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Home My WebLink About2011-02-07 HPC Workshop PacketHeritage Preservation Commission Workshop Meeting Monday, February 7, 2011 A workshop meeting will begin at 6 p.m., Monday, February 7, 2011 in the Council Chambers at Stillwater City Hall, 216 North Fourth Street, Stillwater MN 55082. The purpose of the workshop will be to review and discuss the City's demolition process. Workshop Agenda 6:00 to 6:15 Is demolition review the best time to save a building? Tools: Demolition Review Design Review Rental Housing Inspections Time of Purchase Inspections Property Maintenance Code Other Tools: 6:15 to 6:25 Recap State Enabling Rules and City Code Section 22 -7 HPC Rules 6:25 to 6:35 Recap current demolition ordinance 6:35 to 6:50 Recap demolition ordinances around the state 6:50 to 6:55 Next Month Time is tight to complete the discussion on the demolition ordinance in three one -hour sessions. To help speed thing along please review the material that was previously sent out before the meeting. Thanks! Memo Community Development Department To: HPC Members From: Michel Pogge, City Planner Date: Friday, January 28, 2011 Re: Workshop: Demolition Ordinance Review Message: As promised, enclosed are a number of items to review before our workshop on Feb 7th at 6 PM on the topic of the City's demolition ordinance Review. I will have an agenda for the workshop in your packet that will go out around February 4th. To help speed the discussions at the workshop please take time to review the material so we can avoid having to review it at the meeting. Some of the material you will find in the binder that was distributed for the March 2010 retreat. Specifically, I ask that you read and review the following items. • State Statue 471.193 Municipal Heritage Preservation. (Enclosed) • Stillwater City Code Section 22 -7 Heritage Preservation Commission (first 8 page of binder section # 2) • Stillwater City Code Chapter 34 Building Demolition (Enclosed - Updated from what is in your binder) • Community Development Department Code Interpretation Memo on Demolition Ordinance (Enclosed) • Review of Certified Local Government HPC demolition ordinance in the State of Minnesota (Enclosed) • Memo from James Hanneman on Demolition Ordinance case law (Enclosed) • Protecting Potential Landmarks Through Demolition Review (Binder Section #10) Thanks! Mike From the desk of... Michel Pogge, AICP • City Planner • City of Stillwater • 216 N. 4th Street • Stillwater, MN 55082 651.430 -8822 Fax: 651.430 -8810 •email: mpogge @ci.stillwater.mn.us 1 MINNESOTA STATUTES 2010 471.193 471.193 MUNICIPAL HERITAGE PRESERVATION. Subdivision 1. Policy. The legislature finds that the historical, architectural, archaeological, engineering, and cultural heritage of this state is among its most important assets. Therefore, the purpose of this section is to authorize local governing bodies to engage in a comprehensive program of historic preservation, and to promote the use and conservation of historic properties for the education, inspiration, pleasure, and enrichment of the citizens of this state. Subd. 2. Heritage preservation commissions. The governing body of a statutory or home rule charter city, county, or town may establish a heritage preservation commission to preserve and promote its historic resources according to this section. Subd. 3. Powers. The powers and duties of any commission established pursuant to this section may include any power possessed by the political subdivision creating the commission, but shall be those delegated or assigned by the ordinance establishing the commission. These powers may include: (1) the survey and designation of districts, sites, buildings, structures, and objects that are of historical, architectural, archaeological, engineering, or cultural significance; (2) the enactment of rules governing construction, alteration, demolition, and use, including the review of building permits, and the adoption of other measures appropriate for the preservation, protection, and perpetuation of designated properties and areas; (3) the acquisition by purchase, gift, or bequest, of a fee or lesser interest, including preservation restrictions, in designated properties and adjacent or associated lands which are important for the preservation and use of the designated properties; (4) requests to the political subdivision to use its power of eminent domain to maintain or preserve designated properties and adjacent or associated lands; (5) the sale or lease of air rights; (6) the granting of use variations to a zoning ordinance; (7) participation in the conduct of land use, urban renewal, and other planning processes undertaken by the political subdivision creating the commission; and (8) the removal of blighting influences, including signs, unsightly structures, and debris, incompatible with the physical well -being of designated properties or areas. No power shall be exercised by a commission which is contrary to state law or denied a political subdivision by its charter or by law. Powers of a commission shall be exercised only in the manner prescribed by ordinance and no action of a commission shall contravene any provision of a municipal zoning or planning ordinance unless expressly authorized by ordinance. Subd. 4. Exclusion. If a commission is established by the city of St. Paul, it shall for the purpose of this section exclude any jurisdiction over the Capitol Area as defined in section 15B.03, subdivision 1. Subd. 5. Commission members. Commission members must be persons with demonstrated interest