting Historical Landmarks, 18
A.L.R. 4h 990. § 12(1982).
(4) Historic Preservation Law Concerning
Private Property, 30 Urb. Law. 405(1998).
(5) The Due Process Issue In Zoning For
Hlstanc Preservation, 19 Urb. Law. 77(1987).
•
•
22-6.14