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HomeMy WebLinkAbout20190316AGENDA HISTORIC DISTRICT COMMISSION FOR WASHINGTON COUNTY, MARYLAND Workshop room #2001 WASHINGTON COUNTY ADMINISTRATION BUILDING 100 WEST WASHINGTON STREET March 6, 2019 7:00PM M REGULAR MEETING AGENDA — 7:00 PM A. Call to Order & Roll Call B. Minutes — January 16, 2019 February 6, 2019 C. Communications & Bills D. Unfinished Business 1. Continued discussion on demolition procedures and improvements E. Budget F. New Business G. Other Business H. Closed Session I. Adjournment * = written material enclosed \HIDC\A Mar 6 2019.DOC NOTICE IS GIVEN THAT THE HISTORIC DISTRICT COMMISSION MAY MEET IN CLOSED SESSION PURSUANT TO SECTION 10.508, STATE GOVERNMENT ARTICLE, ANNOTATED CODE OF MARYLAND. INDIVIDUALS REQUIRING SPECIAL ACCOMMODATIONS ARE REQUESTED TO CONTACT THE WASHINGTON COUNTY PLANNING DEPARTMENT. CONTACT PLANNING DEPARTMENT AT (240) 313-2430 VOICFI CDD TO MAKE ARRANGEMENTS NO LATER THAN TEN (10) WORKING DAYS PRIOR TO THE MEETING. These minutes were recorded on a cassette tape. MINUTES HISTORIC DISTRICT COMMISSION FOR WASHINGTON COUNTY January 16, 2019 A. CALL TO ORDER AND ROLL CALL The regular monthly meeting of the Historic District Commission was called to order on Wednesday, January 16, 2019 at 7:00 p.m. in Room 2001 of the Washington County Administration Building, 100 West Washington Street, Hagerstown, Maryland. Members present included: Tom Clemens, Edie Wallace, Ann Aldrich, Gary Rohrer, Vernell Doyle and Ex -Officio Jeff Cline, Also present was Staff member Stephen Goodrich, Director, Washington County Department of Planning & Zoning. B. MINUTES Motion and Vote: Mr. Clemens made a motion to appi presented. The motion was seconded by Ms. Doyle and C. COMMUNICATIONS AND BILLS None D, UNFINISHED BUSINESS None E. BUDGET None F. NEW BUSINESS of the March 3, 2018 meeting as Mr. Goodrich presented for review and recommendation a demolition permit application for 18461 Manor Church Road, Washington County Historic Inventory Site #WA -II -183. It was noted that the property is not listed on the National Register of Historic Places, it is not in an historic district, and it does not have the County's historic preservation floating zone. Mr. Robert Householder, the owner of the property, was present at the meeting and addressed the Commission. He noted the basement had a great deal of water sitting in it a few weeks ago, which was not there at the time he purchased the property. He believes this is due to a spring that is located in the basement. This has caused the mortar joints to erode severely. He stated that many of the beams are rotted on the first floor, the floors are buckling and there is a great deal of mold. He showed members pictures of the interior of the house. It is the owner's intent to demolish the house and several outbuildings and construct a new home on the property in a different location. Mr. Householder stated that he had representatives from the National Park Service look at the stone on the house because he was planning to donate it for re -use; however, he was told that the stone has deteriorated and could not be reused. Discussion and Comments: Mr. Rohrer believes that the structure can be restored and rehabilitated; however, it will be costly. He explained that several stone arch bridges have been saved around the County and the Court House in downtown Hagerstown was restored to preserve the County's heritage. These minutes were recorded on a cassette tape. Ms. Doyle asked the owner if he would consider keeping the house on the property if other groups interested in historic preservation would help to restore the structure. Mr. Goodrich explained that generally only one principal residence is permitted on a property; however, there are alternatives that could be used such as creating a separate parcel for the house or filing an appeal to allow more than one principal structure. Mr. Goodrich also noted there are County tax credits available for exterior restoration and personal income tax credits for both interior and exterior restoration from the State. Easements for land preservation are also available, which would pay the owner for an easement. Ms. Wallace expressed her opinion that Manor Church Road has some of the best examples of historic structures that shows how Washington County was settled and why is was settled. She believes that this house is an integral part of the area and to Washington County as a whole. Public Comment: Paula Stoner Dickey, writer of the Historic Sites Survey form, was present at the meeting, She stated that many of the homes in that area were built over springs. To her knowledge, the information contained in the survey is still accurate. Michael Amontree briefly discussed the tax credits available and the benefits of using these credits. He expressed his opinion that building a new house citing the foundation and frame work are already professionally prepared of the property if it is demo Leslie Owing encouraged the owner to seek an altf Brad Wyand gave a brief history of the property saved as part of the County's history. Becky Motion and Vote: Church Road because it in Washington County. T Doyle and unanimously ai Mr. Goodrich stated that application must be prese Discussion deter and/or deny th Ordinance or a public Mr. Goodrich presented an less expensive than restoring an old structure He recommended that a recorded drawing be to demolition of the structure. that the structure should be also encouraged the owner to save this historic house. ce made a motion to oppose the demolition of the dwelling at 18461 Manor significant building that is part of a collection of significant historic structures building is intact and can be repaired. The motion was seconded by Ms. wed. cause the Historic District Commission is opposed to the demolition, the i to the Planning Commission at its February meeting for its input. Mr. Rohrer expressed his opinion that the County should have a provision to lition of historic structures. Other members agree that there should be an s in place for preservation policies. from the National Park Service requesting the HDC to be a consulting party on the proposed C & 0 Canal Headquarters at the former Miller Lumber property in Williamsport. A reply was sent to NPS affirming the HDC's interest in being a consulting party; therefore, the Commission will be notified of future meetings. Comments will be solicited. There was a brief discussion regarding the historic aspects of the property. G. OTHER BUSINESS These minutes were recorded on a cassette tape. Election of Officers Motion and Vote: Mr. Rohrer made nominated Mr. Clemens to serve as Chairperson for the HDC. The motion was seconded by Ms. Doyle and unanimously approved. H. CLOSED SESSION None I. ADJOURNMENT Mr. Clemens made a motion to adjourn the meeting at p.m. The motion was seconded by Mr. Rnhrer and so ordered. MINUTES HISTORIC DISTRICT COMMISSION FOR WASHINGTON COUNTY February 6, 2019 A. CALL TO ORDER AND ROLL CALL The regular monthly meeting of the Historic District Commission was called to order on Wednesday, February 6, 2019 at 7:00 p.m. in Room 2001 of the Washington County Administration Building, 100 West Washington Street, Hagerstown, Maryland. Members present included: Tom Clemens, Edie Wallace, Ann Aldrich, Gary Rohrer, Vernell Doyle and Ex -Officio Jeff Cline, Also present was Staff member Stephen Goodrich, Director, Washington County Department of Planning & Zoning. B. MINUTES None The Commissio Advisory Commi the Planning Co in the demolition n with a letter received from the Washington County Historical lition permit application that was recently reviewed by the HDC and ssion would like to eventually make recommendations for changes Board of County Commissioners for consideration. Adoption of a delayed demolition process: Currently being considered in Frederick County. This would not prevent the demolition; however, it would delay the process in order for the Commission and staff to discuss alternatives with property owners. Members discussed creating a list of criteria to be used when evaluating specific issues. Fine for demolition without a permit: The Commission believes that the current fine is too low. However, instead of, or in addition to a fine, the Commission suggested that if the demolition process is not followed a building permit to build on the land be withheld for a specified amount of time. Mr. Goodrich noted that this may not be allowed but he would further investigate. Fine for demolition without a permit be calculated at a percentage of the assessed value of the property. Voluntary incentives for saving historic structures when development of property is proposed. There was a discussion with regard to the incentives already in place. Discussions focused on the present HP (Historic Preservation) zoning district, how to encourage property owners to apply for the zoning, and a comprehensive rezoning of all historic properties. There were discussions relative to creating a delayed demolition policy, the process involved, and having discussions with the Planning Commission. Mr. Goodrich suggested making revisions to the current policy before meeting with the Planning Commission. He will gather information from other jurisdictions to see how they are handling these issues and distribute the information. The Commission also asked how many times the fine for demolishing an historic structure without a permit has been issued and paid. H. CLOSED SESSION None I. ADJOURNMENT The meeting was adjourned at 8:10 p.m T. Goodrich, Director A National Trust preservation law publication .. Protecting Potential Landmarks Through Demolition Review by Julia H. Miller ®, c I. r r r r r NATIONAL TRUST ,[orHISTORIO PRESERVATION® 1785 Massachusetts Avenue, NW Washington, D.C. 20036 202.588.6035 The National Trust for Historic Preservation provides leadership, education, and advocacy to save America's diverse historic places and revitalize our communities. Support for the National Trust is provided by membership dues, endowment funds, individuals, corporate and foundation contributions, and grants from federal and state agencies. The National Trust's Law Department provides educational materials and workshops on legal developments in historic preservation law for the benefit of citizens, organizations, and governmental institutions throughout the United States. Through this work, the Trust helps communities protect their heritage, their homes and businesses, their neighborhoods, and their history. For further information, contact the Law Department at 202-588-6035 or send an email to law@nthp.org. Also visit our website at www.nthp.org/law.html. © National Trust for Historic Preservation 2006. All rights reserved. For additional copies, reproduction permission, or for information about our other legal publications, please contact the National Trust's Law Department at the contact information listed above. Cover Photo: Redwood Street Historic District, Baltimore, MD (Historic American Buildings Survey, NPS) Protecting Potential Landmarks through Demolition Review By Julia H. Miller* Last year, the wrecking ball fell twice in downtown Baton Rouge —almost. Two historic buildings, the 1910 S.H. Kress Building, the site of a 1960 civil rights protest at the then all -white, lunch counter of the five and dime, and the adjacent Welsh & Levy Building, built in 1885, were spared only after the owner backed off his plans to demolish the buildings for a surface parking lot in response to public outcry. The fate of a third building, the Old Baton Rouge Ice Plant, proved less fortunate. This 1880s one-story brick building was demolished for a riverfront condominium project. Once used for ice production, the building had been located on the Mississippi River on one of the city's few remaining intact blocks dating from the Nineteenth Century. Baton Rouge has since taken steps to protect its unprotected resources and other communities can too. Through the adoption of a "demolition review ordinance," older build- ings (generally those over 50 years) cannot be demolished without review by a preservation commission or special committee to determine whether a building is historically significant. If the building qualifies as significant, then a commission may delay the issuance of a demo- lition permit to explore preservation alternatives, such as designating the building as a his- toric landmark or finding a purchaser who may be interested in rehabilitating the building. What is a Demolition Review? Demolition review is a legal tool that provides communities with the means to ensure that potentially significant buildings and structures are not demolished without notice and some level of review by a preservation commission. This process creates a safety net for his- toric resources to ensure that buildings and structures worthy of preservation are not inad- vertently demolished. Demolition review does not always prevent the demolition of historically significant buildings or structures. Rather, as the name suggests, it allows for review of applications for demolition permits for a specific period of time to assess a building's historical significance. If the building is deemed significant, then issuance of the permit may be delayed for a spe- cific period of time to pursue landmark designation, or alternatively, to explore preservation solutions such as selling the property to a purchaser interested in rehabilitating the structure or finding alternative sites for the proposed post -demolition project. What is the Difference between "Demolition Review Laws" and "Demolition Delay" or "Interim Protection" Provisions used in Preservation Ordinances? Demolition review laws are typically, but not exclusively, separate and distinct from his- toric preservation ordinances. They preclude the demolition of any building or structure over a certain age, or any building or structure identified for protection —regardless of signifi- cance —for a specific period of time, to allow for a determination of historical or architectural merit. Historic properties may or may not be designated as a landmark at the culmination of this process, depending upon a law's specific terms, and such laws may or may not include a `Special Counsel and Legal Education Coordinator, National Trust for Historic Preservation "demolition delay" or "waiting period" component The nomenclature can be confusing. Demolition review laws are sometimes called "demolition delay ordinances" or simply, "demolition ordinances." Demolition delay provisions in historic preservation ordinances are used to prevent the demolition of buildings or structures that have already been designated as historic landmarks or as contributing structures in a historic district for a specific amount of time, usually rang- ing from 6 to 24 months. During that time, the preservation commission, preservation or- ganizations, concerned citizens, and others may explore alternatives to demolition, such as finding a purchaser for the structure or raising money for its rehabilitation. These provisions are typically used by communities that lack the authority to deny demolition permits. For example, in North Carolina, local jurisdictions generally only have the authority to delay a demolition permit up to 365 days unless the structure at issue has been determined by the State Historic Preservation Officer to have "statewide significance." See N.C. Gen. Stat. § 160A.400.14. Interim protection provisions are also found in preservation ordinances. They preclude the demolition or alteration of buildings or structures during the period in which the build- ing is under consideration for historic designation. The objective is to preserve the status quo pending designation and to prevent anticipatory demolitions. For further information, see Edith M. Shine, "The Use of Development Moratoria in the Protection of Historic Re- sources," 18 PLR 3002 (1999). Why Do Communities Adopt Demolition Review Procedures? Demolition review procedures help to prevent the demolition of historically significant buildings. Given the vast numbers of older buildings in cities and towns across the United States, it is virtually impossible for a community to identify all buildings that should be pro- tected under a historic preservation ordinance in advance. By establishing a referral mecha- nism, communities can be assured that buildings meriting preservation will not fall through the cracks. The delay period provides an opportunity for the municipality or other interested parties to negotiate a preservation solution with the property owner, or to find persons who might be willing to purchase, preserve, rehabilitate, or restore such buildings rather than demolish them. Demolition review procedures have also been adopted to protect buildings that may not meet the standards for designation but nonetheless embody distinguishing features that help to make a community an attractive place to live or work. For example, demolition review provisions are being used to address the proliferation of "teardowns" in many of our older neighborhoods. By delaying demolition for a period of time, concerned residents may be able to negotiate the preservation of character -defining houses on a case -by -case basis. See, e.g. Santa Monica, California, and Highland Park, Illinois. Which Properties are Subject to Demolition Review Procedures? Demolition review ordinances typically set forth objective criteria for determining which properties are subject to review. For example, a demolition review ordinance may require some level of review for all buildings built before a specific date or all buildings that have attained a certain age on the date the permit application is filed. Many communities use "50 years" as the critical benchmark. See, e.g. Boston, Massachusetts, Boulder, Colorado, and New Castle, Delaware. A few jurisdictions have opted for a shorter time period, largely in recognition of their younger building stock, see, e.g. Santa Monica, California (which uses a 40 -year benchmark(, and Gainesville, Florida (all structures listed in the state's "master site 2 file" and/or 45 years of age). Still others utilize a specific date. See, e.g. Alameda, California, and Weston, Massachusetts, which protect all buildings constructed prior to 1945. Alternatively, the demolition ordinance may only apply to properties identified on a his- toric survey or listed on a state historic register or the National Register of Historic Places. Chicago, for example, requires review for the roughly 6,200 buildings designated as "red" or "orange" on its 1996 Historic Resources Survey. Montgomery County, Maryland, stays the issuance of a demolition permit for properties included on its Locational Atlas and Index of Historic Sites. Finally, some communities limit the scope of protection afforded to buildings located within a specific geographic area. Baton Rouge's newly -enacted demolition ordinance, for example, applies only to its downtown buildings. Boston's law governs any buildings located in its downtown area, Harborpark, and neighborhood design overlay districts, in addition to all those that are at least 50 -years old. Keep in mind that the viability of this system may depend upon an applicant's represen- tation or a permit official's ability to verify or accurately determine a building's age. Boston addresses this issue by insisting that all demolition permit applications be referred to the city's landmark commission. Staff to the commission makes the determination as to whether the building is subject to review. In Wilton, Connecticut, the burden of establishing the age of the building rests on the demolition permit applicant. Applications must include a statement regarding the size and age of the building or structure to be demolished with verification through independent re- cords such as tax assessment records or the city's cultural resource survey. Santa Monica bases its age determination on the date the original permit for the building or structure was issued. Alameda, California's law provides that the age is to be determined by review of city records. Weston, Massachusetts, protects against the potential problem that the date of a building or structure cannot be determined by record by also requiring the review of all prop- erties of "unknown age." What Actions Generally Trigger Demolition Review? All demolition review procedures are triggered by the filing of an application for a demo- lition permit. The scope of demolition work requiring review, however, varies from jurisdic- tion to jurisdiction. In addition, requests for permits to move or substantially alter buildings may also require review. In Boulder, demolition review is required for the demolition or removal of any building over fifty years old. Demolition includes the act of either demolishing or removing— • Fifty percent or more of the roof area as measured in plan view (defined as the view of a building from directly above which reveals the outer perimeter of the building roof areas to be measured across a horizontal plane); or • Fifty percent or more of the exterior walls of a building as measured contiguously around the "building coverage"; or • Any exterior wall facing a public street, but not an act or process which removes an exterior wall facing an alley. [Illustrations omitted.] To meet the exterior wall retention standard, • The wall shall retain studs or other structural elements, the exterior wall finish, and the fully framed and sheathed roof above that portion of the remaining build- ing to which such wall is attached; • The wall shall not be covered or otherwise concealed by a wall that is proposed to be placed in front of the retained wall; and • Each part of the retained exterior walls shall be connected contiguously and without interruption to every other part of the retained exterior walls. In Davis, California, the city's demolition review procedures apply to "the destruction, removal, or relocation of a structure not classified as an 'incidental structure,' or the perma- nent or temporary removal of more than twenty-five percent (25%) of the perimeter walls of a structure." Incidental