Local historic preservation commission does not have discretion to decide appropriate permit for demolition of non-historic building in historic district

by Gary Taylor

Lehman Investment Co., LLC, v. City of the Village of Clarkston and Clarkston Historical District Commission

Michigan Court of Appeals, August 17, 2023

In June 2017, Lehman Investment Company, LLC (Lehman) requested permission to demolish a residential structure in the historic district of the city of the Village of Clarkston (city). The structure is a vacant home and detached garage in the city’s historic district. The historic district where the home is situated was listed on the National Register of Historical Places in 1980. It is comprised of over 100 buildings dating from approximately 1825 to 1949. This time period, when the core of the town grew to accommodate lumber mills and the processing of grain from surrounding farms, is considered a “period of significance” for historical purposes. The homesite was purchased by local business owner Ethan Hawkin 1949, and the home and garage were constructed in 1953. Because the buildings were constructed after 1949, which was the tail end of the district’s period of significance, they are considered nonhistorical, or a “non-contributing resource,” for purposes of the historic district. Although the property is a non-contributing resource it is nonetheless subject to the Commission’s oversight because it is within the boundaries of a historic district, and anyone seeking to work on the property must go through the permitting process set forth in Michigan’s local historic districts act (LHDA), M.C.L. 399.201 et seq. Specifically, M.C.L. 399.205 provides in part (with emphasis added):

(1) A permit shall be obtained before any work affecting the exterior appearance of a resource is performed within a historic district…. The person…proposing to do that work shall file an application for a permit with the…commission….A permit shall not be issued and proposed work shall not proceed until the commission has acted on the application by issuing a certificate of appropriateness or a notice to proceed as prescribed in this act.


(3) In reviewing plans, the commission shall follow the United States secretary of the interior’s standards for rehabilitation and guidelines for rehabilitating historic buildings, as set forth in 36 C.F.R. part 67. Design review standards and guidelines that address special design characteristics of historic districts administered by the commission may be followed if they are equivalent in guidance to the secretary of interior’s standards and guidelines and are established or approved by the department. The commission shall also consider all of the following:

(a) The historic or architectural value and significance of the resource and its relationship to the historic value of the surrounding area.

(b) The relationship of any architectural features of the resource to the rest of the resource and to the surrounding area.

(c) The general compatibility of the design, arrangement, texture, and materials proposed to be used.

(d) Other factors, such as aesthetic value, that the commission finds relevant….


(6) Work within a historic district shall be permitted through the issuance of a notice to proceed by the commission if any of the following conditions prevail and if the proposed work can be demonstrated by a finding of the commission to be necessary to substantially improve or correct any of the following conditions:

(a) The resource constitutes a hazard to the safety of the public or to the structure’s occupants.

(b) The resource is a deterrent to a major improvement program that will be of substantial benefit to the community and the applicant proposing the work has obtained all necessary planning and zoning approvals, financing, and environmental clearances.

(c) Retaining the resource will cause undue financial hardship to the owner when a governmental action, an act of God, or other events beyond the owner’s control created the hardship, and all feasible alternatives to eliminate the financial hardship, which may include offering the resource for sale at its fair market value or moving the resource to a vacant site within the historic district, have been attempted and exhausted by the owner.

(d) Retaining the resource is not in the interest of the majority of the community.

Lehman’s application listed “redevelopment” as the reason for the proposed project. The Clarkston Historic District Commission (Commission) held three hearings on the project, and on August 29, 2017 issued a formal denial indicating that the application did not meet the secretary of the interior’s standards for issuance of a certificate of appropriateness under M.C.L. 399.205(3). Lehman appealed the decision to the Review Board, which assigned the matter to an Administrative Law Judge (ALJ). The ALJ reversed the Commission’s decision because “no testimony was provided…to support any claim that the instant property had any relationship to the historic value of the surrounding area or…any independent historic value….” Then the Review Board, who had final say on whether demolition could move forward, adopted the ALJ decision in part but remanded for further examination because the ALJ “failed to address that a commission can also review a request for work in an historic district on a non-historic, non-contributing resource….”

I could write another 1,000 words explaining the procedural boomeranging and torturous statutory interpretation prior to the Court of Appeals getting jurisdiction over the case, but instead I will focus on how the court sorted it out. You just need to know at this point that Lehman appealed because he was denied the permit to demolish.