and expertise in historic preservation and must reside within the political subdivision regulated by the ordinance establishing the commission. Every commission shall include, if available, a member of a county historical society of a county in which the municipality is located. Copyright CCD 2010 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved. 2 MINNESOTA STATUTES 2010 471.193 Subd. 6. Communication with state historic preservation officer. Proposed site designations and design guidelines must be sent to the state historic preservation officer at the Minnesota Historical Society, who shall review and comment on the proposal within 60 days. By October 31 of each year, each commission shall submit an annual report to the state historic preservation officer. The report must summarize the commission's activities, including designations, reviews, and other activities during the previous 12 months. History: 1971 c128s1; 1973c123 art 5s7, 1985c77s1; 1989c9s2; 2003c17s2 Copyright © 2010 by the Office of the Revisor of Statutes, State of Minnesota. All Rights Reserved. Sec. 34 -1. Purpose of chapter. Sec. 34 -2. Definitions. Sec. 34 -3. Permit required. Sec. 34 -4. Procedure. Sec. 34 -5. Demolition plan review. Sec. 34 -6. Emergency demolition. Sec. 34 -7. Injunction. Sec. 34 -8. Violation of chapter. Chapter 34 BUILDING DEMOLITION* *Cross references — Zoning, ch. 31; building code, ch. 33. State law reference — Demolition of buildings on tax- forfeited lands, Minn. Stat. § 282.04. CD34:1 Sec. 34 -1. Purpose of chapter. This chapter is adopted for the purpose of protecting the historic and aesthetic qualities of the city by preserving, rehabilitating or restoring, when reasonable, buildings or structures which constitute or reflect distinctive features of the architectural or historical resources of the city, thereby promoting the public welfare and preserv- ing the cultural heritage of the city. (Ord. No. 814, 12 -5 -95) Sec. 34 -2. Definitions. The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this subdivision, except where the context clearly indicates a different meaning: Buildings or structures of potential historic significance means a building or structure or portion of a building or structure 50 years of age or older. Commission means the heritage preservation commission. Historically significant building or structure means any building or structure or portion of a building or structure on the National Historic Register, a designated local landmark or a con- tributing structure or building in a designated national register historic district. Nonhistoric structure or building means a struc- ture or building less than 50 years old or a noncontributing structure in a nationally or lo- cally designated historic district. (Ord. No. 814, 12 -5 -95) Cross reference — Definitions generally, § 21 -2. Sec. 34 -3. Permit required. No building or structure may be demolished without obtaining a demolition permit. An appli- cation for a demolition permit must be filed with the city building official. (Ord. No. 814, 12 -5 -95) Sec. 34 -4. Procedure. The building official must forward a copy of each demolition permit application to the commu- nity development director for determination of Supp. No. 37 BUILDING DEMOLITION § 34 -5 CD34:3 historic significance or potential significance. The community development director must make the following determination: Subd. 1. The building or structure is histori- cally significant or potentially historically signif- icant; or Subd. 2. The building or structure is not his- torically or potentially historic. If buildings or structures are determined by the community development director to be historic or potentially historic, the application must be sent to the commission for review according to section 34 -5. Buildings or structures determined nonhistoric must be referred to the building offi- cial for issuance of a demolition permit. (Ord. No. 814, 12 -5 -95) Sec. 34 -5. Demolition plan review. Demolition plan review shall be conducted as follows: Subd. 1. Not less than 30 days after the com- munity development director determines that a building or structure is historically significant, the applicant for the permit must submit to the commission 15 copies of a demolition plan which must include the following information: (1) A map showing the location of the build- ing or structure to be demolished on its property and with reference to neighbor- hood properties; (2) A legal description of property and owner of record; (3) Photographs of all building elevations; (4) A description of the building or structure or portion of building or structure to be demolished; (5) The reason for the proposed demolition and data supporting the reason, includ- ing, where applicable, data sufficient to establish any economic justification for demolition; (6) Proposed plans and schedule for reuse of the property on which the building or structure to be demolished is located; § 34 -5 STILLWATER CODE (7) Relation of demolition and future site use to the comprehensive plan and zoning requirements; (8) A description of alternatives to the demo- lition; and (9) Evidence that the building or structure has been advertised for sale for restora- tion or reuse and that sale for restoration or reuse is not economically feasible. Subd. 2. The commission must hold a public hearing according to chapter 31, subdivision 29(9) of this Code on the pending application. After the public hearing and a review of the application information and if the commission determines that the owner has made a reasonable effort to sell or