structures are accessory buildings such as sheds, fences, play struc- tures, and so forth. In Newton, Massachusetts, the demolition review requirement applies to any permit, without regard to whether it is called a demolition permit, alteration pennit, or building permit, if it involves total and partial demolitions. A "total demolition" is "[t]he pulling down, razing or destruction of the entire portion or a building or structure which is above ground regardless of whether another building or structure is constructed within the foot- print of the destroyed building or structure." A "partial demolition" is "[t]he pulling down, destruction or removal of a substantial portion of the building or structure or the removal of architectural elements which define or contribute to the character of the structure." A few jurisdictions have narrowed the number of applications requiring review by limit- ing referrals to projects entailing the demolition of at least 500 square feet of gross floor area. See, e.g., Concord, New Hampshire, and Monroe, Connecticut. How is Demolition Review Accomplished? Under typical demolition review procedures, the permitting official is directed to refer a demolition permit application to a review body for an initial or preliminary determination of significance. In San Antonio, for example, all demolition permits are referred to the city's Historic Preservation Officer (HPO) to determine within 30 days whether or not a building or structure is historically significant. If the HPO finds the building significant, the HPO is re- quired to forward the application to the Historic and Design Review Commission (HDRC) for review and recommendation as to significance. If the HDRC concurs in the HPO's finding of significance, then the Commission must recommend designation to the City Council. Buildings and structures not deemed significant at any time during these proceedings may be demolished. San Antonio Demolition Review Process Santa Monica and Chicago also delay issuance of a demolition permit to allow for the landmark designation of the building, if warranted. In Santa Monica, the demolition permit may be issued if no application to designate is filed within 60 days. Chicago's demolition or- dinance delays issuance of permit up to 90 days "in order to enable the department of plan- ning and development to explore options to preserve the building or structure, including, but not limited to, possible designation of the building or structure as a Chicago Landmark in accordance with Article XVII of Chapter 2-120 of this code." Some demolition review laws simply provide for a delay in the issuance of a permit to explore preservation -based solutions. New Castle County, Delaware utilizes this approach. The county may delay issuance of a demolition permit for any building "thought to be over 50 years old" for a period up to 10 days, during which time the Historic Review Board must make a determination whether the building is historically significant. If the building is deemed significant, then the board may order further delay up to 9 months from the date the application was initially filed to seek demolition alternatives. New Castle County Demolition Review Process In Boston, the Inspectional Services Department must transmit a copy of an application for a permit to demolish a building to the Boston Landmarks Commission within three days. The commission staff, in return, must make a determination within 10 days as to whether the building is (1) subject to review and (2) significant under specific criteria. If the property is determined not to be significant, then no further review is required. If the property is sig- nificant, the commission must hold a public hearing to determine whether the building should be subject to demolition delay. A decision on whether to delay the permit must be made within 40 days from the date the demolition permit application was initially filed. To invoke the delay period, the commission must find that, in considering the public in- terest, it is preferable that the building be preserved or rehabilitated rather than demolished. Factors for consideration include: (a) the building's historic, architectural, and urban design significance; (b) whether the building is one of the last remaining examples of its kind in the neighborhood, the city, or the region; and (c) the building's condition. If the commission finds that the building is subject to demolition delay, issuance of the demolition permit may be delayed for up to 90 days from the close of the public hearing. A "Determination of No Feasible Alternative" may be issued during the public hearing or prior to the expiration of the 90 -day period if the commission finds that there are no feasible alternatives to demoli- tion. Who Makes the Determination of Significance? In most cases, the historic preservation commission makes the determination of signifi- cance, with initial review by the staff to the commission. See, e.g., Boston, Massachusetts, Davis, California, and San Antonio, Texas. Variations, however, do exist from community to community. In Santa Monica, for example, demolition permit applications are forwarded di- rectly to each of the members of the landmarks commission. In Boulder, initial review is per- formed by the city manager and two designated members of the landmarks board. If the property is significant, then the matter is referred to the city's landmarks board. In the cities of Keene and Concord, New Hampshire, the demolition review committee, comprised of three members of each city's heritage commission, is responsible for conducting the initial review, making an official determination of significance, and holding a meeting to explore preservation alternatives. What Evidence Must be Submitted for Review? Most jurisdictions require the submission of sufficient information to enable the decision maker to make an informed decision on a building's age and significance. In Santa Monica, for example, a completed application form must be submitted to the landmarks commission, along with a site plan, eight copies of a photograph of the building, and photo verification that the property has been posted with a notice of intent to demolish. Boston requires the submission of photographs of both the subject property and any sur- rounding properties with a demolition permit application. In addition, the applicant must provide a map identifying the location of the property, a plot plan showing the building foot- print and those in the immediate vicinity; plans for site improvements, including elevations if a new structure is planned, and the notarized signatures of all owner's -of -record along with proof of ownership. Additional materials may be required if a public hearing on the issue of whether the property is "preferably preserved" is held. Items such as a structural analysis report, adaptive reuse feasibility studies, the availability of alternative sites for the proposed project, effects of post -demolition plans on the community, and other materials the commis- sion may need to make a feasibility determination may be requested. Newton, Massachusetts has comparable requirements. In the case of partial demolitions involving alterations or additions, the town also requires the submission of proposed plans and elevation drawings for the affected portion of the building. What Standards are Used to Determine Historical Significance? In Gainesville, Florida, the preservation planner is essentially charged with determining whether the structure would qualify as a landmark under the city's historic preservation or- dinance. A demolition permit may be issued if the planner finds that the structure "is not designed in an architectural 'high style' or a recognized vernacular building pattern, and it does not have historic events or persons associated with it." In New Castle County, Delaware, the Historic Review Board makes a determination as to whether the building or structure is historically significant, based on the criteria for listing in the New Castle County Register of Historic and Architectural Heritage. In Baton Rouge, Louisiana, the city's planning commission is charged with determining whether "[t]he structure is individually listed on the National Register of Historic Places or included in a National Register Historic District, or the structure is classified as National Register Eligible or Major Contributing in the historic building survey of the Central Busi- ness District." 6 In Westfield, Connecticut, individual findings of significance are not made. Rather, to in- voice the 90 -day, demolition delay period, the structure must be listed in or located within a historic district listed in the National Register of Historic Places, the State Register of His- toric Places, the Westfield Historical Commission Register of Historic Places, or a local his- toric district created under the city's historic preservation ordinance. To be included on the city's historic register, the property must "contain or reflect distinctive and demonstrably important features of architectural, cultural, political, economic or social significance to the City of Westfield." In Boulder, a preliminary finding on whether there is "probable cause" for designation as an individual landmark is made. If there is "probable cause," then the matter is required to be referred to the landmark commission for a public hearing on the eligibility of the building for designation as a landmark. In addition to determining whether the building meets the objectives and standards for landmark designation under its preservation ordinance, the Boulder commission must also take into account: (1) "[t]he relationship of the building to the character of the neighborhood as an established and definable area;" (2) "the reasonable con- dition of the building;" and (3) "the reasonable projected cost of restoration or repair." If the building is found to merit designation, then a delay period not to exceed 180 days from the date the demolition permit application was initially filed may be involved. Cities and towns enacting demolition review procedures in Massachusetts may not in- voke a delay period until the building or structure at issue is found to be both "significant" and "preferably preserved." The term "preferably preserved" essentially means that it is in the public's interest to preserve the building. In some cases, a determination may be made to seek landmark status. Newton's "demolition delay ordinance" is illustrative. Under the city's law, a significant building is "any building or structure which is in whole or in part fifty years or more old" and which: (1) is in any federal or state historic district, or if in any local historic district, is not open to view from a public street, public park or public body of water; or (2) is listed on or is within an area listed on the National Register of Historic Places or eligible for such listing, or listed on or is within an area listed on the State Register of Historic Places, or eligible for such listing; or (3) has been determined by the commission or its designee to be a historically significant building after a finding that it is: a) importantly associated with one or more historic persons or events, or with the architectural, cultural, political, economic or social history of the City of Newton, the Commonwealth of Massachusetts or the United States of Amer- ica: or b) historically or architecturally important by reason of period, style, method of building construction or association with a particular architect or builder, either by itself or in the context of a group of buildings or structures; or c) located within one hundred fifty (150) feet of the boundary line of any federal or local historic district and contextually similar to the buildings or struc- tures located in the adjacent federal or local historic district. A building or structure is "preferably preserved" if issuance of the requested demolition permit "would result in the demolition of a historically significant building or structure whose loss would be detrimental to the historical or architectural heritage or resources of the City of Newton." What Procedures are Used to Evaluate Significance? The notice and hearing requirements set forth in demolition review ordinances normally address two concerns. One is meeting the constitutional rights of the applicant to due proc- ess. The other is ensuring that the community knows about the pending demolition and has a meaningful opportunity to participate in the proceedings. Determinations of significance are generally held upon review by a city's historic preservation commission at a public hear- ing. Notice. Individual notice is often required when specific findings are made affecting the applicant's request for a demolition permit. For example, in Boulder, notice must be provided to the applicant upon a finding by an initial review committee that probable cause exists that the building or structure may be eligible for designation as an individual landmark. The ap- plicant is also entitled to notice of the public hearing before the full commission regarding the property's eligibility for landmark status and notice of the commission's final decision to stay the demolition permit for a period of 180 -days to explore preservation alternatives. Public notice requirements under demolition review ordinances can also be extensive. In situations where delay periods may be invoked for the purpose of exploring preservation al- ternatives, public awareness can be critical. In Monroe, Connecticut, for example, concerted efforts are made to inform the public. The city's ordinance requires publication of notice in newspaper of general circulation and individually -mailed notice to the city's historic district commission, the town historian, the Monroe Historical Society, and all abutting property owners. In addition, the city is required to post for at least 30 days a 36 by 48" sign visible from nearest public street with the words "DEMOLITION" printed on the sign with the let- ters being at least 3 inches in height. Among other requirements, Gainesville, Florida, re- quires that the historic preservation planner post a sign on the property "notifying the public of the owner's intent to demolish the structure in order to allow interested parties to come forward and move the structure upon consent of the owner." Hearings. Public hearings are typically required under demolition delay provisions to de- termine whether the building or structure posed for demolition is historically significant. See, e.g. Baton Rouge, Louisiana, Boston, Massachusetts, Boulder, Colorado, Westfield, Con- necticut, Gainesville, Florida, and Concord, New Hampshire. Some demolition delay laws also use the public hearing format to consider alternatives for demolition delay. The West- field, Connecticut, ordinance, for example, specifically states that "[t]he purpose of said Hearing shall be to discuss, investigate and evaluate alternatives that will allow for the pres- ervation of such buildings, structures, features/components or portions thereof." It provides, however, that [t]he applicant's intended use/reuse of the property is not a topic of the hear- ing." How Long Do Delay Periods Typically Run? The delay periods invoked under demolition review ordinances run from 30 days to two - years, with most falling within the 90 -day to six-month range. In some jurisdictions, the length of the delay period may be prescribed by state law. For example, in Connecticut, § 29- 406(bj of the Connecticut General Statutes authorizes any town, city, or borough to impose a waiting period of not more than ninety days. Also note that the effective length of equiva- lent waiting periods can vary significantly, depending upon the date upon which the delay is measured. Boston, for examples, measures its 90 -day delay period from the close of the public hearing. Chicago, in comparison, measures its 90 -day delay period from the application filing date. Communities with longer delay periods sometimes include specific provisions that en- able the issuance of a demolition permit prior to the expiration of the waiting period if spe- cific conditions are met. For example, in Lake Forest, Illinois, the city's 2 -year waiting period for all demolition permits may be waived or shortened, upon a finding by the Building Re- view Board, after holding a public hearing, that — a. The structure itself, or in relation to its environs, has no significant historical, architectural, aesthetic or cultural value in its present restored condition; or b. Realistic alternatives (including adaptive uses) are not likely because of the na- ture or cost of work necessary to preserve such structure or realize any appreciable part of such value; or c. The structure in its present or restored condition is unsuitable for residential, or a residentially compatible use; or d. The demolition is consistent with, or materially furthers, the criteria and pur- pose of this section and Section 46-27 of the Zoning Code. In Newton, Massachusetts a demolition permit may be issued before the expiration of the city's 12 -month delay period if the Newton Historical Commission is satisfied that the permit applicant: • has made a "bona fide, reasonable and unsuccessful effort to locate a purchaser for the building or structure who is willing to preserve, rehabilitate or restore the build- ing or structure; or • has agreed to accept a demolition permit on specified conditions approved by the commission. See, also, Boston's Demolition Delay Ordinance, which provides for the issuance of a finding of "no feasible alternative to demolition" at the public hearing or any time prior to the expiration of the delay period. Also note that some jurisdictions insist that the property be secured during the demolition delay period. In Boston, for example, the applicant is required to secure the building during the review period. If the building is lost during this period due to fire or other causes, then the action is treated as an unlawful demolition. How are Demolition Alternatives Explored? The historic preservation commission usually sits at the center of the preservation effort. The commission will work with the owner and other interested organizations, public agen- cies, developers, and individuals who may be instrumental in developing a workable solu- tion. Boston's demolition review ordinance specifically identifies who must be asked to par- ticipate in the city's investigation of alternatives. In addition to the owner, the Landmarks Commission must invite the Commissioner of Inspectional Services, the Director of the Bos- ton Redevelopment Authority, and the Chairperson of the Boston Civic Design Commission, and any other individual or entity approved by the applicant. In Boulder, the Landmarks Board may "take any action that it deems necessary and consistent with this chapter to pre- serve the structure, including, without limitation, consulting with civic groups, public agen- cies, and interested citizens." The range of alternatives that may be pursued may be specifically identified in the ordi- nance or left to the preservation commission's discretion. In addition to considering the pos- sibility of landmark designation, the moving of a building to an alternative location, and the salvaging of building materials, the Boulder Landmarks Board is empowered to "take any ac- tion that it deems necessary ... to preserve the structure." In Wilton, Connecticut, the Wil- ton Historic District Commission or the Connecticut Historical Commission is charged with "attempting to find a purchaser who will retain or remove such building or who will present some other reasonable alternative to demolition" during the 90 -day delay period. Alternatives that are often considered include the possibility of rehabilitating the build- ing with the assistance of tax incentives or other financial assistance; adapting the building to a new use; removing the building to another site; finding a new owner who is willing and able to preserve the building; incorporating the building into the owner/applicant's redevel- opment plans; and using an alternative site for the owner/applicant's project. The submission of specific information pertaining to the property is generally required. An applicant, for example, may be required to submit a structural engineer's report and in- formation on the cost of stabilizing, repairing, rehabilitating, or re -using the building, plans for the property upon demolition, and the availability of other sites that would meet the ap- plicant's objectives. What Exceptions May Apply to the Strict Application of Demolition Review Laws? Many demolition review laws recognize exceptions upon a showing of economic hard- ship or where the public safety is at stake. In Gainesville, Florida, for example, the demoli- tion delay period may be waived by the historic preservation board if the applicant can dem- onstrate "economic hardship." As is generally the case with the consideration of economic hardship claims under historic preservation ordinances, the burden of proof rests on the ap- plicant to show that retention of the property is not economically viable and the applicant must set forth specific relevant information to make his or her case. Virtually every demolition review law recognizes an exception on public safety grounds. Gainesville also provides that "any structure that has been substantially burned or damaged by an event not within the landowner's control with more than 50 percent of the structure affected" may also be demolished, regardless of the building's significance. Weston, Massachusetts provides the following exception: Emergency Demolitions Notwithstanding the following provisions, the Building Inspector may issue a demo- lition permit at any time in the event of imminent and substantial danger to the health or safety of the public due to deteriorating conditions. Prior to doing so, the Building Inspector shall inspect the building and document, in writing, the findings and reasons requiring an emergency demolition, a copy of which shall be forwarded immediately to the Commission. Before allowing emergency demolition, the