Lehman contended it was inappropriate to require it to proceed under the notice to proceed standard (note: under which it would be tougher for Lehman to get permission to demolish) because it sought to demolish a building of non-significance; however, the court interpreted several sections of the LHDA to conclude otherwise. MCL 399.201a specifically defines “certificate of appropriateness” and “notice to proceed.” Subsection (b) of the statute defines “certificate of appropriateness” as “the written approval of a permit application for work that is appropriate and that does not adversely affect a resource[,]” whereas Subsection (n) defines “notice to proceed” as “the written permission to issue a permit for work that is inappropriate and that adversely affects a resource, pursuant to a finding under [MCL 399.205(6)].” In addition, a “resource” includes “1 or more publicly or privately owned historic or nonhistoric buildings, structures, sites, objects, features, or open spaces located within a historic district, while “work” encompasses “construction, addition, alteration, repair, moving, excavation, or demolition.” Complete destruction of a “resource” (defined to include nonhistoric buildings) is by definition harmful to the resource, according to the court. Consequently, it is plain that the Commission does not have absolute discretion to decide whether to issue a certificate of appropriateness or a notice to proceed, and Lehman’s work falls under the requirement for a notice to proceed.

With that decided, the court addressed Lehman’s argument that the Administrative Law Judge (ALJ) who heard the appeal from the Commission need not remand the matter to the Commission for reconsideration of Lehman’s application (note that previously the ALJ ruled in Lehman’s favor). The court disagreed, noting that the Commission failed to consider the specific criteria applicable to a notice to proceed, and thus the evidence collected would be insufficient for the ALJ to make a determination based on those criteria. Specifically, despite Lehman’s contention that the community’s interest in retaining the property had been “fully vetted” by the Commission, the record provided no evidence as to the the community’s interest in retaining the structure; in fact, at least three citizens made public comments opposed to demolition of the structures. Accordingly, Lehman failed to show error requiring reversal of the ALJ’s ruling against him, and moreover, did not show that the circuit court abused its discretion in affirming that ruling.

News from around Iowa: Iowa City neighborhood to be considered for historic preservation district

The Goosetown neighborhood, and the area around Mann Elementary have been proposed by the Iowa City Historic Preservation Commission to be identified as a new conservation district.  The Iowa City planning and zoning commission will consider the proposal during a meeting in April, and, if approved, the proposal will move to the City Council for consideration.  The article from the Iowa City Press-Citizen is here.

Application to heritage preservation commission for a certificate of appropriateness is a “written request relating to zoning” under Minnesota zoning law

by Kaitlin Heinen

500, LLC v. City of Minneapolis
(Minnesota Supreme Court, September 25, 2013)

500, LLC owns a building at 500 N 3rd St. in Minneapolis and would like to develop the building into an office. 500 submitted a site plan application to the City in September 2008, which the Minneapolis City Council approved. Before reviewing the application, however, the Minneapolis Heritage Preservation Commission nominated the property for designation as a local historical landmark, which placed the property “under ‘interim protection,’ which prohibits ‘destruction or inappropriate alteration [of a nominated property] during the designation process’ in the absence of a ‘certificate of appropriateness.'” (Minneapolis, Minn., Code of Ordinances §§ 599.240, 599.320) So 500 submitted an application for a certificate of appropriateness on May 6, 2009, but the City Council denied the application on July 31, 2009. Ten months later, the City Council approved a resolution designating the property as a local historical landmark, which became final and effective in June 2010.

In October 2010, 500 filed this action against the City, alleging that the City Council “violated…§ 15.99, subd. 2(a), because it failed to approve or deny the application for a certificate of appropriateness within 60 days.” Such failure results in automatic approval at the end of the 60-day period. So 500 requested “judgment that its ‘application for [a] certificate of appropriateness [was] approved and granted by operation of law.'” The district court held that Minn. Stat. § 15.99, subd. 2(a) did not apply because “decisions regarding historic preservation are not brought into or linked in logical or natural association with actual zoning decisions.” The court of appeals affirmed on the grounds that “[b]ecause an application for a certificate of appropriateness was a request to ‘make alterations to the property,’ not to conduct a specific use of the land, the court concluded that an ‘application for a certificate of appropriateness is not a request relating to zoning.'”

