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.

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.

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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