Build- ing Inspector shall make every effort to inform the Chairperson of the Commission of his intention to allow demolition before he issues a permit for emergency demoli- tion. No provision of this by-law is intended to conflict with or abridge any obligations or rights conferred by G.L.c.143 regarding removal or demolition of dangerous or aban- doned structures. In the event of a conflict, the applicable provisions of Chapter 143 shall control. Once the Delay Period Expires, What Other Restrictions May Apply? Some jurisdictions also require the submission of documentation of the property and/or the salvage of significant architectural features prior to the issuance of the demolition per- mit. Boulder, Colorado, expressly authorizes the city manager to require the submission of documentation about the building prior to the issuance of a demolition permit, such as a de - 10 scription of significant events, information on its occupants, photographs, plans, and maps. In Keene, New Hampshire, the demolition review committee is required to "photographi- cally document the building" prior to demolition. In addition, the salvage of significant ar- chitectural features is encouraged. How axe Demolition Review Ordinances Enforced? Experience has shown that historic buildings will be demolished, without regard to pro- tections against demolition, if the ramifications for non-compliance are minor or insignifi- cant. Accordingly, communities generally seek to establish penalties that will, in fact, dis- courage violations from occurring. Commonly used penalties, for example, include the impo- sition of significant fines for each day of the offense, and the preclusion of a permit to de- velop or occupy the property for specific period of time. In New Castle County, Delaware, the county attorney is authorized by ordinance "to take immediate action prosecute those responsible" for the demolition of structures deter- mined to have historic significance prior to the issuance of a demolition permit. In addition, building permits for the parcel affected may be withheld for a period of one to three years. Violators of the demolition ordinance in Monroe, Connecticut, may be subject to a fine amounting to the greater of one thousand dollars or the assessed value of the property for each violation. In Highland Park, Illinois, a person who violates the demolition review ordi- nance may be assessed a fine equal to "90 percent of the fair market value of the cost of the replacement of such regulated structure." Newton, Massachusetts, authorizes the imposition of a $300 fine and two year ban on the issuance of a building permit against anyone who demolishes a historically significant building or structure without first obtaining and fully complying with the provisions of a demolition permit issued in accordance with its demolition review ordinance. However, a waiver on the building permit ban may be obtained in instances where reuse of the property would "substantially benefit the neighborhood and provide compensation for the loss of the historic elements of the property" either through reconstruction of the lost elements or sig- nificant enhancement of the remaining elements. As a condition to obtaining the waiver, however, the owner must execute a binding agreement to ensure that the terms agreed to are met. Do Demolition Delay Ordinances Work? On December 15, 2003, a Chicago Tribune article written by architectural critics, Blair Kamin and Patrick T. Reardon, made headline news. Kamin and Reardon reported that, in a year's time, only one of 17 buildings slated for demolition had been preserved under the city's much acclaimed "demolition delay ordinance." The critics asserted that the city's much -touted effort to preserve the buildings coded red or orange on Chicago's 1996 Historic Resources Survey through the imposition of a 90 -day waiting period on demolition permits, wasn't working. They attributed the loss of the buildings to the city's failure to make preser- vation a priority and by not providing sufficient legal protections and financial incentives to get the job done. In the same article, Kamin and Reardon also reported that the Chicago Landmarks Divi- sion had made a contrary assessment. Sixteen out of the 17 orange -rated buildings posed for demolition were not recommended for designation because they had failed to meet the crite- ria for landmark status and the one building that was saved would have been demolished but for the demolition delay ordinance. It cannot be denied, as Kamin and Reardon noted, that demolition review laws seem to support an "ad hoc" approach to landmark designation. The buildings being designated are 11 those threatened by demolition rather than those most deserving. Also, the question of what is preserved often depends upon who cares about the matter, rather than the historical or ar- chitectural merit of the building at issue. Keep in mind, however, that the need for such laws really stems from the fact that it is impossible to designate every building worthy of protection in advance, especially in cities like Chicago, where over 17,000 buildings have been listed on the city's historic survey. His- toric preservation commissions are often understaffed, and often cities simply lack the re- sources or political will to protect all of their historic properties in advance. Indeed, in Massachusetts, where over 100 demolition review laws have been adopted, demolition review laws are considered overwhelmingly successful. According to the Massa- chusetts Historical Society, demolition delay enabled the preservation of the Coolidge Cor- ner Theater and a Lustron house in Brookline. Negotiations under Eastham's delay provision enabled a historic house to be moved rather than demolished. Demolition review require- ments have also helped to stein the tide of teardowns in residential areas in Newton, and re- sulted in the rehabilitation of the circa -1710 Foster Emerson House in Reading. For more in- formation, see Christopher Skelly, "Preservation through ByLaws and Ordinances" (Massa- chusetts Historical Commission 2003). What Else do I Need to Know About Demolition Review Laws? By now you should be aware that demolition review laws can vary significantly. In de- veloping your own program, it is important to understand not only how such laws work gen- erally, but also to think about how such a law would work in your own community. Basic considerations include the types and number of buildings likely to require review, who should conduct that review, and how the law would relate to your city or town's historic preservation program. Communities should also seek to — • Establish an efficient process. Provide a quick and efficient means for ensuring that permits on non -significant buildings are not held up unnecessarily. The number of demolition permit applications filed in a given year can sometimes be staggering. The San Antonio Historic Preservation Office, for example, reports that it reviews approximately 900 applications per year. • Have resources in place which help applicants and/or permitting officials determine the age and significance of their buildings. In other words, take the guesswork out of the process. • Avoid making the safety net too small. It is important to ensure that potential land- marks are, indeed, subject to the law's protections. In communities with resources from the recent past, for example, it may be necessary to establish a threshold date that is commensurate with those resources. Communities relying on specific dates rather than the age of the building may find the need to amend the ordinance over time. If demolition review is limited to a category of buildings or list of structures, comprehensive survey work must be done prior to the law's enactment to ensure that all buildings meriting protection are included. • Keep the community informed. Effective notice provisions, such as the posting of a large sign, are critical. Members of the public cannot respond to a demolition threat unless they know about it. • Don't make the delay period too short. Without a meaningful delay period, leverage is lacking. It takes time to find a new buyer or a new site, or to even make an as- sessment as to whether an adaptive reuse project would work. 12 • Give the preservation commission the necessary tools to negotiate a solution. Pres- ervation solutions are more likely to be forthcoming with some level of financial as- sistance or tax savings. Enable the commission to draw on the expertise of other city officials when necessary and invite critical players to the table. Demolition review provides an invaluable opportunity to improve communication between a preserva- tion commission and its staff, and other governmental officials and the development community. • Enable the property to be designated, if designation is warranted. Negotiated preser- vation is no substitute for a strong preservation ordinance. • Enforce your ordinance. Ensure that the penalties effectively deter non-compliance and be prepared to enforce your ordinance if violations occur. Where Can I Find Examples of Demolition Delay Ordinances? Listed below are examples of demolition delay ordinances that have been adopted around the country. California Alameda City Code § 13-21-7. http://www.ci.alameda.ca.us/code/Chapter_13/21/7.html Davis Building Ordinance § 8.18.020 http://www. city.davis.ca.us/pb/pdfs/planning/forins/ Demolition_Permit_Requirements.pdf Santa Monica Municipal Code § 9.04.10.16.010 (as amended by Ordinance No. 2131 (July 27, 2004)). http://www.codemanage.com/santamonicai Colorado Boulder Revised Code § 10-13-23. http://www3.ci.bouldetco.us/cao/brc/lo-13.html#Demolition Connecticut Monroe Demolition Delay Ordinance http://www.cttrust.org/index.cgi/ 1049 Wilton Demolition Ordinance http://www.cttrust.org/index.cgi/ 1049 Delaware New Castle County Code § 6.3.020(B). http://www.muthcode.com/resources/online_codes.asp Florida Gainesville Code of Ordinances § 6-19. http://www.municode.com/resources/onlinesodes.asp 13 Illinois Chicago, Illinois. Municipal Code of Chicago § 13 -320 -230(a} -(c) and § 2-76-215 http: //egov. cityofchicago. org/webportal/C O C W ebPortal/COC_EDITORIAL/ D em olitionP ermits. txt Highland Park Ordinances, Ch. 17 §§ 170.040. http://www.cityhpil.com/govern/ordinances.html Lake Forest, Illinois, Building Scale and Environmental Ordinance § 9-87. http://www.cityoflakeforest.com/pdf/cd/bsord.pdf Louisiana Baton Rouge and East Baton Rouge Parish Demolition and Relocation Ordinance http://municode.com/resources/on-line_codes.asp Massachusetts Boston Zoning Code, Art. 85, §§ 1-8. http://www.cityofboston.gov/bra/pdf/ZoningCode/Article85 pill Cambridge Municipal Code Ch. 2.78, Art. II http://bpe.iserver.net/codes/cbridge/index.htm Newton Revised Ordinances, Ch. 22, Art. III, § 22-44. http://wwwci.newton.ma.us/legal/ordinance/chapter22.htm#artl Town of Weston Bylaws, Art. XXX. http://www.lmstrategies.com/whc/by-lawl.htm Maryland Montgomery County Code, Part II § 24A-10 http://www.amlega1.com/montgomery_countymd/ New Hampshire Concord Code of Ordinances, Art. 26-9 §§16-9-1 through 16-9-5. http://municode.com/resources/on-line_codes.asp Keene Code of Ordinances, Art. IV, §§ 18-331 through 18-335. http://municode. corn/resources/on-line codes. asp Texas San Antonio Unified Development Code. Art. 4, § 35-455(bf l2). http://www.sanantonio.gov/dsd/pdf/udc_article4_04.pdf 14 Georgetown University Law Center ,9 Scholarship @ GEORGETOWN LAW 2007 Demolition by Neglect: Repairing Buildings by Repairing Legislation Anna Martin Georgetown University Law Center This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/hpps_papers/17 This open -access article is brought to you by the Georgetown Lan Library. Posted with permission of the author. Follow this and additional works at: lattp://sclsolarahiplaw.georgetown.edu/hppspapers VlltlPart of the Housing Law Commons Land Use Planning Commons Legislation Commons Property Lan and Real Estate Commons and the State and Local Government Law commons Demolition by Neglect: Repairing Buildings by Repairing Legislation Anna Martin Historic Preservation Seminar Spring 2007 Demolition by Neglect: Repairing Buildings by Repairing Legislation I. INTRODUCTION One of the biggest problems today facing communities with historic preservation ordinances is delinquent owners who don't have the will or the finances to maintain their historic properties and landmarks. Historic preservation law plays an important role in building a sense of patriotism and community togetherness, fostering education and providing incentives for aesthetically pleasing architecture.' When residents can identify with a community, this creates a dialogue and sense of belonging. There are also environmental and psychological impacts of preserving old buildings, since human beings are positively affected by their surroundings when they feel a "sense of place."2 When buildings in a historic district fall prey to `demolition by neglect,' meaning that the owners allow their property to reach a state of deterioration, the entire sense of community can be lost. In light of the neglect that often takes place, many cities, in their historic preservation ordinances and regulations, have introduced provisions defining demolition by neglect and placing upon owners an affirmative duty to maintain their property. These are crucial for several reasons: to maintain the beauty and functionality of the buildings; to make owners responsible for their properties; and to maintain the cohesion of the neighborhood as a whole. It is also a way to prevent property owners who intentionally Carol Rose, Preservation and Community, 33 STAN. L. REv. 473, 479-80 (1981). Id. at 480. allow their building to deteriorate to circumvent historic preservation regulations.3 Often owners who want to build new developments in place of a historic building will allow it to become severely deteriorated and then request a demolition permit.4 They then might argue that the enormous cost of repair creates an economic hardship. Affirmative maintenance provisions must therefore be enacted with specific language about required repairs and remedies with adequate means to enforce them.5 Owners should not have the ability to let their property fall apart and then claim it has such little market value that spending more money than it is worth would constitute a taking or an economic hardship. Therefore, Preservation Commissions must look beyond a simple comparison of the cost of repairs versus the asking price of the property when considering these demolition requests.6 This should include considering the historic attributes of the building and its contribution to the district as a whole. This will make it more difficult for owners to attempt this type of neglect in hopes of demolition. II. DEMOLITION BY NEGLECT COMPARED Washington D.C., the focus of this paper, is a city with a demolition by neglect ordinance that has never been used to its capacity because the city lacks regulations with specific procedures, and of equal importance, it lacks the money to enact repairs on its own. This paper looks at the demolition by neglect provisions in New Orleans, Philadelphia, and New York City and focuses on what does and does not work, based on 3 Preservation Law Reporter, Educational Materials: Demolition by Neglect, National Trust for Ilistoric Preservation, 2005. 4 See, e.g., Jad Davenport, Nick of Time, Preservation Online (Aug. 29, 2003) available at http://www.nationaltrust.org/magazine/archives/archstory/082903.htm (explaining the near demolition by neglect of historic cottages in La Jolla, California because the owner wanted to build a multi -story hotel). s Preservation Law Reporter, Educational Materials: Demolition by Neglect, National Trust for Historic Preservation, 2005. 6Jd the language of the ordinance and the history and practice of its enforcement. By borrowing the positive and being alert to the negative aspect of each, this paper proposes steps for D.C. to take and regulations for it to enact in order to achieve greater success in forcing homeowners to maintain and repair their buildings. A. WASHINGTON, D.C. DC's statue introduces the responsibility of owners to maintain their property against decay and deterioration, with an inconclusive list of examples of defects that should be promptly corrected.7 It then sets out remedial provisions for those who violate this section. If the mayor determines that a historic landmark or building is threatened by neglect, upon obtaining an order from the Superior Court, the Mayor may require the owner to repair all conditions contributing to the neglect. In the alternative, the city can enter the property on its own and make the repairs necessary to correct the problem, charging all costs to the owner by levying a lien against the property.8 There is an additional provision for criminal penalties for violation of any provision of the act; and an alternative option for civil fines or penalties.9 It does not specify which is the preferred method or the process for instilling the fines or imprisonment. The regulations enacted in 2002 merely repeat the power of the Mayor's Agent to determine if buildings are threatened by neglect; and if so, to take appropriate measure to remedy the situation. 10 There are several limitations of this provision, namely the lack of day-to-day procedure in order to identify and repair deteriorating buildings. First, there are no ' D.C. CODE ANN. § 6-1109.02 (2001). 8 Id. § 6-1109.03. 91d. § 6-1110. 10 10 D.C. Mun, Regs. 104.5 4 specific procedures for notification to homeowners, time limits for corrections, hearings and follow-up assessments. The Mayor is given the power to require the owner to repair neglected conditions, but is not provided with any mechanism for fulfilling this obligation. What kind of notice must he give the owner and within how many days must the owner respond? When can further action be taken when an owner refuses to respond to a notice or submit a plan of repair? Who and when follows up on the status of the owner's repairs? These are all details that, if specified in regulations, would make it easier and more feasible for the city to enforce demolition by neglect provisions. Another major problem not adequately addressed is how to accommodate indigent owners who can not afford to make repairs on their house. There is no exception in the code for an owner who doesn't have the money to repair his property, regardless of whether or not his neglect was intentional. This must be addressed in some form because it is often in weak market neighborhoods that buildings are abandoned and demolished by neglect.' 1 Although this paper focuses on steps needed to force owners to act, one must always keep in mind that some owners do not have the financial means to take action, If there is no option for economic relief, these owners will be forced to sell their homes and move out if they can not afford to make repairs, something that goes against the community enhancement purpose of historic preservation. The city recently enacted a Historic Housing Grant Program which entitles homeowners of historic properties to receive a grant valued at 35% of applicable D.C. income taxes toward the expenses of rehabilitating their homes.12 There are some restrictions based on the owner's income and See http://www.nationaltrust.org/housing/housingstatement.htiul. '2 D.C. Historic Housing Grant Program, available at http://www.planning.de.gov/plann ing/frames.asp?doc=/pla nning/l ib/planning/DCHistoric Housing_ Grant Program. 12.06. pdfpdf. amount of repairs, but it is noteworthy that the city realizes something must be done to encourage the maintenance of properties in historic districts for those who can not afford to themselves. Although there is a provision in the Code for the Mayor to enter the property and maintain it himself, he generally does not have adequate funding to initiate the repairs. If and when a building becomes a nuisance, the Department of Regulatory and Consumer Affairs handles the demolition under its budget from the city. Yet forced demolition repairs are to come from the budget of the Historic Preservation Officer, which is not large enough to initiate substantial repairs. The lack of use of this provision is demonstrated by the limited case law on the subject. In fact, there is only one reference to demolition by neglect in an adjudication held by the Department of Consumer and Regulatory Affairs.13 The problems the city faces are also highlighted by the Comprehensive Plan of DC, which points out that many buildings are threatened by demolition by neglect. 14 One of the goals is to prevent "demolition of historic buildings by neglect or active intent through enforcement of effective regulations, imposition of substantial civil fines, and when necessary, criminal enforcement proceedings against those responsible." 15 Part of this process must and should look to other cities for inspiration and guidance. 13 See In the Matter of: 1230, 1232, 1234, and 1236 Pleasant Street., S.E. HPA No. #98-150; 98-151; 98-152; & 98-153 (mentioning yet subsequently dismissing idea that buildings had been demolished by neglect). " District of Columbia Comprehensive plan, Dec. 19, 2006, available at http://planning.dc.gov/p lanning/lib/planning/CitywideElements-122006.pdf. 15 Id. B. NEW ORLEANS, LOUISIANA The enabling legislation of the City of New Orleans has a demolition by neglect provision supplemented with detailed guidelines. 