The question before the court is whether an application to a heritage-preservation commission for a certificate of appropriateness is a “written request relating to zoning” under Minn. Stat. § 15.99, subd. 2(a). If so, the City had only 60 days to “approve or deny” the application submitted by 500, otherwise automatic approval occurs by operation of law. The court must first determine whether the statute is ambiguous. Minn. Stat. § 15.99 subd. 2(a) does not define “relating to” or “zoning,” so the court must apply their plain and ordinary meanings. “Relating to” means “to bring into…association with,” and the court defines “zoning” as “the regulation of ‘building development and uses of property.'” These definitions together indicate that the statute is unambiguous because it “refers to a written request that has a[n] association…to the regulation of building development of the uses of property.” Within this meaning, the 60-day time limit in § 15.99 subd. 2(a) applies.

The City argued that the statute only referred to “those requests…explicitly authorized by an applicable zoning ordinance or statute.” The court disagreed because the City’s interpretation fails to apply the plain and ordinary meaning of “relating to.” Though considered “broad” by the United States Supreme Court, the City’s interpretation of “relating to” conflicts with the court’s requirement “to give meaning to every word and phrase in a statute.” Additionally, the City’s interpretation adds words of limitation. The association mentioned in the statute is to zoning itself, not zoning specifically authorized by zoning ordinances or statutes. Thus the court held that the City’s interpretation of § 15.99 subd. 2(a) is unreasonable.

For 500’s application for a certificate of appropriateness to qualify “as a written request relating to zoning,” the application must have an association with the regulation of building development and the uses of property. The court concluded there to be such an association. First, the heritage-preservation proceedings are associated with zoning because they are similar to hearings on conditional use permits. A certificate of appropriateness affects specific property rights, without which approval of by the Commission or City Council 500 cannot develop the building into an office. This requirement is typical of a zoning restriction. Second, the historic-preservation-enabling laws recognize an association between heritage preservation and zoning. The Minnesota Historic District Act allows municipalities to establish commissions with “the power to provide special zoning conditions for…historic districts” and to “amend zoning ordinances to encompass…historic districts in zoning legislation.” (Minn. Stat. §138.74) These commissions can also approve “use variances to a zoning ordinance.” (Minn. Stat. § 471.193 subd. 3(6)) These laws point towards a definitive association between historic preservation and zoning.

Finally, the City’s heritage-preservation ordinances identify an association an application for a certificate of appropriateness and zoning. “Before issuing a certificate of appropriateness, the Commission must find that any proposed alteration is ‘consistent with the applicable policies of the comprehensive plan.'” “Zoning ordinances implement the policies and goals of the comprehensive plan.” The president of the planning commission even opposed 500’s application because the proposed development was inconsistent with the City’s comprehensive plan, which further supports that an application for a certificate of appropriateness is “a written request relating to zoning.” Having established this, the City failed to approve or deny 500’s application within 60 days, so the court reversed and remanded the case to order the granting of the certificate of appropriateness.

Burden on city to determine whether feasible alternatives existed to proposed project affecting historic site

by Gary Taylor

Friends of Bethany Place v. City of Topeka
(Kansas Supreme Court, August 23, 2013)

The Grace Episcopal Cathedral and the Episcopal Diocese of Kansas (the Church) applied for a building permit for a parking lot on land it owns in Topeka because – according to a Church representative – the Church is critically short of disabled access space and estimated its true parking needs at 194 stalls.  The land is known as Bethany Place, and is included on the Register of Historic Kansas places.  This designation shields Bethany Place from further development unless the statutory protections with the the Kansas Historic Preservation Act (the Act) are satisfied.  The Church’s cathedral building and current 89-stall parking lot are adjacent to Bethany Place but are not considered part of the historic site.  The site is in a residential neighborhood next to Topeka High School.  The proposed parking lot project would include the removal of several trees, and the laying of hard surface across some of the historic site’s green space.