preserve the structure and after finding that there is no available feasible alterna- tive to demolition, the commission must notify the building official in writing that a demolition per- mit may be issued. If a finding is made that the building or structure is historically significant and there is a feasible alternative to demolition, the permit must be denied. (Ord. No. 814, 12 -5 -95) Sec. 34 -6. Emergency demolition. If a historically significant or other significant building or structure poses an immediate threat to health or safety due to its deteriorated condi- tion, the owner of the building or structure may request issuance of an emergency demolition per- mit. If both the community development director and building official find that the condition of the building or structure poses a serious and immi- nent threat to public health and safety and that there is no reasonable alternative to the immedi- ate demolition, the community development direc- tor and building official may issue an emergency demolition permit. (Ord. No. 814, 12 -5 -95) Sec. 34 -7. Injunction. In addition to any other relief provided by this chapter, the city attorney may apply to a court of competent jurisdiction for an injunction to pro- hibit the continuation of any violation of this Supp. No. 37 CD34:4 chapter. This application for relief may include seeking a temporary restraining order, temporary injunction and permanent injunction. (Ord. No. 814, 12 -5 -95) Sec. 34 -8. Violation of chapter. Any person violating any provision of this chapter shall be guilty of a misdemeanor, and a separate offense shall be deemed committed on each day during on which a violation occurs or continues. (Ord. No. 814, 12 -5 -95) Code Interpretation Memo Community Development Department To: Department Policy Manual Re: Demolition Ordinance From: Michel Pogge, City Planner Date: September 1, 2010 Question: Does a "partial demolition" need a demolition permit? If so, does it need to be reviewed by the HPC? Answer: Yes, a "partial demolition" requires a demolition permit. And, if the portion of the structure is more than 50 years old, it needs to be reviewed by the HPC. Analysis: Chapter 34 of the Stillwater Code deals with demolitions. Section 34 -2 defines a Building or structure of potential historic significance as "a building or structure or portion of a building or structure 50 years of age or older." Using this definition, it is the position of the City that the demolition ordinance applies to both the demolition of a total building and to the demolition of only a portion of a building. If the portion of the structure that is proposed to be demolished is 50 years of age or older as a matter of policy it must be the subject of a public hearing before the HPC. What constitutes a partial demolition is not clearly defined in Chapter 24. Therefore as a matter of policy, the following shall apply: Maintenance items are not considered partial demolition. So, for example, replacing siding, windows, or trim is not considered partial demolition. And even such major work as roof replacement would not be considered partial demolition where a similar roof in height, pitch, character is constructed. Additionally, a change in a roof material from a tin roof, for example, to asphalt shingles is NOT considered a demolition. Though removing the majority of the roof trusses would be considered a partial demolition. Removing any portion of a building and replacing it, even when a structure that is dimensionally the same and .follows the same character, would be considered a App partial demolition and subject to Chapter 34. This could include the removal of a porch, section of the home, or other major defining features of a structure. Another example of a partial demolition would include removing a roof along with a half second floor and replacing it with a full second floor. Every situation is different and it is important to use discursion when interpreting the demolition ordinance. 13i1 urnblad, Community Development Director Memo HE 6IR,11 'L,A7 0I td;NNE!,0'4 Community Development Department To: HPC Members From: Michel Pogge, City Planner Date: Friday, January 28, 2011 Re: Message: Review of Certified Local Government HPC demolition ordinance in the State of Minnesota In total, there are 43 CLG HPC's in the State of Minnesota. All but six of the cities have their City Code available on -line. The following pages outlines demolition ordinances of the remaining 56 cities (excludes Stillwater). For all but two of the communities, their demolition ordinance only applies to structures that are either individually designated and /or part of a district. This may be in part due to the language found in State Statue which limits demolition reviews to "designated properties " The two communities with slightly different and expanded processes are Minneapolis and Red Wing. In the City of Minneapolis, their City Code (§ 599.440 -480) requires that all demolition permits be initially reviewed by City Staff and upon finding by staff that a property meets "at least one criteria for designation" the demolition permit is then forwarded to the Commission. The Commission can then elect to recommend that the City Council designate the property and thus block the demolition. Minneapolis City Staff sign off on between 200 -300 demolitions per year without any HPC review. By contrast, a typical year the Minneapolis HPC will block between 2 to 3 demolition requests. State Statue 471.193 Subd 3. (2) From the desk of... Michel Pogge, AICP • City Planner • City of Stillwater 216 N. 4t Street • Stillwater, MN 