16 If the Commission determines that a building is being neglected, it must notify the owner, by certified mail or by attaching the notice to the building, that specific, recommended repairs must be commenced within 30 days.17 If the owner (applicant) does not begin work, he shall be notified to appear at the next public hearing of the Commission; whereby he can rebut any of the reasons for the issuance of the original notice.18 If demolition by neglect is determined, the Commission can bring charges against the owner for violation of the ordinance. It also has the authority to commence repairs at its own expense as a lien and privilege against the property.19 Under the enforcement powers, the Commission has the authority to fine, initiate a civil action for injunctive relief, or implement any other appropriate remedy against violators of the ordinance or any of the rules and procedures.20 Still further, the guidelines to the ordinance specifically list the types of deficiencies that constitute neglect, as well as the specific criteria for the determination of neglect.21 It outlines an eight -step process by which a building is officially cited for neglect; the final option being an action by the City in Civil District Court. The last section has a list of types of demolition by neglect and recommended corrective measures.22 Although the New Orleans ordinance is extensive and specific on its face, due to limit personnel and funding, the eight stages for official citation are not always followed or completed. 16 See New Orleans Guidelines attached as APPENDix A. 17 See City of New Orleans Ordinance Section XII (1976), available at http://www. cityofno. com/Portals/Portal99/pottal.aspx?potlal=99&tabid=2. 181d. 19Id. 20 Id. at Section XIII. 2' See Id. at Guidelines for Demolition by Neglect (see also attached APPENDix A). 22 See Id. The first two steps, inspection and citation of a neglected building, are done by the building inspector. His inspection generally focuses on whether or not the building is open to the weather or to vandals.23 Because there are so many blighted buildings in New Orleans, there simply isn't enough time to inspect and cite properties with more minor problems of neglect. The inspector will first issue a one -day, preliminary citation. This is done via certified mail, but if there is no registered mailing address, a notice will be put on the building itself. If there is no response from the owner and since the process has already begun, he will follow up with a formal, five-day citation, meaning that the property is cited five days in a row. If there is still no response, the Commission will notify the parties that an adjudication will be held. At the hearing, the parties must work with the administrative law judge to come up with a repair plan that should be put into action as soon as possible. If the owner does not appear at the hearing, then an automatic fine is levied against the property.24 Before Hurricane Katrina, about five to ten citations of demolition by neglect were issued on a weekly basis. This included new citations and follow-up citations. Now that the city has other issues occupying its time and energy, only about 2 or 3 citations are issued on average each week. According to the building inspector, there are only so many times the Commission can continue to cite a building, and only so many fines they can levy against it.25 According to the Commission, one of the city's main problems is the follow-up process after citations are made. After several inspections are done, photographs are taken, and a case synopsis written, the Commission must appear before 23 Telephone Interview with Eldon Hunter, Building Inspector of New Orleans Historic District Landmarks Commission (March 29, 2007). 24 See Id. 25 Telephone Interview with Eldon Hunter, Building Inspector of New Orleans Historic District Landmarks Commission (April 5, 2007). the hearing officer and the property owner to make its case. This time-consuming process is conducted by only one individual.26 Because adjudication hearings are usually only held once a month, and because the senior architectural historian is the only one working on them, she must limit herself to 15 cases per hearing (and this includes all violations not just demolition by neglect). If she submitted every case that needed to be heard, she would not have time to focus on any of her other job responsibilities.27 The success rate for demolition by neglect cases is not very high. Often the owners do not cooperate and the case is continually submitted for additional fines. This occurs because the Commission has not been able to implement an efficient and successful follow-up process, mostly due to a lack of manpower. In the event that a case is reset because the owner agrees to make the corrections, then the Commission will re- inspect and close the case if the work has begun. If the work hasn't been done, the case is usually reset for the next month while the Commission tries to have the owner fined. Unfortunately, there is currently no good tracking process for bringing the cases back in a timely manner. The Commission generally tries to bring back the case with new charges at least once a year, cases often fall through the cracks.28 Additionally, it has recently come to the attention of the Commission that the process of fining the owner as a lien against the property might not actually be happening, and therefore there are no properties being sold for taxes and liens with the Sheriff's Department. (The Commission is currently looking into the situation and has not yet determined the outcome.) Still 26 Email correspondence with Tracy St. Julien, Senior Architectural Historian, New Orleans Historic District Landmarks Commission (March 30, 2007). 2'1 Id. 28 Id. further, budgetary constraints prevent the city from making use of its power to initiate the work itself and charge this amount against the property.29 There have been some success stories, however. Most recently, a property located near the French Quarter was taken off the demolition by neglect list.30 In 2002, the original owners had allowed the property to deteriorate and so the Commission cited the building. However, the listed owner was deceased and his children had inherited the property. They would not spend any money to repair the property, but they also did not want to sell it because of its sentimental value. The Architectural Historian eventually took the family to adjudication in 2003 where, when faced with serious fines, they decided to sell the building to a young couple. The new owners spent years rehabilitating the property, both before and after Hurricane Katrina. As of March 2007, the building was no longer listed as demolition by neglect.31 As long as the Commission can see the owners making an effort to work on and repair the property, like these new owners, then they will not issue citations. Here, when old and new owners are willing to cooperate and expend resources on a building, demolition by neglect can be avoided. New Orleans currently faces new challenges in light of the extensive damage incurred by Hurricane Katrina. Many property owners that were flooded are waiting for government money to repair their property, so in these instances the citation process has been suspended for them.32 As one New Orleanian noted, in light of the current housing crisis, "[I]t is appalling that ... the Mayor and the City are incapable of stirring 29 Email conversations with Camille Strachan, attorney and former trustee of the National Trust for Historic Preservation and former member of the Preservation Resource Center of New Orleans (Mar. 20 and 21, 2007). 3o Email Conversation with Tracy St. Julien, Senior Architectural Historian, New Orleans Historic District Landmarks Commission (April 17, 2007). "See Id. "See Phone conversation with Eldon Hunter, supra note 23. 10 themselves to serve immediate notice on the owners of these properties that have received prior citations that if they don't begin repairing them within 30 days, the property will be seized and auctioned for repair and immediate occupancy. An enormous proportion of the entire housing shortage of the city could be resolved simply by finally addressing a problem that has been neglected by one administration after another stretching back for decades."33 One noteworthy architect suggests a "parking -ticket -style `quality of life' citation with such violations as illegal demolition by neglect in order to enforce existing code violations."34 This of course would involve extensive city-wide coordination among the police department, the landmark commission and other agencies, a task that seems unlikely in the city's current state of affairs. New Orleans is a city with an extensive ordinance and regulation with enforcement mechanisms in place. Its notice, inspection and citation process, with its strict time limits, are helpful details that Washington D.C. could learn from. Of course, as demonstrated by the current plethora of blighted houses, there is a large amount of responsibility and work being placed on a few people with limited time and resources. Additionally, enforcement, when utilized, is not always complied with, seemingly because of faulty follow-up mechanisms. If owners know that fines will continued to be levied, fines that they won't be responsible for, then there is not much incentive to make the repairs; especially if they have no intention of selling the home. However, one must keep in mind that Hurricane Katrina had a devastating effect on the already lacking resources and manpower of the city. Therefore, in looking to New Orleans' Ordinance and Guidelines as inspiration for detailed processes, one must keep in mind that current 3e Louisiana Cultural Vistas magazine, editorial by Michael Sartisky, Housing Divided: A Study in Failure (Fall 2006). 34 MacCash, Doug, The Visionaries, 2006 WLNR 21305886. New Orleans Times Picayune, Dec. 10, 2006. II lack of enforcement, although a problem before, has become more prevalent since the storm. C. PHILADELPHIA, PENNSYLVANIA Philadelphia, Pennsylvania is another city with a rich architectural history and beautiful buildings that are protected from neglect by a preservation ordinance and regulations promulgated thereupon. The Department of Licenses and Inspections is given the authority to examine the buildings and report on their physical condition.35 Owners have an obligation to keep the exterior and interior of buildings in "good repair" in order to prevent decay and deterioration. The Department can issue orders directing compliance with the Act, and failure to do so will result in a fine of $300 per day.36 Pursuant to its authority under the Act, the Philadelphia Historical Commission promulgated Rules and Regulations to better fulfill its mission. Under these, the Commission can request that the department examine, and if necessary, issue an order to repair a neglected building.37 Otherwise, the regulations merely reiterate the Commission and Department's authority to work together to enforce the obligations and responsibilities of homeowners pursuant to the Code. In practice, the major "teeth" of the ordinance is found with the Department of Licensing and Inspection. Unlike in other cities, Philadelphia's Department is also responsible for the issuance of violations and subsequent follow-up. If the Commission learns that a building has fallen into a state of disrepair, it will first go out and inspect the 3s PHILADELPHIA CODE § 14 -2007(8)(a) -(c) (2004). 36 Id. at § 14 -2007(9)(a) -(d). "Philadelphia Rules and Regulations, Section 11.2 (Aug. 1990). 12 building itself for corrosion, rotting or other severe conditions.38 The Landmarks Commission will then write a memo to the Department requesting that it issue a violation. The process then follows the Department's Regulations. Generally the owner has 30 days to get a permit to correct the building. If he fails to do so, he will receive a court summons.39 The judicial process, 90% of the time, is resolved before the judge enters the courtroom. Usually, in the presence of a hearing officer working under the judge and a representative from the Department, the owner will agree to make changes by signing a settlement paper. Although the judge is generally not present at this point, this is a very formal process with all of the usual court documents.40 The settlement will often name the repairs and demand that the owner return in 90 days to report on his progress. If the building has not been fixed, the conditional fine previously levied becomes an actual fine of $300 per day. The owner must also pay all of the court fees. Many times owners will be taken to court several times before work is actually completed.41 The Philadelphia Commission's protocol is to seek a violation as its first step of action, rather than first attempting to contact the parties and work on some sort of negotiation or agreement. Another tool the city has at its disposal is to, by working with the Contractual Services Department, contract with a company to repair a severely neglected building and charge the cost as a lien against the property. This is not used frequently because the city's annual budget is limited. However, the Assistant Historic Preservation Officer remembers two successful cases in the past ten years, one of an old church and one of an old residence, where deteriorating roofs were repaired using this 38 Telephone Conversation with Randal Baron, Assistant Historic Preservation Officer, City of Philadelphia Historical Commission (Apr. 10, 2007), 39 See Id. 4° See Id. 4' See Id. 13 method. In general, however, this is a costly process and raises potential liability issues if the city's repair is faulty.42 In general, not many demolition by neglect violations are issued for two reasons. First, often a building will become a mere neglected shell when the heirs to it are fighting over how to maintain it. Usually they can't agree on who will pay to fix it up. Frequently the market will heat up and then it becomes financially feasible for the owners to make the extensive repairs. In these instances, the Commission allows the market to do the enforcement. For example, in 2006, a building had fallen into neglect when the owner, who ran a doctor's office there, passed away. Because the buildings were beautiful and historic, the community development corporation raised $4 million to build the "Winston Commons," a retail and condominium space. The building retained many of its historic attributes in the process.43 Other times, there is a risk that issuing a violation will lead to a full inspection which will reveal that the building is too dangerous and has to be torn down.44 In other words, the Commission doesn't want to push too hard because it then risks the complete loss of the building. However, this would seem to be a minimal consideration since the alternative is to have the building collapse from neglect in situations where the owner is completely negligent. As can be seen, there are many different considerations and factors for the Commission to consider when using and implement its preservation ordinance. However, after downsizing its staff, the Department of Licenses and Inspections has not had as much man power to take many cases to adjudication. 42 See Id. 43 Philadelphia Action News, 2006 WLNR 19083771 (Nov. 1, 2006). 44 See Conversation with Randal Baron, supra note 38. 14 Another method for identification of endangered properties involves citizen's involvement in listing the building under the Preservation Alliance's Endangered List. The Preservation Alliance is a nonprofit membership organization that "promotes the appreciation, protection, and revitalization of the Philadelphia region's historic buildings, communities, and landscapes."45 It seeks suggestions from members, residents and professionals from the area of buildings that are being threatened by neglect and demolition.46 This, of course, is a limited resource for the City because it involves very pro -active citizens, and naming a building on the list does not mean that it will be repaired, it merely means the organization will spend greater efforts to nurse it back to health. Some frustrated homeowners blame the continued neglect in the city on the fact that civic associations, which review plans with developers, are private, nonprofit corporations and therefore have no enforcement authority over delinquent landowners. The only thing they can do is discuss the blight with the owner and try to shame them into repairing and improving their properties.47 One suggestion would be to increase the Department of Licenses and Inspections budget so that it has more resources with which to inspect buildings and issue code violation citations.48 The lack of enforcement in Philadelphia can be demonstrated by a case involving repair of a building based on economic hardship. In 1999, a joint venture that owned historic townhouses in Philadelphia applied to the Department of Licenses and Inspections for approval to reconstruct marble cornices of one of its houses in 4s See Preservation Alliance, available at http://www.preseivationalliance.com/about.php. 46 See Id. 47 See http://www.phillyblog.com/philly/showthread.php?t=30974 4s See Id. 15 fiberglass.49 After an Appeal, the court held that the owners could not do this because they did not fall under the economic hardship exception of the statute. The case was decided based on the statute's Standards for Preservation. The plaintiff failed to provide enough evidence to warrant an economic hardship excuse for the reconstruction of historic cornices in a material other than one compatible with the original marble. This case is significant for demolition by neglect, however, because the original deterioration of the cornices was due to demolition by neglect.50 Even though the owners brought the neglect onto themselves, the Commission had originally approved the Company's request to re -build the cornices with fiberglass because it was a cheaper material and had been used as a replacement in other buildings.51 Luckily the Society Hill Civic Association intervened because any type of repair to a building based on owner neglect should not allow these same owners to circumvent using better quality materials because they claim they are too expensive. D. NEW Yoluc, NEW YORK New York City has a preservation ordinance whose demolition by neglect provisions had one of the most successful enforcement histories. Not only is the act effectively administered by the Landmarks Preservation Committee, but also, and fortunately, the high market value for property in New York City makes the abandonment and negligence of buildings rare and ill-suited for any property owner. The city's administrative code requires owners to keep the interior and exterior of their buildings in 49 See Society Hill Civic Association v. Philadelphia Board of License & Inspection Review, 905 A.2d 579, 582 (Commonwealth Court of Pa. 2006). See Id. Id. at 583. 16 "good repair" to prevent deterioration or decay.52 Any violation of this requirement can lead to punishment by a fine (not more than $1000 but not less than $500) or by imprisonment (not more than thirty days). Each day that the violation exists constitutes a separate offense.53 Violators may also be subject to a civil penalty which may be recovered in a civil action in any competent court or by an administrative hearing. The defendant may be liable for either: the fair market value of the property (with or without improvement); double the cost of replicating the features that were demolished; or an amount not more than $5000.54 Although there are no rules that define or outline the specific process for inspection, notification, citations and follow-up, the New York Landmarks Commission has developed a successful system for dealing with negligent owners. The goal of the Commission is to restore the buildings to a repaired state, rather than penalize the owners for negligent behavior. Therefore, the Commission tries its hardest to work with the owners before even mentioning the threat of a lawsuit in court.55 During the first 35 years of the Commission existence, only one demolition by neglect case was brought because lawsuits are such a time-consuming process, and so its time was better spent working with owners to repair. In the past 5 years, the Commission has become much more active and is, in fact, filing 3 lawsuits in the Supreme Court of New York this year.56 This can 52 NEw YORK, N.Y., CODE § 25-311(a) (2001). 53 See § 25-317(b) & (d). 54 See § 25-318(a) & (b) 55 Telephone Conversation with John Weiss, New York Landmarks Preservation Commission Deputy Counsel (Apr. 4, 2007). 56 See Id. 17 be attributed to an increase in staff members and the accomplishment of other Commission goals, thereby freeing up the staff to focus on demolition by neglect.57 Once a building is identified as threatened, either by a city agency or a concerned citizen, the deputy counsel of the Commission, an in-house lawyer, will visit and photograph it for evidence of its neglect. There is no initial citation process or issuance of violations for major neglect cases, versus lower -level neglect which is determined under the City Rules and dealt with via warning letters. Good repair, as defined in the statute, has come to mean a building that is structurally sound, watertight, and whose significant architectural features are secure and not at risk. This is determined on a case -by -case basis.58 If the building is in fact a case of demolition by neglect, the Commission will generally spend up to one year working with the owner to make improvements. The owner is contacted, usually via telephone, about his legal obligation to make repairs, and communications continue between the owner and commission via telephone, personal meetings and letters.59 As noted, the Commission is extremely flexible in this procedure because its ultimate goal is to have the building repaired without filing a lawsuit. Sometimes, however, the damage is so obvious and extreme, and the owner so unresponsive, that it will take the case to court within eight or nine weeks.60 When the damage is extreme, sometimes another city agency will be called in to make emergency repairs. The cost for this, supplied by the Agency making the repairs, will be charged as a lien against the property and added to the list of violations when the sr Email from John Weiss, New York Landmarks Preservation Commission Deputy Counsel, (Apr. 20, 2007). 