After investigating the project, the State Historic Preservation Officer (SHPO) wrote to the Topeka Planning Department that the project would damage or destroy the Bethany Place site, and “drastically change the relationship between the two historic buildings on the site with the public street of Polk.”  The SHPO recommended an alternative site design.  The day after receiving the SHPO’s letter, the Planning Department recommended that the City Council deny the building permit “in light of alternative and feasible alternatives that will not encroach upon or damage the listed property.”  The recommendation also cited the Topeka Traffic Engineering Division’s determination that “angled cut-back parking along SW Polk Street adjacent to the property would be a feasible alternative to the Church’s proposal, but notably contained no additional information detailing economic, technical or design issues related to the feasibility of cut-back parking.  The Church asked the SHPO to reconsider his findings, and asked the City Council to issue the permit anyway.  One day before the hearing, the organization “Friends of Bethany Place” (FOB) was formed to oppose the project.

At the hearing The Church submitted a number of supporting documents. The FOB also submitted documents in opposition to the request, including a petition with 95 signatures and a document entitled “alternative parking lot sites” that was an aerial photo of the grounds with notes suggesting alternative sites for parking.  At the conclusion of the lengthy hearing, the City Council unanimously passed the following motion:

I’d like to make a motion to approve the communication to override the recommendation of the [SHPO] and issue the parking lot permit.  I base this on the City Council’s consideration of all relevant factors, that there are no feasible and prudent alternatives of the proposal, and that all possible planning has been undertaken to minimize harm to the historic property.

FOB filed suit the next day.  The city filed a motion to dismiss, arguing that FOB lacked standing.  The district court concluded that FOB had standing, and that the record was insufficient to support the Council’s conclusion that there were no feasible alternatives to the project.  On the City’s appeal of that decision, the Court of Appeals affirmed the district court on the standing issue, but reversed on the permit issuance. FOB appealed.

Standing. The Act provides that “any person aggrieved by the determination of a governing body…may seek [judicial] review….”  The Court concluded that FOB clearly fell within the definition of “person” provided by statute.  As for the term “aggrieved,” the Church and City urged the Court to follow earlier case law interpreting “aggrieved” – as it appeared in another statute – to mean “one whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by the order.”  The Court declined to do so, stating that the Act contemplated a much broader view of “aggrieved.” It cited language in the preamble of the Act making historic preservation “among the highest priorities of government…for the eduction, inspiration, pleasure and enrichment of the citizens of Kansas.”  It also noted that property owners within 500 feet of an historic site – an area within which several FOB members reside – receive special consideration in matters relating to the designation of historic sites.  Finally, it considered important several affidavits submitted by FOB members that stated that their property values would be negatively affected by the project.  In sum, FOB had standing to challenge the Council’s decision.

Decision merits.  According to Kansas caselaw, the ultimate question for the Court is whether the City Council took a “hard look” at all relevant factors, and used plain common sense in its determination as to whether the facts support the decision.  This is to limit the Court’s scope of review to whether decision “represented a clear error of judgment.”  The Court in this case concluded that the Council did not take the required “hard look.”  Under the Act, to allow the project the Council must determine that (1) there were no feasible and prudent alternatives to the proposed parking lot, and (2) the proposal included all possible planning to minimize harm.  It placed the burden on the City – not project opponents – to establish the existence and feasibility of alternatives.  The Court found an absence of technical, design and economic considerations submitted to the Council regarding potential alternatives.  Several alternatives were suggested by opponents to the project, but the Council failed to direct any further investigation into these alternatives.  In all, the record before the Court demonstrated that the Council failed to adequately perform its investigatory role to identify feasible alternatives, and because of this the Court directed that the case be remanded to City council for another hearing after the necessary investigations are conducted and evidence gathered concerning feasible alternatives.