55082 651.430 -8822 Fax: 651.430 -8810 email: mpogge @ci.stillwater.mn.us The City of Red Wing, in addition to designated properties, requires all properties in their Conservation District to undergo a review. It is important to note that their conservation district focuses on a very small portion of their community covering approximately 162 properties. This leaves hundreds of other properties over 50 years of age unprotected. There are other items seen in demolition ordinances of note. • Chaska and Minneapolis provides an opportunity for the HPC to delay a demolition for 180 days to seek an alternative to demolition. • Eden Prairie has a provision prohibiting demolition by neglect • Hastings specifically prohibits the HPC from reviewing demolition requests for homes over 50 years of age within their Old Hastings Design District. Bottom Line Hands down, no other community in the State of Minnesota has a demolition ordinance that covers as many homes as a percentage of their older housing stock as the City of Stillwater does. Attached: CLG Community Demolition Code Review Select code sections from notable demolition ordinances From the desk of... Michel Pogge, AICP • City Planner • City of Stillwater • 216 N. 4th Street • Stillwater, MN 55082 651.430 -8822 • Fax: 651.430 -8810 • email: mpogge @ci.stillwater.mn.us oa. sagaay Demolition. Destroying a building in whole or in part. •uol ;llouaad Demolition in whole or part. "Demolition" means the razing or destruction, whether entirely or in part, of a resource and includes, but is not limited to, demolition by neglect. Destruction by fire when arson by the owner or the owner's agent is proven shall be considered demolition. Demolish, whole or in part an existing building. Demolition. Full or partial demolition requires review Demolition of any building or structure, in whole or in part 1 CLG Communtiy Demoltion Code Review City Demolition Review Required: Standard Heritage preservation site or village Afton historic site district design review guidelines and U.S. secretary of the interior's standard Proposed demolition or removal of a building or structure. The commission shall consider whether or not the demolition or removal is necessary and its impact on surrounding buildings and neighborhoods. The commission's written finding shall refer to the following criteria: a. Consideration shall be given to the significance or architectural merit of the building itself, in terms of unusual or uncommon design, texture, or materials that could not be reproduced or reproduced only with ,great difficulty or expense, and, if applicable, the contribution the building makes to the historic or architectural character of the district. b. Consideration shall be given to the economic value, usefulness and replacement cost of the building as it now stands and as remodeled or rehabilitated, in comparison to the value or usefulness of any proposed I structures designated to replace the present building or buildings, and to what viable alternatives may exist. c. Consideration shall be given to the present structural integrity of the building to determine whether or not it constitutes a clear and present danger to the life and safety of the public. The commission may contract for Land located with a heritage preservation ;a professional estimate of the structural integrity and an estimate of the cost of correcting dangerous Albert Lea site or district deficiencies, with council approval. A heritage preservation landmark or Carver district in the City limits of Carver I Local design guidelines and Secretary of the Interior's Standards for Rehabilitation Any building, land, area, district or other object previously designated as a heritage Center City , preservation site lin accordance with the program approved by the Secretary of Interior's Standards for Rehabilitation See attached pages , Key items: A historic resource or resource located in ',- Provides a list of considerations. Chaska an historic district - Demo permit may be approved, denied, or delayed for up to 180 days Any property that is designated as a Chatfield Chatfield Heritage Landmark iUnited States Secretary of Interior's Standards for the Treatment of Historic Properties (Comprehensive cultural resource management plan adopted by the city shall be the authoritative guide to Cottage Grove An historic district in the city I reviewing permits in relation to designated historic sites, landmarks and historic districts. Entire HPC Repealed by Ordinance No. Duluth 10044, 8 -16 -2010, § 2. n/a - - -- -- -- - - - - -- - - - - - -- - - - - - -- See attached pages Key item: Eden Prairie Heritage Preservation Sites Prohibits Demolition by disrepair Edina Designated heritage landmark (Compliance with the comprehensive heritage preservation plan. o sapnavl Demolish any building in whole or in part. This does not apply to structures required to be demolished in [ accordance with Minn. Stats. ch. 463. Demolition in whole or in part. This does not apply to structures required to be demolished in accordance with :Minn. Stats. ch. 463, (Building Line !Easements; Building Regulations; and Hazardous Buildings). The Secretary of the Interior's standards for the treatment of historic properties shall be the required basis for permit review decisions. The City may adopt design review guidelines; in the absence of such guidelines, Property designated as a Farmington 'design review decisions will be based upon the current Secretary of the Interior guidelines for preservation, Demolition of an historic building or Farmington heritage landmark 