58 Email from John Weiss, New York Landmarks Preservation Commission Deputy Counsel, (Apr. 6, 2007). sv See Conversation with John Weiss, supra note 55. G° See Id. Mo claim is taken to court. Although the Landmarks Commission does 90% of the work involved in preparing a court action, such as compiling affidavits and complaints, the City's Legal Department actually takes the case to court. There is sometimes an issue of contention between the two groups over the extent of the penalties that should be sought. The Law Department often thinks harsh penalties are effective, but the Commission does not see these as an effective deterrent in most cases.61 When buildings are investigated, the Commission will not close the case until the repairs are done. The average time -frame owners are given to make repairs after promising to do so is six months. If work has been done, the case will be dismissed. A specific example of the successful process that New York follows can be found in a 2005 draft complaint on file with the Commission. The complaint first states the exact disrepair, such as damaged front windows, missing front steps and a rotted front porch.62 It then highlights the attempts the Commission made to notify and meet with the owners to discuss and negotiate repairs from 1997 until 2005. Because the owners were so negligent in their response, and attempted to drag the case on for years, the Commission resorted to a lawsuit. There were phone calls, letters and meetings which gave the owner plenty of opportunity to legally comply with the Landmarks Act, After an inspection of the house in 2005 revealed that it was not sealed or watertight, the Deputy Counsel sent the owner a letter naming three companies that seal historic buildings and provide ventilation to prevent the buildup of mold.63 The Commission went out of its way to try to come up with a solution. Because the owner still did not apply for repairs, 61 Id. 62 Draft Complaint, City of New Pork v. Alfred Palmer at Paragraph 14 (Supreme Court of the State of NY, County of Kings 2005), on file with John Weiss, New York Landmarks Preservation Commission Deputy Counsel. 63 Id. at Paragraphs 15-33. 19 the city sued the owners under Section 25-317.2.d of the Administrative Code, which applies to historic buildings and landmarks, enjoining them to restore the premises to a lawful condition. The plaintiffs did not specifically request fines, but included in its request "such other and further relief as the Court may deem just, proper and equitable."64 The recent enforcement of the New York Administrative Code relating to maintenance of historic buildings has continued to be extremely successful. For example, after a neglected building in Brooklyn was partially destroyed by a fire, the deputy counsel met with the owner to discuss the situation. Because the owner was an elderly man and had accidentally let the building fall into disrepair due to his deteriorating physical state, the Commission did not think levying a $5000 fine would be appropriate. Instead, after approaching and discussing the situation with the man, he sold the building and it has now been restored.6s There are, of course, those owners who intentionally want to neglect their buildings in the hopes of getting it demolished. Currently, the Commission is about to file suit against the owner of a large building in Manhattan. In addition to requiring the building to be repaired, the Commission will request a $5000 per day penalty because of the intentional nature of the neglect. The owner is a large corporation that has the resources to fix the building up, but would rather have it torn down.66 This case could end up costing the owners a lot of money, not only in penalties, but also in litigation costs 6" Id at Paragraph 49. 6s Telephone Conversation with John Weiss, New York Landmarks Preservation Commission Deputy Counsel (Apr, 4, 2007). G6 See Id. 20 because cases can take years to be decided. The Deputy Counsel is optimistic that the Commission has the resources to successfully fight this negligent owner.67 One of the few published opinions about demolition by neglect occurred in New York City. The Skidmore house, a Greek revival row house, had fallen into disrepair because the owners wanted it torn down. The New York Landmarks Preservation Commission sued the owners directing them to repair and restore the exterior building.68 The court held that there was enough evidence to show that the building had fallen into a state of disrepair. The plaintiffs testified about the efforts made to compel the defendants to repair the building which included the issuance of numerous permits.69 The court looked at the extent to which the defendants may be compelled to undertake the repair to an exterior and interior of a building. It held that the Report submitted by the Commission spelling out the exterior repairs was rational and reasonable, and that the Commission should also be given access to the interior in order to survey whether or not further repairs are needed.70 This was the first time a court had enforced the "keep in good repair" requirement of the city's landmark preservation law.71 It is an excellent example of demolition by neglect being enforced. However, the Commission had to go through a lot to get the owners to act. In fact, according to the Chair, the Commission tried for years to get the owners to do the right thing.72 Inspections reporting the decay began in 1995, the court 6] See Id. b8 See City of New York v. 10-12 Cooper Square, 7 Misc.3d 253 (2004 N.Y. Slip Op. 24548). 697d. at 256. '° Id at 258-59. " See Press Release of New York City Law Department (Dec. 22, 2004), available at http://home2.nyc.gov/html/law/downloads/pdUpr122204.pdf. 72 Id, 21 action was commenced in 2002 and decided in 2004.73 This was an arduous process which is definitely a disincentive for Landmark Commissions in any city to bring an action in Court. One positive thing for New York, however, is that "the decision will not only save the Skidmore House but will assist the City in its efforts to maintain other landmark properties."74 Ideally this type of court enforcement will send a signal to other property owners that demolition by neglect is not a crime to be taken lightly. E. EMINENT DOMAIN Demolition by neglect ordinances are essentially an outgrowth of the city's eminent domain power. Since the infamous Penn Central case,75 it has been widely accepted that governments have the power to prevent owners from destroying historic properties because these properties benefit the public good. Eminent domain, defined as "the inherent power of a governmental entity to take privately owned property, esp. land, and convert it to public use, subject to reasonable compensation for the taking"76 should be used in exigent circumstances only,77 and just compensation is required. Hence, it is undisputed that the city has the power to keep the city aesthetically pleasing, economically viable and physically vibrant. An interesting case in Tacoma, Washington leads one to wonder whether eminent domain could and should be used to prevent demolition by neglect. 7' See Cooper Square at 256-59. 74 See Press Release (quoting Senior Assistant Corporation Counsel Paula Van Meter of the Law Department's Administrative Law Division). 76 See Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978) (holding that a taking has not occurred when the owners can still retain some use and value of the property). 76 Black's Law Dictionary (8th ed. 2004). 77 See Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922). 22 This case relates to a city's ability to make owners take charge, or else take charge themselves. In Tacoma, the city council used its power of eminent domain to preserve a historic building that had fallen into disrepair.78 The building at issue was the Old Elks Temple which, although not listed on any historic register, was considered a pivotal structure in the Old City Hall Historic District.79 Upon inspection of the building, it was found to be derelict. The city wrote the owners letters informing them of their requirement to make repairs, and when these when unanswered, the city issued civil citations. According to Tacoma's Code, the city can issue a Certificate of Complaint if the owner does not respond to the notice that it has a blighted building, and penalties have accumulated to an amount over $1000. A copy of the Complaint is sent to the owner notifying him that the city now has two options with how to deal with the blighted building: it can "Procure the Property through Eminent Domain" or "Start Dangerous Building Proceedings."80 The owners then sought a demolition permit because they foresaw an enormous economic burden in repairing the building. The Landmarks Commission denied this permit and the City Council subsequently passed an Ordinance authorizing the City to acquire the property, under both the blighted property statute and ordinance as necessary for the public use in alleviating the blighted properties of Tacoma.81 The City planned to fix the roof and the exterior in order to prevent further deterioration, and then put the building into the hands of a successful bidder based on proposals to restore the building. The city cited its Minimum Building and Structures Code which has the purpose of 's See City of Takoma v. Zimmerman, 119 Wash.App. 738 (2004). 79 Id. at 740. 80 Id. at 740-41 (citing Tacoma Municpal Code § 2.01.060.E.8). '1 See Id. at 742. 23 rehabilitating buildings until an economically workable remedy is found; namely one that appeals to a prospective developer.82 The intent of the city's court order determining that the acquisition of the property was for a public use is to "maintain the fabric of the community."83 Not only do blighted buildings cause a health and safety threat to the community, but they also threaten the existence of historically and culturally valuable buildings. These buildings "maintain continuity of the community" by attracting tourists and locals to the area and hence enhancing the overall fluidity of the city. S4 Therefore, prevention of owner neglect is a public good for which eminent domain can be used. The City's decision whether to acquire the property or try to seek demolition is based on an assessment of the blighted property's economic value, which is similar to an economic hardship exception under historic preservation ordinances. Here the owners presented evidence that the building had little economic value and should be demolished. However, according to the court, accepting their argument "creates a self-fulfilling phenomenon identified ... as `demolition by neglect'."85 The city highlighted the historic and cultural value of the building, as well as its value in relationship to the district as a whole, when it decided to give the owners this somewhat extreme ultimatum. In other words, because the building has an effect on the neighborhood as a whole, the court looked at the entire district's view of the value rather than just the value to the individual owner. "A landowner who allows his property to fall into disrepair endangering the 82 See Id. 83 See Id. at 743. 84 See Id. at 743-44. Hs See Id. at 745-46 (quoting Video Transcript, Tacoma City Council, Ordinance 26863, First Reading October 9, 2001 and Final Reading October 16, 2001). 24 community thus transfers decision -making authority over the property to the elected representatives of that community."86 This case has important lessons not only for Washington, D.C., but also for any city concerned about demolition by neglect. A problem that many cities face is the lack of owner response and cooperation, and sometimes even the inability to locate a property owner. Having the power to take control of the building in these instances could help save many buildings from ultimate demolition. If the District of Columbia is serious about preventing neglect, if should consider amending its statute to give the City this additional power. Obviously, this kind of action will involve a high level of funding, man power and determination. However, it will ensure that each and every historic building or landmark is taken care of. Because a negligent owner can also be disheartening for the surrounding owners, this power will be an added incentive to motivate neighbors to push for the auctioning of a building to a more responsible individual. This will inevitably lead to greater stability and maintenance of buildings and neighborhoods. F. FEDERAL HISTORIC PRESERVATION Although this paper focuses on local ordinances and regulations enacted in several cities, it is always relevant to keep federal law in mind, since federal law was the original source of historic preservation protection. Additionally, because the maintenance of landmarks and contributing buildings in historic districts is important all over the country, it is useful to mention one of the few published cases involving an owner's responsibilities to maintain a building in light of the federal statute. Washington D.C. 86Id. at 747-48. 25 needs to focus on implementing specific rules and regulations, but it must always keep the general purpose of historic preservation in mind. In this case, the National Trust sued the Army to compel it to expend a substantial amount of money on long-term preservation activities to preserve historic districts under its control.87 The court held that the Army's neglect and failure to spend resources on the preservation of the historic district violated the National Historic Preservation Act. However, the court lacked authority to compel the Army to spend more money on preservation because the Act is merely procedural. "Historic preservation by its very nature demands action to stem the otherwise inevitable wear and tear of time itself ... Historical knowledge ... is the life's blood of a people."88 This case recognizes the importance of maintaining historic buildings; and since the federal statute could not require a government agency to take substantive actions to repair, it is even more important that city ordinances and regulations provide for these types of measures. After looking at several specific local ordinances, it is important to keep in mind the general, national goals of historic preservation. III. STEPS FOR WASHINGTON D.C.; THE FUTURE OF DEMOLITION BY NEGLECT Taking various aspects of enforcement successes and failures found in New Orleans, Philadelphia and New York, D.C. must promulgate new and extensive regulations. The success and failure of enforcement does not always directly correlate with the specificity of a regulation or ordinance, yet good law combined with serious efforts by city officials can be an effective and successful combination. If there are no 87 See National Trust for Historic Preservation v. Black, 938 F.Supp. 908, 909 (D. D.C. 1996). 88 Id at 926. 26 specific deadlines and procedures, it is easy for a Commission staff to let things slide, particularly when they are short-staffed. A back -log of citations, adjudications and their follow-ups is hard to overcome. Detailed rules can provide a positive starting point for enforcement, but is definitely merely a starting point. This disconnect between rules and actual implementation can be seen in New Orleans. Although the city has a detailed ordinance with guidelines, there is little to no enforcement (even before the additional Katrina problems burdened the city). One reason is clearly the backlog of cases in an understaffed agency. If regulations are taken seriously from day 1, it will be easier for commissions to maintain effective enforcement. On the other hand, consider New York, which does not have detailed regulations, but nonetheless has established a system that gives serious bite to the ordinance through attentive staff members and organized inspections, citations and follow-ups. Because relying on a staff to come up with its own efficient system that will last with changing employees is risky, it is recommended that D.C. promulgate new extensive guidelines giving the Commission additional enforcement powers. Keeping in mind that there are many positive aspects of New York's system, it is advised that the D.C. Commission train each of its employees with a course of recommended actions to take in fulfillment of its obligations. Some of the most important changes and additions that should be implemented are as follows: specific inspection processes by neighborhood and date; immediate citation listing the minimum repairs and scheduling an initial meeting with a Commission staff member; follow-up visit within 30 days; if still no compliance, second round citation with fines and visit; after second follow-up, hearing notice; a formal and specific adjudication process with all relevant 27 documentation present and an opportunity for the owner to be heard; final follow-up process; last resort: court litigation with threat of serious fines and litigation costs.89 There are always other factors to consider when looking at demolition by neglect, such as the character of the city itself. Some cities have a `tradition' of neglect whereby old, abandoned buildings are considered to be part of its charm. This, however, is no excuse for allowing historic buildings to deteriorate, particularly in light of the negative impact it can have on surrounding buildings and hence neighborhoods. Other cities are fortunate to have a thriving market that economically does not allow for buildings in high income neighborhoods to become neglected. Washington, D.C. seems to be a combination of both of these. To successfully enforce and promote the importance of preventing demolition by neglect, it is necessary to enact new regulations to be taken seriously in all neighborhoods at all times. The number of historic buildings, although always growing with time, is nevertheless limited; and once a building has been demolished through neglect, there is nothing to be done to get it back. With new regulations and publicity to local historic groups who can notify the Commission to act, preventing demolition by neglect will become an even more important tool of preservation. as See attached APPENDIX B: Proposed Regulations. VE APPENDIX A New Orleans Demolition by Neglect Guidelines "Demolition by Neglect" is one of the most serious problems affecting the fabric of our historic neighborhoods. The term "Demolition by Neglect" refers to the gradual deterioration of a building when routine or major maintenance is not performed. The ordinances which created both Historic District Landmarks Commissions entrust the Commissions with insuring that structures located within the local historic districts and landmarks designated by the Commissions are not allowed to be demolished through the neglect of the owners. A Demolition by Neglect citation issued by the Commission is against the owner of the property for failure to properly maintain the property as per the specific criteria stated in the following paragraphs. The types of deficiencies identified as "Demolition by Neglect" include any structural deficiency or a deficiency in a building part which left unrepaired could lead to deterioration of the building's structural frame. A building is also identified as "Demolition by Neglect" if it is open to entry by vandals or vagrants. Specific criteria for the determination of Demolition by Neglect are as follows: The deterioration of a building to the extent that it creates or permits a hazardous or unsafe condition as determined by the Department of Safety and Permits. The deterioration of a building(s) characterized by one or more of the following: a. Those buildings which have parts thereof which are so attached that they may fall and injure members of the public or property; b. Deteriorated or inadequate foundation; c. Defective or deteriorated floor supports or floor supports insufficient to carry imposed loads with safety; d. Members of walls, or other vertical supports that split, lean, list, or buckle due to defective material or deterioration; e. Members of walls or other vertical supports that are insufficient to carry imposed loads with safety; f. Members of ceiling, roofs, ceiling and roof supports, or other horizontal members which sag, split, or buckle due to defective material or deterioration; g. Members of ceiling, roofs, ceiling and roof supports, or other horizontal members that are insufficient to carry imposed loads with safety; h. Fireplaces or chimneys which list, bulge, or settle due to defective material or deterioration; i. Any fault, defect, or condition in the building which renders the same structurally unsafe or not properly watertight. Action by the City, the State Fire Marshall, or the Department of Safety and Permits relative to the safety or physical condition of any building. The process by which a building is officially cited for Demolition by Neglect involves several stages. They are as follows: 29 1. Identification by the staff that a building's condition falls under the Commission's criteria of Demolition by Neglect. This initial identification may be made by a staff inspection of the neighborhood or by referral from someone in the area. 2. The staff presents the building to the Commission at a public hearing with a report detailing the defects which, in the staffs opinion, qualifies the structure for Demolition by Neglect. To proceed with the citation process the Commission must vote by a majority to make a preliminary finding of Demolition by Neglect. 3. If a preliminary determination is made by the Commission, the owner is notified by certified mail of the defects in the building. The owner is given thirty (30) days in which to respond to the preliminary determination by obtaining a Certificate of Appropriateness for the corrective work. If a Certificate of Appropriateness is issued at this point, it will detail the specific work which is necessary to correct the Demolition by Neglect conditions, and a time limit for work to begin and be completed is set. 4. If the owner of the property receives the letter regarding the preliminary determination, but fails to respond, the matter is referred to the Commission for a citation hearing. If the owner fails to receive the letter regarding the preliminary determination after two attempts, the building is posted with a notice of the violation in accordance with the provisions of the Ordinance, and a public hearing on the citation is scheduled. 