Conflicts in Cincinnati (OH) code concerning designation of historic landmarks construed in favor of property owner

by Kaitlin Heinen

Greenacres Foundation vs. Board of Building Appeals & Zoning Board of Appeals, City of Cincinnati
(Ohio Court of Appeals, October 17, 2012)

Greenacres Foundation is a charity that owns a 22-acre site in Cincinnati. One of the structures on the site (the “Gamble House”) used to be the home of James Gamble, a son of one of the founders of the Proctor & Gamble Company. Greenacres determined that renovation of the house was not economically possible, so it decided to tear it down. On February 18, 2010, Greenacres applied to the City’s director of buildings and inspections for a demolition permit. At the time, the Gamble House property was zoned “SF-10,” single family, without any historic designation. Amit Gosh, the City’s chief building official, found out that there had been prior attempts to save the Gamble House on historic preservation grounds. So Gosh contacted Larry Harris, the City’s urban conservator, for more information. Harris believed that the Gamble House was a “historic structure” with “historic significance” within the meaning of Cincinnati Municipal Code Chapter 1435 and thus could not be demolished without Greenacres obtaining a “Certificate of Appropriateness.” Because Greenacres did not obtain a certificate, the City denied them the demolition permit. Greenacres appealed to the Board of Building Appeals (BBA) and to the Zoning Board of Appeals (ZBA), collectively “the City.” The BBA dismissed the case for lack of jurisdiction, and the ZBA denied Greenacres’ appeal and upheld Harris’ determination of “historic significance.” On appeal, the trial court affirmed the common pleas court’s decision that vacated both the BBA’s and the ZBA’s decisions and remanded the permit application to the City’s director of buildings and inspections, which the City then appealed to the Ohio Court of Appeals.

Cincinnati Municipal Code Chapter 1435, entitled “Historic Landmarks and Districts,” was in effect when Greenacres applied for the demolition permit. Greenacres argued that Chapter 1435 required the city council to pass an ordinance designating a structure as an “historic landmark” before the Chapter could take effect to regulate a structure, and because council had not done so at the time of the application, Greenacres argued it was not required to obtain a certificate. However, the City argued that the zoning code gave the urban conservator authority to determine a structure to be of “historic significance” without any action by the city council, thus requiring the owner to obtain a “Certificate of Appropriateness” prior to demolition. The City claimed that amendments made to the zoning code in 2004 did not require a city council designation before being subject to the zoning code. Before 2004, 1435 provided that a historic structure was “[a]ny improvement to real property which has historic significance and which has been designated as an historic structure pursuant to the provisions of this chapter.” After 2004, a historic structure was defined as “[a]n improvement to real property that has historic significance.” The City argued that since the designation requirement was removed by the 2004 amendments, the urban conservator had the authority to determine the Gamble House to be of “historic significance” and to thus require a “Certificate of Appropriateness.”

The Ohio Court of Appeals did not agree and acknowledged that zoning regulations must be construed in favor of the property owner. Even though the designation requirement was removed in 2004, the code failed to delineate who or what body may determine if a structure is of “historic significance.” The powers of the urban conservator listed in Chapter 1435 prior to 2004 did not include the authority to deem a structure “historic.” When the designation requirement was removed in 2004 it left the code without any delineation of who or what body was empowered to make an historic designation.  Additionally, the 2004 amendment created other conflicts within the code.  The code still requires that a proposed demolition of property must conform to property guidelines before a “Certificate of Appropriateness” be issued, and those “guidelines” were to adopted at the time the city council legislatively designated a historic landmark or district. (1435-11).  Since the court must construe conflicting provisions in favor of the landowner, the Ohio Court of Appeals held that the city council was required to legislatively designate the structure as a “historic landmark” or to be within a “historic  district.” Because the city council had not done so, Greenacres was not required to obtain a “Certificate of Appropriateness” before a demolition permit could be issued.

The City also argued that the common pleas court failed to give enough deference to the decisions of the ZBA and the BBA, which meant that the trial court thus abused its discretion in affirming the common pleas court’s decision. The Ohio Court of Appeals held that this is correct in evidentiary conflicts, but that this case is a question of law, so the argument had no merit.  In addition, the City argued that the trial court incorrectly reversed the ZBA’s decision when it found that the ZBA was without jurisdiction to review a recommendation by the Historic Conservation Board. Amendments to the Cincinnati Municipal Code effective July 20, 2012, address this issue, so the Ohio Court of Appeals held this argument to be moot. In sum, the Ohio Court of Appeals concluded that Greenacres’ application for a demolition permit must be processed according to the law that was in effect at the time it applied for the permit. The trial court’s decision was affirmed.