5. At the public hearing the Commission may issue a citation to the owner of the property for failure to correct the Demolition by Neglect conditions. The citation is made by a vote of the majority of the Commission on a motion recognizing the condition of the building and the owner's failure to correct the defects. The owner is invited to the public hearing to address the Commission's concerns and to show cause why a citation should not be issued. The Commission may also defer the matter to give the owner more time either to correct the deficiencies, make a proposal for repairs, or perhaps sell the property - 6. If the owner is cited for the condition of Demolition by Neglect of the property, he is given ten (10) days to respond with a proposal to correct the defects. 7. If a Certificate of Appropriateness is issued at this point, it is often worded to place specific constraints on the owner for initiating and completing the work. 8. If the owner fails to respond after the ten-day grace period following the citation, he is given an additional five (5) days to respond. After that additional period passes with no response, the matter is turned over to the City Attorney's office for action in Civil District Court. Types of Demolition by Neglect and Recommended Corrective Measures. Structural Failure. Defects involving the structural failure of a building or a portion of a building are the most difficult to correct. For certain types of building failure, it is necessary to seek the 30 advice of a structural engineer to determine the measures necessary to correct them. If the condition of the building has deteriorated to the point the building or a portion of the building can not be saved, it is sometimes reasonable to propose demolition as a means of "correcting" the structural failure. See "Demolition Application." Missing Exterior Finish Material. Exterior finish material such as weatherboards, trim, fascia, soffits and window casings serve the important function of protecting the basic structure of the building as well as protecting the interior finishes. These building elements also often carry important information about the style and age of the building. When repairing loose or missing exterior finish material, care must be taken not to remove any important historic fabric. Where replacement material is necessary, it must match the original in material and detail. All replacement wood should be primed and painted after installation to insure that the work will not have to be repeated. If defects include failure of masonry, construction repairs must be made using masonry units (bricks) and mortar which match the existing in material, composition, size and density. Broken or Missing Glazing, and Open or Missing Windows or Doors. Missing windows, doors or glazing can allow the entry of water into the building. If left unchecked, water can lead to the deterioration of the structural fabric of the building and damage to both the interior and exterior finishes. An open building is also an invitation to vandals and vagrants to enter and possibly damage the building. The method used to correct this type of defect varies according to the seriousness of the problem. If the matter involves simply the need to replace glazing in existing frames, the work can be easily accomplished. If a building is missing doors or windows, or is abandoned, the Commission recommends that the building be boarded up. r In either case, a minimum of 3/8" plywood should be cut to fit tightly inside the frame of the window or door on the exterior of the building. In the first method of attachment, 2" drywall screws spaced no more than 12" on center are used to attach the plywood to the frame of the opening. In the second method of attachment, 3/8" carriage head bolts with 2" washers are used to attach the plywood to 2 x 4 wood bars mounted on the interior of the building. When the bolts are tightened, the wall is "sandwiched" between the plywood and the 2 x 4 bars, holding the entire assembly in place. In both examples, the plywood must be placed on the outside of the window opening. The Commission recommends that the plywood be primed and painted before installation to improve the general appearance of the building and to make it durable against the weather. 31 Roof, Gutters, Downspouts, and Flashing. The roof surface and associated construction are the most important areas in protecting a building from water damage. If a Demolition by Neglect notice results from a fault in the roof or associated construction, the Commission recommends that repairs be made to match the original in material and detail. Sometimes if the damage to a roof surface is extensive or if other structural repairs are required, it is necessary to replace the entire roof surface. The preceding suggestions for correcting Demolition by Neglect conditions are general. Specific situations may require different solutions. The staff of the Commission is willing to consider any suggestion so long as it adequately addresses the building fault which created the condition of Demolition by Neglect. 32 APPENDIX B The following is an outline of proposed regulations for Washington D.C. These ideas come from the ordinances and regulations of New Orleans, Philadelphia and New York, as well as from conversations with members of those historic preservation Commissions based on what occurs in practice. The most controversial and difficult to enforce provisions will probably be part 5 and part 7 which are the eminent domain and economic hardship provisions. These will be difficult to enact and enforce mainly due to the funding that will be required to make them effective. Proposed Regulations: The city of Washington, D.C., through its Landmarks Commission, shall have the power to: Once a month, the Building Inspector of the Landmark's Commission shall survey the historic districts and Landmarks looking for any signs of demolition by neglect. It can also survey buildings that have been identified by concerned citizens, neighbors, or professionals. Once a determination that a building is being demolished by neglect is made, as defined in the Maintenance of Buildings section of the Code, the Commission shall act as follows: A "case file" will be opened with name of the property owner, the building address, and the specific neglect. 1. The Commission will contact the property owner via telephone to notify the owner of the neglected property and discuss possible solutions. a. If a solution is negotiated, the Commission shall document the discussion and send a copy of the discussion to the owner specifying the time frame for the repairs to be initiated. i. In the document, the property owner will be notified that he must begin work within 30 days, and the completion date. 1. Completion date will be determined on a case -by -case basis ii. The property owner is also required to submit in writing his proposed changes within 7 days. b. If a solution is not negotiated, the Commission will give the property owner 30 days to decide what course of action he will take concerning the property and schedule a meeting with the owner. 33 c. After these 30 days, the Commission shall meet with the owner to once again discuss a solution. If a solution is reached, the same process of documenting the discussion and submitting a repair schedule shall be followed. d. In the event that a solution can still not be reached with the owner, the Commission shall issue a citation (see below). 2. If the Commission can not contact the owner because he is unreachable, he shall send a letter notifying the owner of the neglect and giving him 30 days to contact the Commission to discuss repairs. a. If, after 30 days, there is still no response, the Commission shall issue a citation, both via registered mail and placed on the property. 3. The Citation shall indicate: a. A fine of $500 is being levied on the property if no response is heard within 30 days. b. After 30 days, an additional citation will be issued for an additional $500. 4. After 2 citations and 60 days, if there is still no response, the Commission is authorize to begin proceedings of a Final Citation, The Final Citation shall indicate that the property is being taken by the city's power of eminent domain, and a hearing will be held to determine the validity of this action. 5. The Commission shall submit to an administrative law judge a statement indicating the state of the property, the actions taken, and the City's future plans for the building: either repair and auction or demolition. a. The administrative law judge, at the hearing, must determine if the City's eminent domain power is warranted based on the Commission's submissions. i. If the eminent domain is warranted, the City shall be granted appropriate funding to proceed; upon issuance of funding, the City must submit a proposed plan of action with specific deadlines. 1. The administrative law judge is responsible for ensuring that the Commission abide by the timeline. 6. At any point in the proceedings, and before the issuance of the Final Citation, the owner can request an administrative hearing to take place within 30 days. At the hearing, the owner can contest the state of neglect or the amount of repairs required. 7. At any point, an owner can submit to the Commission an application of economic hardship, meaning that he is unable to complete the requested repairs because of insufficient funds. Upon a determination that the owner falls below a minimum income (to be determined by Commission on a case -by -case basis), the Commission shall: a. Authorize the city to conduct the repairs and levy cost as lien against property. b. Recommend that the owner auction or sell the building. i. If the owner refuses to sell the building, he must negotiate with the city a schedule of repairs, to be paid by loans from the city, along with a schedule of repayment. 34 8. The issuance of a Final Citation, after review by an administrative law judge, can be appealed to Civil District Court. 9. The case will not be `closed' until the Commission determines that the repairs have been completed to a satisfactory level. 10. At any point, if the Commission determines that the owner is not conducting the repairs he submitted, the Commission shall issue a citation, documenting what must be done and within what time period. 11. All correspondence with the owner shall be documented and reported in the case file. 35 principal or the local governing body may suspend or terminate an agreement after a public hearing. (h) Enforcement. -- Unless the agreement is. terminated under subsection (g) of this section, the parties to an agreement or their successors in interest may enforce the agreement. 7-306. Limitations This subtitle does not require the adoption of a local law by a local governing body' or authorize a local governing body to require a party to enter into an agreement. SUBTITLE 4- INCLUSIONARY ZONING § 7-401. Affordable housing. (a) Powers. -- To promote the creation of housing that is affordable by individuals and families with low or moderate incomes, a legislative body that exercises authority under this division may enact local laws: (1) imposing inclusionary zoning, and awarding density bonuses, to create affordable housing units; and (2) restricting the use, cost, and resale of housing that is created under this subtitle to ensure that the purposes of this subtitle are carried out. (b) Power additional. -- The authority granted under this subtitle is in addition to any other zoning and planning powers. TITLE 8 -HISTORIC PRESERVATION SUBTITLE 1 - GENERAL'PROVISIONS 8-101. Definitions (a) In general:'-- In this title the following words have the meanings indicated. (b) Appurtenance and environmental setting. -- "Appurtenance and environmental setting" includes: (1) paved or unpaved walkways and driveways; (2) trees; (3) landscaping; IviD Annotated Code —Land Use Chapter 83 Division I —Effective January 1, 2013 . _ (4) pastures; (5) croplands; (6) waterways; and (7) rocks. (c) Commission. -• "Commission" includes a historic district commission or a historic preservation commission 22 (d) Demolition. -- "Demolition" includes any willful neglect in the maintenance and repair of a structure, other than the appurtenance and environmental setting of the structure, that: (1) is not due to a financial inability to maintain and repair the structure; and (2) threatens to result in a substantial deterioration of the exterior features of the structure. (e) District. -- "District" means a significant concentration, linkage, or continuity of sites, structures; or objects united historically or aesthetically by plan or. development. (f) Person. --"Person" includes a unit of local government. (g) Routine maintenance. -- "Routine maintenance" means work that: (1) does not alter the exterior fabric or features of a site or structure; and (2) has no material effect on the historical, archaeological, or architectural significance of the site or structure. (h) Site. -- "Site" means the location of: (1) an event of historic significance; or (2) a structure or ruin that possesses historic, archaeological, or cultural significance. (i) Structure (1) "Structure" means a combination of material to form a construction that is stable 23 22 This subsection is new language added to define the term "commission", which appears throughout this title, and to eliminate the need to refer to a historic district commission and a historic preservation commission in every instance.. MD Annotated Code —Land Use Chapter 84 Division 1 —Effective January 1, 2013 (2) "Structure" includes: (i) a building; (ii) a stadium;. (iii) a reviewing stand; (iv) a platform; (v) staging; (vi) an observation tower; (vii) a radio tower; (viii) a water tank or tower; (ix) a trestle; • (x) a bridge; (xi) a pier; (xii) paving; • (xiii) a bulkhead; (xiv) a wharf; (xv) a shed; (xvi) a coal bin; (xvii) a shelter; (xviii) a fence; (xix) a display sign that is visible or intended to be visible from a public way; and (xx) apart of a structure. 23 The Land Use Article Review Committee noted, for consideration by the General Assembly, that the comprehensive definition of 'structure in paragraph (1) of this subsection was very broad and perhaps overly inclusive. MD Annotated Code — Land Use Chapter • 85 Division I —Effective January 1, 2013 4 8-102. Declaration of public ururpose It is a public purpose in the State to preserve sites, structures, and districts of historical, archaeological, or architectural significance and their appurtenances and environmental settings. 4 8-103. Scope and construction of title (a) Scope of title.-- The preservation of a designated structure under this title. includes preservation of an associated: (1) natural land formation; and. (2) appurtenance and environmental setting. (b). Construction of title. --.This title may not be construed to prevent routine maintenance, customary farming operations, or landscaping that does not have a material effect on the historic, archaeological, or architectural significance of a designated site, structure, or district. 4 8-104. Regulation of sites and structures (a) Powers of legislative body. -- The legislative body of each local jurisdiction, by local law, may regulate: —. (1) the construction, reconstruction, alteration, moving,and demolition of sites or structures of historical, archaeological, or architectural significance; (2) the construction, reconstruction, alteration, moving, and demolition of sites and structures within districts; and (3) the appurtenances and environmental settings of sites and structures within the limits of the local jurisdiction. (b) Purpose of local law. -- The purpose of a local law adopted under this section is to: (1) safeguard the heritage of the local jurisdiction.by preserving sites, structures, or districts that reflect elements of cultural, social, economic, political, archaeological, or architectural history; (2) stabilize and improve the property values of those sites, structures, or districts; (3) foster civic beauty; MD Annotated Code — Land Use Chapter . • 86 Division I —Effective January 1, 2013 • (4) strengthen the local economy; and • (5) promote the preservation and appreciation of those sites, structures, and districts for the education and welfare of the residents of each local jurisdiction. 8-105. Designation of boundaries for sites, structures, and districts For the purposes of this title, each local jurisdiction may designate boundaries for sites, structures, and districts that are considered to be of historic, archaeological, or architectural significance, by following the procedures of the local jurisdiction for establishing or changing zoning districts and classifications. SUBTITLE 2- COMMISSION § 8-201. Establishment A local jurisdiction may create a historic district commission or a historic preservation commission. & 8-202. Membership (a) Composition (1) A commission shall consist of at least five members. (2) A majority of the members of a commission shall be residents of the local jurisdiction that created the commission. (b) Qualifications (1) Each member of a commission shall have a demonstrated special interest, specific knowledge, or professional or academic training in: (i) history; (ii) architecture; (iii) architectural history; (iv) planning; (v) archaeology; (vi) anthropology; MD Annotated Code —Land Use Chapter 87 Division I —Effective January 1, 2013 j (vii) curation; (viii) conservation; • (ix) landscape architecture; (x) historic preservation; (xi) urban design; or (xii). a related discipline. (2) A local jurisdiction that creates a commission may establish and publicly adopt additional qualifications for a member of the commission. (c) Tenure; vacancies (1) The term of a member of a commission is 3 years. (2) The terms of the members shall be staggered. (3) A member is eligible for reappointment. (4) The appointing authority shall fill any vacancy on a commission for the unexpired term of the vacant. position. (d) Alternate member (1) Each local jurisdiction may designate one alternate member for the commission, who may sit on the commission when any other member of the commission is absent. - (2) When the alternate member is absent, the local jurisdiction may designate a temporary alternate. 8-203. Meetings (a) Rules and regulations. --A commission shall adopt rules and regulations necessary for the conduct of its business. (b) Right to appear.-- An interested person or representative of an interested person may appear and be heard at a public hearing that a commission conducts, LID Annotated Code — Land Use Chapter 88 Division I —Effective January 1, 2013 § 8-204. Accepting gifts Subject to any requirements of the local jurisdiction that relate to the acceptance and use of gifts by public officials, a commission may accept and use gifts as needed to perform its duties. $ 8-205. Powers (a) Acquisition of easements (1) Subject to any requirements of the local jurisdiction that relate to the acquisition of easements, a commission may acquire easements in connection with individual sites or structures, or with sites or structures located in or adjacent to a locally designated historic district. (2) An.easement acquired by a commission may grant to the commission, the residents of the historic district, and the public the right to ensure that any site, structure, or surrounding property on which the easement is applied is protected in perpetuity from changes that would affect the historic, archaeological, or architectural significance ofthe site, structure, or surrounding property. (b) Designation of Maryland Historical Trust (1) A commission may desigiiate the Maryland Historical Trust to analyze and make recommendations on the preservation of sites, structures, or districts of historic, archaeological, architectural, or cultural significance within the area the commission serves. (2) The recommendations of the Maryland Historical Trust may include: (i) proposed boundaries for sites, structures, and districts; and (ii) the identification and designation of the sites, structures, and. districts to be preserved. SUBTITLE 3 PRESERVATION AND PERMITTING & 8-301. Guidelines for rehabilitation and new construction design (a) Adoption. -- A local jurisdiction shall adopt guidelines for rehabilitation and new construction design for designated sites, structures, and districts that are consistent with those generally recognized by the Maryland Historical Trust. (b) Contents. -- The guidelines adopted under this section may include: MID Annotated Code —Land Use Chapter - 89 Division I—EffectiveJanuary1,2013 'i Tm (1) design characteristics intended to meet the needs. of particular types of sites, structures, and districts; and (2) identification of categories of changes that are so minimal in nature that they do not: (i) affect historic, archaeological, or architectural significance; and (ii) require review by a commission. S 8-302. Application for changes to sites or structures -- In general (a) Application. -- A person shall file an.application with the commission before constructing, reconstructing, altering, moving, or demolishing a site or structure located within a locally designated district if any exterior changes are involved that would affect the historic, , archaeological, or architectural significance of the site or structure, any portion of which is visible or intended to be visible from a public way. (b) Approval or rejection of application (1) An application filed under subsection (a) of this section shall be considered and approved or rejected by the commission. (2) The commission may reject an application based only on the considerations listed in § 8-303(a) of this subtitle. (c) Resubmission of application. -- An applicant may not resubmit, an application that is identical to a rejected application for 1 year after the rejection. (d) Restrictions. -- A local jurisdiction may not grant a permit for a change to a locally designated site or structure, or to a site or structure located in a locally designated district, until the commission has acted on the application in accordance with § 8-303(a) of this subtitle. § 8-303. Application for changes to sites or structures -- Review of application (a) Requirements. -- In reviewing an application, a commission shall: (1) use the guidelines adopted under § 8-301 of this subtitle; and (2) consider: MD Annotated Code —Land Use Chapter 90 Division I—EffectiveJanuary 1, 2013 (i) the historic, archaeological, or architectural significance of the site or structure and its relationship to the historic, archaeological, or architectural significance of the surrounding area; (ii) the relationship of the exterior architectural features of the structure to the remainder of the structure and to the surrounding area; (iii) the general compatibility of exterior design, scale, proportion, arrangement, texture, and materials proposed to be used; and (iv) any other factors, including aesthetics, that the commission considers pertinent. (b) Restrictions. -- A commission shall consider only the exterior features of a structure. & 8-304. Plans for sites or structures (a) Requirements. -- A commission shall strictly judge plans for sites or structures determined by research to be of historic, archaeological, or architectural significance. (b) Prohibitions. -- Unless the plans would seriously impair the historic, archaeological, or architectural significance of the surrounding site or structure; a commission may not strictly judge plans: (1) for a site or structure of little historic, archaeological, or architectural significance; or (2) involving new construction: (c) Limitations on architectural style. -- A commission is not required to limit construction, reconstruction, or alteration to the architectural style of any one period. 