Scope of property listed on National Register of Historic Places a matter of city council discretion

by Victoria Heldt

Relators v. City of Dundas, Rejoice! Lutheran Church
(Minnesota Court of Appeals, May 7, 2012)

The Church of the Holy Cross, located in the City of Dundas, is listed on the National Register of Historic Places.  It is described by the Minnesota Historical Society as a “gothic church of locally quarried stone built in 1868.”  In 1964 a parish hall was added to the church and in 1998 a handicapped entry was added to the parish hall.  The church was added to the Register in 1982 after the construction of the parish hall addition.  The application for inclusion of the church on the Register included the statement:  ““The parish hall attached to the south side of the vestry was added in 1964; the similarity in materials and scale make it a sympathetic addition to the building.”  The listing of the property in the Register is simply “Church of the Holy Cross (Episcopal).”  Rejoice! Lutheran Church purchased the Church of the Holy Cross in 2010 with plans to build “a worship and office facility while preserving the historic stone sanctuary and adjacent cemetery.”  The additional office, worship, and classroom space totaled just less than 12,000 square feet.

In August 2010 the church applied for a conditional use permit (CUP) in order to move forward with its plan.  It received the permit, but residents raised the question of whether an environmental assessment worksheet (EAW) was necessary to begin the construction.  John McCarthy, the city zoning administrator, determined no EAW was necessary.  A petition was started to request an EAW be completed and garnered 32 signatures.  The Environmental Quality Board (EQB) determined that the city was the appropriate governing body to make a decision regarding the need for an EAW.  McCarthy responded to the EQB that no decision could be made on the matter until the church filed for a building permit, which it did a few months later.

The requirements stating when an EAW is necessary are found within a body of rules pursuant to the Minnesota Environmental Policy Act (MEPA).  The rules state that an EAW is required for the “destruction, in whole or in part, or the moving of a property that is listed on the National Register of Historic Places.”  In preparation for the hearing, members of the City staff prepared a report for the city council concluding that an EAW was not required.   The city council then received input from Jonathan Reppe (attorney for Dundas residents) who asserted that the property listed on the Register included the parish hall, which was to undergo destruction.  He cited Linda Pate, a preservation specialist from the Historic Preservation Office, who shared that view.

The council also heard from John Klockeman, a member of the Rejoice! building-team committee and a licensed architect, who asserted that the project would not result in the destruction of any of the property listed on the Register.  He argued that the only modifications to be made were the removal of the handicapped entrance that was constructed in 1998 and the removal of some limestone from the parish hall to be used elsewhere in construction.  At the hearing, the council determined that no EAW was necessary since the project would not result in any “destruction, in whole or in part, of a property that is listed on the National Register of Historic Places.”

On appeal, the Court was to determine whether the city council’s decision was arbitrary or capricious, made under an erroneous theory of law, or unsupported by the evidence.  It had to decide whether the council “has taken a ‘hard look’ at the salient problems and has genuinely engaged in reasoned decision-making.”  Upon examining the record, the Court noted that the city council did indeed take the required “hard look” at the situation.  It received input from opponents and proponents, received advice from city staff and legal counsel, and heard comments from the public.  The relators argued that the decision was improper as a matter of law because the property is listed on the Register and will undergo partial destruction; however, the Court noted that “relators point to no authority suggesting that the determination of the scope of the property listed on the
Register is a legal determination, much less that the city erred in making that determination.”  Noting again that the scope of judicial review is simply whether the council “engaged in reasoned decision-making” it affirmed the city council’s decision.

Demolition not necessary to correct hazards posed by two historic Detroit structures

by Victoria Heldt

City of Grosse Pointe Park v. Detroit Historic District Commission
(Michigan Court of Appeals, April 19, 2012)

The City of Grosse Pointe Park (the City) wanted to demolish two buildings it owns on East Jefferson Street in Detroit – immediately adjacent to the City – to possibly construct a bus turnaround loop on the property.  One building was built in 1918 and the other in 1920.  In April 2007 the City applied to the Detroit Building Safety and Engineering Department (BS&E Department) for a permit to tear down the buildings, which it received.  Three days later, the BS&E Department issued a “stop work” order.  Since the properties are in a main street overlay area, the Detroit Planning and Development Department needed to sign off on the demolition and construction plans to ensure that it was “consistent with the design standards of the subdivision.”