8-305. Preservation of sites or structures (a) Plan for preservation. -- A commission shall attempt; with the owner of a site or structure, to formulate an economically feasible plan to preserve the site or structure if (1) 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 (2) the commission considers preservation of the site or structure to be of unusual importance to the local jurisdiction, the State, or the nation. MD Annotated Code —Land Use Chapter - 91 Division I— Effective ,January 1, 2013 "w } (b) Rejection of application. -- Unless the commission is•satisfied that the proposed construction, reconstruction, or alteration will not materially impair the historic, archaeological; or architectural significance of the site or structure, the commission shall: (1) reject the application; and (2) file a copy of its rejection with the building inspector of the local jurisdiction. (c) Negotiations for preservation: -- The commission shall have 90 days after the date on which the commission concludes that an economically feasible plan cannot be formulated under this section to negotiate with the owner and other parties to fmd a means of preserving the site or structure. (d) Exceptions. -- If a site or structure is'considered to be valuable for its historic, archaeological, or architectural significance, a commission may approve proposed construction, reconstruction, alteration, moving, or demolition, despite the fact that the changes come within the provisions of this section if: (1) the site or structure is a deterrent to a major improvement program that 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. & 8-306. Certificate of approval, modification, or rejection (a) Filing with building inspector (1) A commission shall file with the building inspector of the local jurisdiction a certificate of the. commission's approval, approval with conditions, or modification, or written notice of rejection of an application or plan submitted to the commission for review. (2) An applicant may not begin work on a project submitted to the commission for review until the commission has filed the certificate of approval, approval with conditions, or modification with the building inspector. (3) The building inspector may not issue a building permit for a change or construction submitted to the commission for review until the building inspector has received the certificate of approval, approval with conditions, or modification from the commission. MD Annotated Code — Land Use Chapter 92 Division I —Effective JaAnaiy 1, 2013 (b) Issuance to owner, lessee, or tenant. -- If there is no building inspector in the local jurisdiction: (1) a commission shall issue a certificate of the commission's approval, approval with conditions, or modification, or a written notice of rejection, to the owner, lessee, or tenant of the property that is the subject of the application or plan; and (2) the owner, lessee, or tenant may not begin the proposed work or change until the commission has issued the certificate of approval, approval with conditions, or modification. § 8-307. Failure to act on completed application (a) If a commission fails to act on a completed application within 45 days after the date when the completed application was filed, the application shall be considered approved unless: (1) the applicant and the commission agree to an extension of the 45 -day period; or (2) the application is withdrawn. § 8-308. Appeal of decision Any person aggrieved by a decision of a commission may appeal the decision in the manner provided for an appeal from the decision of the planning commission of the local jurisdiction. SUBTITLE 4- MISCELLANEOUS PROVISIONS § 8-401. Conversion of overhead facilities (a) Local laws (1) Each local jurisdiction in which a district is designated may enact local laws requiring that: (i) utility companies relocate existing overhead lines and facilities underground within the defined part of the district or the entire district; and (ii) if necessary, private owners who receive service from the relocated lines and facilities place any connection underground. . (2) A local law enacted under this section shall: MD Annotated Code — Land Use Chapter 5 93 Division I —Effective January 1, 2013 • (i) require that the estimated cost to property owners for work performed on private property be determined and made available to affected property owners; (ii) provide financing for these costs to private owners, including financing for any charges for the amortization of bonds issued to initially cover private costs; and (iii) include any other provisions reasonably related to placing overhead lines and facilities underground and administering underground relocation projects. (b) Apportionment of costs by Public Service Commission (1) Except as otherwise provided in this section, the Public Service Commission shall: (i) determine. the amount of the monthly surcharge required to support the net capital costs of an underground relocation and determine which customers of the applicable, utility are subject to the surcharge; (ii) include the related net capital costs in the rate base; or (iii) adopt any other method to appropriately apportion the costs. (2) A utility may not be required to pay more than one-half of the net capital costs of an underground relocation. (c) Appropriation by local jurisdiction. -- A local jurisdiction may appropriate money for underground relocation projects from any federal, State, and local funds the local jurisdiction receives for that purpose. (d) Agreements with property owners (1) In implementing subsection (a)(2)(ii) of this section, the local jurisdiction may enter into an agreement with individual property owners under which the local jurisdiction agrees to advance funds to cover the property owners' costs for thefl relocation of the overhead lines and facilities. (2) (i) The local jurisdiction may appropriate money, impose taxes, or borrow money to pay and advance the costs of an underground relocation: (ii) In order to recapture expended costs, the local jurisdiction may: MD Annotated Code — Land Use Chapter 94 i Division I —Effective January 1, 2013 1. impose a benefit assessment against property in the district on behalf of which the utility is relocated underground; and 2. provide for the collection of the assessment. SUBTITLE 5. ENFORCEMENT 8-501. Request for enforcement A commission may request that the appropriate enforcement authority of the local jurisdiction seek any of the remedies and penalties provided by law for any violation of a local law adopted under this title. TITLE 9- SINGLE CO UNTY PRO VISIONS SUBTITLE 1- ALLEGANY COUNTY $ 9-101. Scope of subtitle This subtitle applies to Allegany County. 9-102. Planning commission (a) Composition..-- The planning commission may consist of nine members. (b) Tenure (1) The term of a member of the planning commission is 5 years. (2) The terms of two of the members of the planning commission shall be staggered. (3) At the end of a term, a member of the planning commission continues to serve until a'successor is appointed and qualifies. SUBTITLE 2- ANNE ARUNDEL COUNTY § 9-201 Reserved. MD Annotated Code —Land Use Chapter 95 Division I —Effective danuaty 1, 2013 �•.. I 44 ,r , ½ , 4 Chapter 24A. Historic Resources Preservation. [Note] § 24A-1. Purpose. § 24A-2. Definitions. § 24A-3. Master plan for historic preservation; criteria for designation of historic sites or districts. § 24A-4. Historic preservation commission. § 24A-5. Same -Powers and duties. § 24A-6, Historic area work permits -Generally. § 24A-7. Historic area work permits -Application procedures; appeals. § 24A-8. Same -Criteria for issuance. § 24A-9. Demolition by neglect. § 24A-10. Moratorium on alteration or demolition. § 24A-11. Violations and penalties. § 24A-12. Severability. § 24A-13. Historic preservation easement program. Sec. 24A-1. Purpose. It is the purpose of this chapter to provide for the identification, designation and regulation, for purposes of protection, preservation and continued use and enhancement, of those sites, structures with their appurtenances and environmental settings, and districts of historical, archeological, architectural or cultural value in that portion of the county which is within the Maryland -Washington Regional District. Its further purpose is to preserve and enhance the quality of life in the county, safeguard the historical and cultural heritage of the county, strengthen the local economy, stabilize and improve property values in and around such historical areas, foster civic beauty and to preserve continued utilization and pleasure of the citizens of the county, the state, and the United States of America. (Ord. No. 9-4, § 1; Ord. No. 11-59.) Sec. 24A-2. Definitions. For the purposes of this Chapter, the following words and phrases have the following meanings: Page 1 of 1 Appurtenances and environmental setting: The entire parcel, as of the date on which the historic resource is designated on the master plan, and structures thereon, on which is located an historic resource, unless reduced by the District Council or the commission, and to which it relates physically and/or visually. Appurtenances and environmental settings shall include, but not be limited to, walkways and driveways (whether paved or not), vegetation (including trees, gardens, lawns), rocks, pasture, cropland and waterways. Board: The County Board of Appeals of Montgomery County. Commission: The historic preservation commission of Montgomery County as described hereinafter. Demolition by neglect: The failure to provide ordinary and necessary maintenance and repair to an historic site or an historic resource within an historic district, whether by negligence or willful neglect, purpose or design, by the owner or any party in possession of such a site, which results in any of the following conditions: (a) The deterioration of exterior features so as to create or permit a hazardous or unsafe condition to exist. (b) The deterioration of exterior walls, roofs, chimneys, windows, the lack of adequate waterproofing or deterioration of interior features or foundations which will or could result in permanent damage, injury or loss of or to the exterior features. Director: The Director of the Department of Permitting Services, or the Director's designee. Exterior features: The architectural style, design and general arrangement of the exterior of an historic resource, including the color, nature and texture of building materials, and the type of style of all windows, doors, light fixtures, signs or other similar items found on or related to the exterior of an historic resource. Historic district: A group of historic resources which are significant as a cohesive unit and contribute to the historical, architectural, archeological or cultural values within the Maryland -Washington Regional District and which has been so designated in the master plan for historic preservation. Historic resource: A district, site, building, structure or object, including its appurtenances and enviromnental setting, which is significant in national, state or local history, architecture, archeology or culture. This includes, but is not limited to, all properties on the "Locational Atlas and Index of Historic Sites in Montgomery County." Historic site: Any individual historic resource that is significant and contributes to the historical, architectural, archeological or cultural values within the Maryland -Washington Page 2 of 2 d. Represents a significant and distinguishable entity whose components may lack individual distinction; or e. Represents an established and familiar visual feature of the neighborhood, community or county due to its singular physical characteristic or landscape. (Ord. No. 9- 4, § 1; Ord. No. 11-59.) Sec. 24A-4. Historic preservation commission. (a) Created. There is hereby created a commission to be known as the "historic preservation commission of Montgomery County, Maryland." (b) Membership. The commission shall consist of 9 members appointed by the county executive with the confirmation of the county council. Each member must be a resident of the county. The 4 fields of history, architecture, preservation and urban design shall be represented by a minimum of I member qualified by special interest, knowledge or training. The remaining members of the commission shall, to the extent possible, be selected to represent the geographical, social, economic and cultural concerns of the residents of the county. (c) Officers. The county executive shall appoint the chairman and vice-chairman of the commission, who shall serve at his pleasure, but such appointments occurring after the commission's first year of operation shall be made after due consideration has been given to the recommendation of the commission. (d) Term. The terms of the members of the commission shall be for a three-year period and members shall continue to serve until their successors are appointed and qualified. (e) Vacancy. Any vacancy in the membership of the commission caused by the expiration of a term, by resignation or death, by a superseding incapacity to discharge duties, by a removal for cause, or by any other cause creating such vacancy, shall be filled for a new term, or for the remainder of the term for which there is a vacancy as the case may be, in the same manner as provided herein for the nomination and appointment of the initial members of the commission. (f) Removal for cause. A member may be removed for cause from the commission by the county executive. (g) Compensation. The members of the commission serve without compensation. (h) Regulations. The commission must adopt, under method (2) of Section 2A-15 of this Code, rules, guidelines and regulations that are necessary for the proper transaction of the business of the commission, This includes provisions governing contested cases before the commission. Page 4 of 4 (1) Meetings. The commission shall hold such regular meetings which, in its discretion, are necessary to discharge its duties. Such meetings shall be open to the public. (2) Staff. There may be appointed and assigned to the commission such employees, and the chief administrative officer shall make available to the commission such services and facilities of the county, as are necessary or appropriate for the proper performance of its duties, and the county attorney shall serve as counsel to the commission. (Ord. No. 9-4, § 1; 1984 L.M.C., ch. 24, § 26; Ord. No. 11-59; FY 1991 L.M.C., ch. 9, § 1.) Cross reference -Boards and commissions generally, § 2-141 et seq. Sec. 24A-5. Same -Powers and duties. The commission has the following powers and duties: (a) To research historic resources and to recommend to the planning board that certain of them be designated as historic sites or historic districts on the master plan for historic preservation and, hence, be subject to the provisions of this chapter. (b) To recommend to the planning board, as needed, any update to the inventory of historic resources which is contained in the "Locational Atlas and Index of Historic Sites in Montgomery County." (c) To act upon applications for historic area work permits and other matters referred to it for action pursuant to the provisions of this chapter. (d) To appoint members to local advisory panels to assist and advise the commission on the performance of its functions. (e) To recommend programs and legislation to the council and the planning board to encourage historic preservation in the Maryland -Washington Regional District. (t) To review any legislation and proposals affecting historic preservation, including preparation of master plans, and to make recommendations on such legislation and proposals to appropriate authorities. (g) To serve as a clearinghouse for information on historic preservation for county government, individuals, citizens' associations, historic societies and local advisory committees; to provide information and educational materials for the public; and to undertake activities to advance the goals of historic preservation in the county. (h) To employ or hire consultants or other temporary personnel, consistent with county contract provisions, as deemed necessary to assist the commission in the Page5of5 accomplishment of its functions; such consultants or other personnel shall be compensated as maybe provided for in the county budget. (i) To administer an historic preservation easement program and any revolving funds or grant programs to assist in historic preservation. 0) To advise the planning board, in the event of subdivision of land containing an historic resource, on the appurtenances and environmental setting necessary to preserve it. (k) To delineate the extent of appurtenances and environmental setting associated with an historic site or resource. (Ord. No. 9-4, § 1; 1989 L.M.C., ch. 4, § 1; Ord. No. 11- 59.) Sec. 24A-6. Historic area work permits -Generally. (a) Required. An historic area work permit for work on public or private property containing an historic resource must be issued pursuant to the provisions of this chapter before: (1) Constructing, reconstructing, moving, relocating, demolishing or in any manner modifying, changing or altering the exterior features of any historic site or any historic resource located within any historic district. (2) Performing any grading, excavating, construction or substantially modifying, changing or altering the environmental setting of an historic site or an historic resource located within an historic district; (3) Erecting or causing to be erected any sign or advertisement (with the exception of those signs which temporarily advertise for sale an historic site or an historic resource located within an historic district, or which for a temporary period advertise a political viewpoint) on the exterior or on the environmental setting of any historic site or any historic resource located within any historic district. (b) Exceptions. Nothing in this section shall be construed to require the issuance of an historic area work permit for any ordinary maintenance, repair of exterior features, any customary farming operations or any landscaping, which will have no material effect on historic resource located within an historic district, of which such features are a part. For the purposes of clarification of this section, the commission shall develop and publish guidelines regarding what activities constitute ordinary maintenance and shall send a copy of these guidelines by registered mail to all owners of historic resources designated on the master plan. (c) Disclosure requirements. Page 6 of 6 (1) Applicants for permits to demolish or substantially alter the exterior features of any historic site or historic resource located within an historic district are required to disclose its identification as such in writing on any application therefor. (2) Any person who shall undertake any work as stated in subsection (a) of this section without first obtaining an historic area work permit shall be subject to the penalties established in section 24A- 11. (d) Advice of commission prior to application. The commission shall adopt procedures to encourage owners of historic resources to seek the advice of the commission prior to filing an application for an historic area work permit, on the appurtenances and environmental setting appropriate to the resource, construction methods and materials, financial information concerning historic preservation or any other matter under this chapter affecting the issuance of a permit, (Ord. No. 9-4, § 1; Ord. No. 11-59.) Sec. 24A-7. Historic area work permits -Application procedures; appeals. (a) Applications. An applicant for an historic area work permit must file an application with the Director. The application must contain all information the Commission requires to evaluate the application under this Chapter. (b) Referral of application. Within 3 days after the application is complete, the Director must forward the application to the Commission for review. (c) Public meeting. When the Commission receives the application, the Commission must schedule a public meeting to consider the application. (d) Notice. The Commission must notify the Director and any citizen or organization that the Commission reasonably determines has an interest in the application of the time and place of the public meeting. (e) Conduct of Commission meeting. The public meeting on the application must be informal and formal rules of evidence do not apply. The Commission must encourage interested parties to comment and must keep minutes of the proceedings on the application. (f) Action by the Commission. (1) The Commission must make a public decision on the application under paragraph (2) not later than 45 days after the applicant files the application or 15 days after the Commission closes the record on the application, whichever is earlier. (2) The Commission must instruct the Director to issue or deny the permit. The Commission may require the Director to issue the permit with reasonable conditions Page 7 of 7 necessary to assure that work under the permit does not harm the historical, architectural, archeological or cultural value of the historic resource. (3) If the Commission instructs the Director to deny the permit, the Commission must notify the applicant in writing why the Commission denied the application. (4) The commission must instruct the Director to issue the permit if the Commission finds that: (A) denial of the permit would prevent the reasonable use of the property or impose undue hardship on the owner; and (B) within 120 days after the finding in subparagraph (A), no person seeking preservation has submitted an economically feasible plan for preserving the structure. (5) If the Commission does not act on an application within the time periods provided in this subsection, the application is approved, unless the applicant agrees to extend the deadline for Commission action. (g) Miscellaneous provisions. (1) The applicant for a permit has the burden of production and persuasion on all issues the Commission determines. If another historic preservation organization holds a deed of easement for the property in the application, the applicant must submit proof to the Commission that the organization conducted an exterior architectural review and approved the action for which the applicant is seeking a permit. (2) (A) The Commission may, by regulations issued under method (2), delegate authority to a County employee qualified in historic preservation and assigned to staff the Commission to review and approve an application for work that commonly has no more than an insignificant effect on an historic resource. (B) The regulations: (i) must describe the types of work that staff can review and approve, and require the Commission to review any application that is not clearly subject to staff approval; and (ii) may waive the public meeting and notice requirements of subsections (c) and (d) for applications clearly subject to staff approval. (C) If the staff denies or does not act on an application within 5 days after the Commission received the application from the Director, the Commission must review the application de novo. Page8of8 (D) Staff must report monthly to the Commission and each appropriate Local Advisory Panel about any application reviewed by the staff in the previous month, including the disposition of the application. (3) A permit may impose conditions that require waiver of a provision of the building code if the waiver is allowed under the "historic structures" provision of the building code adopted under Section 8-14 and the code inspector determines that waiver is appropriate for the specific work covered by the permit. (4) The Director must enforce this Chapter. (h) Appeal. (1) Within 30 days after the Commission makes a public decision on an application, an aggrieved party may appeal the Commission's decision to the Board of Appeals, which must review the decision de novo. The Board of Appeals may affirm, modify, or reverse any order or decision of the Commission. (2) A party may appeal a decision of the Board of Appeals under Section 2-114. (Ord. No. 9-4, § 1; Ord. No. 11-59; Ord. No. 13-111, § 1.) Sec. 24A-8. Same -Criteria for issuance. (a) The commission shall instruct the director to deny a permit if it finds, based on the evidence and information presented to or before the commission that the alteration for which the permit is sought would be inappropriate, inconsistent with or detrimental to the preservation, enhancement or ultimate protection of the historic site or historic resource within an historic district, and to the purposes of this chapter. (b) The commission shall instruct the director to issue a permit, or issue a permit subject to such conditions as are found to be necessary to insure conformity with the purposes and requirements of this chapter, if it finds that: (1) The proposal will not substantially alter the exterior features of an historic site or historic resource within an historic district; or (2) The proposal is compatible in character and nature with thehistorical, archeological, architectural or cultural features of the historic site or the historic district in which an historic resource is located and would not be detrimental thereto or to the achievement of the purposes of this chapter; or (3) The proposal would enhance or aid in the protection, preservation and public or private utilization of the historic site or historic resource located within an historic district in a manner compatible with the historical, archeological, architectural or cultural value of the historic site or historic district in which an historic resource is located; or Page 9 of 9 (4) The proposal is necessary in order that unsafe conditions or health hazards be remedied; or (5) The proposal is necessary in order that the owner of the subject property not be deprived of reasonable use of the property or suffer undue hardship; or (6) In balancing the interests of the public in preserving the historic site or historic resource located within an historic district, with the interests of the public from the use and benefit of the alternative proposal, the general public welfare is better served by granting the permit. (c) It is not the intent of this chapter to limit new construction, alteration or repairs to any I period or architectural style. (d) In the case of an application for work on an historic resource located within an historic district, the commission shall be lenient in its judgment of plans for structures of little historical or design significance or for plans involving new construction, unless such plans would seriously impair the historic or architectural value of surrounding historic resources or would impair the character of the historic district. (Ord. No. 9-4, § l; Ord. No. 11-59.) Sec. 24A-9. Demolition by neglect. In the event of a case of demolition by neglect of an historic resource on public or private property, the following provisions shall apply: (a) If the historic resource has been designated on the master plan as an historic site or an historic resource within an historic district, the director shall issue a written notice to all persons of record with any right, title or interest in the subject property, or the person occupying such premises, of the conditions of deterioration and shall specify the minimum items of repair or maintenance necessary to correct or prevent further deterioration. The notice shall provide that corrective action shall commence within 30 days of the receipt of such notice and be completed within a reasonable time thereafter. The notice shall state that the owner of record of the subject property, or any person of record with any right, title or interest therein, may, within 10 days after the receipt of the notice, request a hearing on the necessity of the items and conditions contained in such notice. In the event a public hearing is requested, it shall be held by the commission upon 30 days' written notice mailed to all persons of record with any right, title or interest in the subject property and to all citizens and organizations which the director feels may have an interest in the proceedings. (1) After a public hearing on the issue of necessity of improvements to prevent demolition by neglect, if the commission finds that such improvements are necessary, it shall instruct the director to issue a final notice to be mailed to the record owners and all parties of record with any right, title or interest in the subject property advising of the items of repair and maintenance necessary to correct or prevent further deterioration. The Page 10 of 10 owners shall institute corrective action to comply with the final notice within 30 days of receipt of the revised notice. (2) In the event the corrective action specified in the final notice is not instituted within the time allotted, the director may institute, perform and complete the necessary remedial work to prevent deterioration by neglect and the expenses incurred by the director for such work, labor and materials shall be a lien against the property, and draw interest at the highest legal rate, the amount to be amortized over a period of 10 years subject to a public sale if there is a default in payment. (3) Failure to comply with the original or final notice shall constitute a violation of this chapter for each day that such violation continues and shall be punishable as set forth in section 24A- 11. (4) In the event that the commission finds that, notwithstanding the necessity for such improvements, action provided in paragraphs (1) and (2) of this subsection would impose a substantial hardship on any or all persons with any right, title or interest in the subject property, then the commission shall seek alternative methods to preserve the historic site or historic resource located within an historic district. If none are confirmed within a reasonable time, the director shall not proceed in accordance with paragraphs (1) and (2). (b) If the historic resource is listed in the "Locational Atlas and Index of Historic Sites in Montgomery County, Maryland," or the microfilmed addenda to such atlas, published by the Maryland -National Capital Park and Planning Commission, the director shall advise the planning board which, after receiving the recommendation of the commission, shall conduct a public hearing to determine whether the historic resource will be designated as an historic site or historic district in the master plan for historic preservation. (1) Where the planning board determines that the historic resource will not be included in the master plan for historic preservation, no further action will be taken. (2) Where the planning board determines that the historic resource in all likelihood will be included in the master plan for historic preservation, the planning board shall initiate an amendment to the master plan for historic preservation pursuant to the provisions of article 28 of the Annotated Code of Maryland. a. In the event that such amendment is adopted and the historic resource is placed on the master plan for historic preservation as an historic site or an historic resource within an historic district, the director shall give written notice to all persons with any right, title, or interest in the subject property of the conditions of deterioration and shall specify the items of repair or maintenance necessary to stabilize the condition of the historic resource and prevent further deterioration. Page 11 of 11 b. Such notice shall provide that such stabilization work shall commence within 30 days of receipt of the notice and shall be completed within a reasonable time thereafter. c. In the event that stabilization action is not instituted within the time allotted, or not completed within a reasonable time thereafter, the director may institute, perform and complete the necessary stabilization work and the expenses incurred by the director for such work, labor or materials shall be a lien against the property, and draw interest at the highest legal rate, the amount to be amortized over a period of 10 years subject to a public sale if there is a default in payment. (Ord. No. 9-4, § 1; Ord. No. 11 - 59.) Sec. 24A- 10. Moratorium on alteration or demolition. (a) Application for permits for historic resources on locational atlas. Any applicant for a permit to demolish or substantially alter the exterior features of any historic resource which is listed in the "Locational Atlas and Index of Historic Sites in Montgomery County, Maryland," or the microfilmed addenda to that atlas, published by the Maryland - National Capital Park and Planning Commission, but which is not designated as an historic site or historic district on the master plan for historic preservation, must disclose that fact on the application. If the historic resource is located in an area under review for designation as an historic district and is not under review for designation as an historic site, the application must be reviewed under the procedure in Section 24A-7 if the applicant seeks review under that Section. (b) Referral to the planning board. If the applicant does not seek review under Section 24A- 7, the Director must promptly forward the permit application to the Planning Board to make a finding, after a public hearing, as to the significance of the historic resource and to determine whether, after considering the recommendations of the Commission, the property will be designated as an historic site or an historic resource within an historic district, listed in the master plan for historic preservation. The Planning Board's public hearing on an application to demolish or substantially alter any historic resource listed in the locational atlas satisfies the requirements of section 33A-6 for a public hearing on a preliminary draft amendment to the historic preservation master plan if all notice requirements of that section are met. (c) Determination by the planning board (1) Where the planning board determines that the historic resource will not be included in the master plan for historic preservation, the director shall forthwith issue the permit. (2) Where the planning board determines that the historic resource in all likelihood will be included in the master plan for historic preservation, the director shall withhold issuance of the permit once for a maximum period of 195 days from the date the application for demolition is filed. If, as a result of the master plan process, the property Page 12 of 12 is designated an historic site or an historic resource within an historic district, the application shall be governed by the procedures established in section 24A-7. If, after a public appearance as provided for in section 24A-7, the commission determines that failure to grant the permit applied for will have the effect of denying the property owner of all reasonable use of his property or causing him to suffer undue hardship, then the commission must instruct the director to issue the permit subject to such conditions, if any, as are found to be necessary to insure conformity with the purposes and requirements of this chapter. (d) Time limits for planning board action (1) Within 60 days after the filing of an application, or within 15 days after the closing of the record following a public hearing, whichever occurs later, the planning board shall render its findings and determinations with respect to an application. (2) Failure to adhere to the limits specified in section 24A-10 shall cause the permit to issue by operation of law, except in the event of a finding and further proceedings as provided in subsection (c)(2) of this section. (Ord. No. 9-4, § 1; Ord. No. 11-59; Ord No. 13-99, §1.) Editor's note -Section 2 of Ord. No. 13-99 states: "Effective date and applicability. This ordinance takes effect on the date of Council adoption and applies to any permit application under Section 24A -10(a) of the Code that was not decided before the date this ordinance takes effect." Sec. 24A-11. Violations and penalties. Any person who violates a provision of this chapter, or fails to comply with any of the requirements thereof, or disobeys or disregards a decision of the commission, or fails to abide by the conditions of a permit, shall be subject to punishment for a class A violation as set forth in section 1-19 of chapter 1 of the County Code. Each day a violation continues to exist shall constitute a separate offense, (Ord. No. 9-4, § 1; 1983 L.M.C., ch. 22, § 28; Ord. No. 11-59.) Sec. 24A-12, Severability The provisions of this chapter are severable and if any provisions, clause, sentence, section, word or part thereof is held illegal, invalid or unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity or unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts of the chapter or their applications to other persons or circumstances. It is hereby declared to be the legislative intent that this chapter would have been adopted if such illegal, invalid or unconstitutional provision, clause, sentence, section, word or part had not been included therein, and if the person or circumstance to which the chapter or part thereof is inapplicable had been specifically exempted therefrom. (Ord. No. 9-4, § 1; Ord. 1159.) Page 13 of 13 Sec. 24A-13. Historic preservation easement program. (a) There is a county easement program to preserve historic resources in Montgomery County. The commission must administer the program in accordance with this section. (b) (1) An owner of an historic resource may offer the county a preservation easement to protect or conserve interior or exterior features of the historic resource and its environmental setting or appurtenances by making application to the commission. (2) Upon receipt of an application, the commission must immediately forward the application for review and comment to: (A) the planning board if the historic resource is located within the Maryland - Washington Regional District; and (B) the appropriate agency of a municipality if the historic resource is located within a municipality. Review and comment under this paragraph must be made within 45 days and should include an evaluation of the proposal using the criteria specified in this section as well as identification of competing or supporting land use priorities or other relevant factors or issues. Recommendations may include proposed easement terms and conditions. (3) The commission must review the application to determine if acceptance of the preservation easement would further the county's historic preservation goals. In making its determination, the commission should consider, among other relevant factors: (A) the relative significance of the historic resource; (B) the structural condition; (C) the owner's planned or completed preservation efforts; (D) the existing zoning and nature of the surrounding neighborhood; and (E) whether an easement will promote long-term survival of the historic resource (c) If the historic resource is designated as an historic site in the county master plan for historic preservation, either as an individual site or located within an historic district, the county may acquire an easement upon positive recommendation of the commission and approval of the county executive. If the historic resource is not designated as an historic site in the master plan, the additional approval of the county council is required prior to any acceptance by the county. The commission must forward any comments Page 14 of 14 received under subsection (b)(2) to the county executive and the county council, as appropriate. (d) A preservation easement under this section should be granted in perpetuity and include appropriate terms and conditions that: (1) restrict changes and alterations; (2) require maintenance, repairs, and administration; (3) authorize public access; (4) provide a right of governmental inspection; (5) provide for a right of assignment to the Maryland Historical Trust or other appropriate agency or entity; and (6) establish enforcement remedies. (e) The county may hold a preservation easement jointly with the Maryland Historical Trust. (f) A preservation easement must be recorded by the grantor among the land records of the county at the grantor's cost. The grantor must notify the supervisor of assessments and the Office of the Public Tax Advocate of the recordation of the preservation easement. (g) Reserved.* *Editor's note -As originally enacted, 1989 L.M.C., ch. 4, contained no subsection (g)• (h) A preservation easement may be extinguished by judicial proceeding if an unexpected change in the conditions applicable to the property, such as casualty, make it impossible or impractical to continue to use it for preservation purposes. The terms of an easement related to extinguishment should identify appropriate changes in condition, provide that the county share in any proceeds from a subsequent sale or exchange of the property after the easement is extinguished, and be in accordance with any applicable executive regulations. The sharing in proceeds may include the recapture of property taxes saved by the grantor or its successor in interest, either in part or in full, as a result of the easement. (i) The commission may enter into a cooperative agreement with the Maryland Historical Trust or other appropriate agencies or entities for technical assistance in administering the historic easement program, This may include assistance in property evaluation, negotiation, and inspection. Page 15 of 15 (j) (1) The easement program authorized under this section is in addition to, and does not supersede or otherwise affect, any other county or municipal program or policy requiring the donation of a preservation easement as a condition of financial assistance. It must operate in conjunction with other county or municipal easement programs. (2) The grant of an easement under this section does not eliminate or otherwise alter any county or municipal regulatory requirement applicable to the historic resource, including any requirement to obtain an historic area work permit. (k) The county executive, with the advice of the commission, may adopt regulations under method (2) to administer the historic preservation easement. (1989 L.M.C., ch. 4, § 1; Ord. No. 11-59.) Editor's note -Section 24A-13, relating to the applicability of this chapter within incorporated municipalities, derived from Ord. No. 9-4, § 1, was repealed by § 15 of 1985 L.M.C., ch. 31. See § 2-96. Subsequently, § 1, of 1989 L.M.C., ch. 4, added a new § 24A-13, Section 2 of that act reads as follows: Sec. 2. To assist the County in its administration of the historic preservation easement program, the supervisor of assessments is requested to maintain records of both the assessmentof the property as restricted under this program by easement and the assessment that would apply if the property was not subject to an easement. Endnotes [Note] *Cross reference -Historic preservation tax credit, § 52-41 et seq. Page 16of16