In May 2007 the Jefferson Avenue Business Association asked the Detroit City council to establish the area as an interim historic district, which it agreed to.  The Historic Designation Advisory Board was ordered to study whether the property qualified for historic-designation status and the Detroit Historic District Commission (DHD commission) was to review the demolition and building permit applications within the scope of the Local Historic Districts Act (LHDA).

During April 2008 the City applied to the DHD commission for permission to demolish the buildings, noting that statue allows demolition where public safety is an issue.  It provided an affidavit from Ronald Supal, a building inspector, in which he stated the properties were “dangerous to human life and public welfare” and recommended they be demolished.  Jack Durbin, a professional engineer, also submitted a report recommending the buildings be razed.  Susan McBride, a staff member of the DHD commission, submitted a report noting that the City had never stated the cost of rehabilitating the building and argued the building should remain due to its historical and architectural value.  She claimed it is “one of the few remaining commercial districts that reflect commercial architecture and suburban development on the east side of Detroit during the 1920’s.”  At a public hearing, the DHD commission denied the application because it did not meet the United States Secretary of Interior’s standards for rehabilitation.

Soon after the hearing, the city council passed an ordinance that established the Jefferson-Chalmers Historic Business District, which included the buildings in question.  In July 2008 the City filed an appeal to the review board challenging the DHD commission’s denial.  It argued that the DHD commission’s decision was arbitrary and capricious since the buildings were only an interim historic district when the application was denied.

In July 2009 the review board affirmed the DHD commission’s denial to demolish.  It noted the level of expertise present in the DHD commission and its authority to decide these matters.  It also found that the opinions the City provided from Supal and Durbin failed to establish that the buildings were a public hazard.  The board took issue with Durbin’s report because it lacked specific facts to support the conclusion.  It further found that the City “failed to establish that demolition was necessary to improve or correct any problematic condition.”  The City appealed in circuit court, which affirmed the review board’s decision.

On appeal, the City claimed that the circuit court misapplied the substantial-evidence test.  The Court disagreed.  It noted that the evidence the City presented was unconvincing.  The pictures provided in Supal’s report showed the deterioration in the buildings was “far less severe than is seen in many buildings which are routinely rehabilitated in Detroit.”  The City argued that buildings needed to be demolished because they did not meet current safety codes.  This claim was not sufficient because code compliance is the most common reason for buildings to be rehabilitated.  It further noted that, even if the buildings were shown to be a hazard to public safety, the City would have needed to prove that the proposed work (demolition) was “necessary to substantially improve or correct” the situation.  The evidence did no such thing.  Rehabilitation, too, could substantially improve or correct the situation. The Court concluded that the review board’s decision to deny the demolition request was reasonable and supported by the evidence.

The City’s last argument was that, according to statute, it was not required to prove the buildings posed an immediate or imminent hazard to the public.  The Court admitted that the words “immediate” and “imminent” are not necessarily contained in the governing statute, but that the specific wording in this case is a minor issue.  The statute clearly provides that an applicant must prove a building is a hazard to the safety of the public.  Additionally, the circuit court did not rule that the building did not constitute an immediate or imminent hazard, but rather that the evidence failed to convince the review board that demolition was necessary.  The Court affirmed the circuit court’s decision.

More new bills introduced

SF 2047 would amend Iowa Code 303.34(3)  to allow a city with an historic preservation commission to appoint one member to the commission who is not a city resident or property owner if that member meets certain professional qualification standards defined by rule by the department of cultural affairs.

HSB 536 would amend Iowa Code 68B.22(4), commonly known as the gift law.  The gift law includes a list of exceptions that makes an otherwise impermissible gift permissible.  Currently, one of the exceptions is for food, beverages,  registration, travel, and lodging for a meeting, which is given  in return for participation in a panel or a speaking engagement at the meeting when the expenses relate directly to the day or days on which the donee has participation or presentation responsibilities. The bill would limit the exception to situations where the public official is an actual speaker, not merely a participant.  The bill would also limit the definition of “entertainment” in another exception so that it does not include “admission to a sporting event, concert, theatrical performance, or other similar type of event or performance….”

SSB 3089 would add a new section to Iowa Code 364.17 that would allow a city to adopt housing code provisions related to sprinkler systems in rental housing. Any such housing code provisions could only apply to newly constructed rental units or substantially renovated rental units. The bill states that “substantially renovated” means renovations that include repairs or improvements to more than 50 percent of the rental unit.

SSB 3090 would create an amendment to Iowa Code 414.1 allowing a city to regulate and restrict the occupancy of residential rental property on the basis of square footage, but disallowing ordinances that regulate the occupancy  of residential rental property based upon the familial or nonfamilial relationships of occupants, presumably in response to the Ames Rental Property Association v. City of Ames (link to summary here) case decided by the Iowa Supreme Court in 2007.

SSB 3091 would rename the Iowa Geological and Water Survey as the Sandrock Center for Land and Water Science.  It would make the director a gubernatorial appointee, rather than an appointee of the director of the DNR as it now stands.  the Sandrock Center is to be located in or near to Iowa City, and the University of Iowa shall cooperate with the director of the center to provide office space and staffing assistance.

Court affirms decision to approve renovation of historic hotel

by Victoria Heldt

Frederic E. Mohs, et al. v. City of Madison
(Wisconsin Court of Appeals, October 27, 2011)

In this case, Mohs, among other landowners, challenged the City of Madison Common Council’s decision to grant a Certificate of Appropriateness to Landmark X.  The Edgewater Hotel, owned by the Faulkner family, was in need of renovation in order to be “economically sustainable.”  Landmark X, a development company, planned to purchase the property for redevelopment.  Since the building was located within an historic district, Landmark X needed a Certificate of Appropriateness from the City’s Landmarks Commission.  The Commission denied the certificate, but the City’s Common Council overruled that decision within its jurisdiction and granted the certificate.  The case went to the circuit court, which affirmed the Council’s decision.

The Court begins its analysis by noting that, in a certiorari review, the appellants (in this case the landowners) have the burden to show whether 1) the governmental body’s decision was within its jurisdiction; 2) the body acted according to law; 3) the decision was arbitrary or oppressive; and 4) the evidence of record substantiates its decision.  The Court found that the landowners failed to meet the burden.  They based most of their argument on the governing ordinance which read:

“The Council may, by favorable vote of two-thirds (2/3) of its members, based on the standards contained in this ordinance, reverse…the decision of the Landmarks Commission if, after balancing the interest of the public in preserving the subject property and the interest of the owner in using it for his or her own purposes, the Council finds that, owing to special conditions pertaining to the specific piece of property, failure to grant the Certificate of Appropriateness…will cause serious hardship for the owner, provided that any self-created hardship shall not be a basis for reversal…”

The Landowners first took issue with the word “owner” that appears within the ordinance.  They argued that since Landmark X did not own the property, it could not experience any hardship from the withholding of a Certificate.  The Court rejected this argument, concluding that the existing condition of the building (which the granting of the Certificate hopes to alleviate) presents a hardship for anyone who owns or intends to own the building.

Next, the landowners turned to the ordinance’s requirement that the governing body balance the public and private interest in the property.  They claimed that the Council failed to address this within their ruling.  Landmark X supported the claim with the ruling in Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of Milwaukee in which the Court reversed a municipality’s decision because it lacked an explanation of reasoning.  Here, the Court found that the Lamar claim was forfeited because it was not preserved in trial court.  The claim appeared for the first time in a reply brief, which is disallowed.  The Court clarified that, even if it had reviewed the Lamar claim, it would have been rejected.  It found that comments made by a Council-member expressed that the renovation would serve both public and private interests in the dilapidated building.  These comments constituted a showing that the Council analyzed the situation in light of both public and private interests.

Under the umbrella claim that the Council failed to make required findings Landmark X made several more arguments, all of which the Court rejected.  They argued that the Council failed to meet the “special condition” requirement of the ordinance.  They interpreted the ordinance to mean that the hardships endured by the owner must be unique and, in this case, the conditions were not specific to Edgewater.  They purported that this situation could be similar to that faced by other building and hotel owners.  The Court rejected this argument due to lack of analysis and support.  In the remainder of the opinion, the Court dismissed three more minor claims due to a lack of support and a failure to present a logical argument.  The trial court’s decision was affirmed.





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