'rehabilitation, restoration and reconstruction. structure. A building or area or district designated for shall adhere to the guidelines established by the Secretary of the Interior's Standard's for Rehabilitation as Fergus Falls heritage preservation in the city amended Destroy a building in whole or in part Destruction, demolition, or removal. Before approving a certificate that involves destruction or removal, in whole or in part, of any site or property within a district or nominated property, the Commission shall make findings that the destruction is necessary to correct an unsafe or dangerous condition on the property, or that there are no reasonable alternatives to the destruction. In determining whether reasonable alternatives exist, the Commission shall consider the integrity of the property and the economic value or usefulness of Hastings designated sites and districts (30.10) the existing structure, including its current use, costs of renovation and feasible alternative uses. demolition The HPC shall have 10 days to visually record a structure after an application is submitted to demolish a Exemptions. The following activities shall ' that is over 50 years old within the OHDS. If a formal designation study has already been be exempt from Original Hastings Design completed for the property, the HPC shall have up to 6 weeks to request that the City Council begin a Hastings Standards: designation process as outlined in ' 30.10(D). If the City Council initiates the designation process, the (Exemption) Demolition of homes !demolition application must be handled in accordance with ' 30.10(0). 'City Demolition Review Required: Standard to a structure on property located within a consideration of the heritage preservation commission's program for preservation and the Secretary of the heritage preservation site overlay zoning ! Interior's standards for rehabilitation, as revised, and, if applicable, the recommendation of the planning Elk River :district commission. Designated heritage preservation site Heritage preservation site means any area, place, building, structure, land, district, or other object which has been duly designated as a heritage preservation site Excelsior :pursuant to section 20 -4. based on the program for preservation of the heritage preservation site r Fariault No review required ( o; sa as '[ o a 0 v. 0 Demolition in whole or in part. This does not apply to structures required to be demolished in accordance with Minnesota Statutes, chapter 463. Demolition in whole or in part. This does not apply to structures required to be demolished in accordance with M.S. Ch. 463, as it may be amended from time to time. Demolition in whole or in part. This does not apply to structures required to be demolished in accordance with Minnesota Statutes, Chapter 463. uolfpowaa "Heritage Preservation Site" shall mean any area, place, building, structure, land, district, or other object which has been duly designated as a Heritage Preservation Site in accordance with Section 1601.03 of this Ordinance. the following parcels are designated as heritage preservation sites: A. 1879 Courthouse /Henderson Community Building B. Poehler residence /Sibley County Historical Society C. Power Plant /City Civil Defense Building Henderson program for preservation of the Heritage Preservation Site In the case of the proposed demolition of a building prior to approval of the demolition, the Commission shall make written findings on the following: architectural and historic merit of the building, the effect on surrounding buildings, the effect of any new proposed construction on the remainder of the building (in case of partial demolition) and on surrounding buildings, the economic value or usefulness of building as it now exists or if altered or modified in comparison with the value or usefulness of any proposed structures designated to replace the present building or buildings. In the case of the proposed demolition of a building prior to the approval of demolition, the Commission shall make written findings on the following: 1. Architectural and historic merit of the building. 2. The effect on surrounding buildings. 3. The effect on any new proposed construction on the remainder of the building (in case of partial demolition) and on surrounding buildings. 4. The economic value or usefulness of the building as it now exists, or if altered or modified, in comparison with the value or usefulness of any proposed structures designated to replace the present building or Litchfield Designated Heritage Preservation Site buildings. Within any heritage preservation landmark in accordance with the adopted heritage preservation guidelines for heritage preservation landmarks or Little Falls or district ;districts or the secretary of the interior's "Standards For Historic Preservation Projects ". o; sallaay Demolish any building, structure, or portion thereof. as 0 r 3 c a u 3 ti All properties proposed to be demolished. Demolish any building, structure, or portion thereof. Demolition of a building in whole or in part. Nothing in this subsection shall apply to or prevent the razing of any building which is in such a dangerous, hazardous or unsafe condition that ist has been ordered demolished by the [building official]. ,l Demolition in whole or part Standard in accordance with the adopted heritage preservation guidelines for each individual heritage preservation landmark or district and the Secretary of the Interior's standards of rehabilitation. Destruction of any property. Before approving a certificate of appropriateness that involves the destruction, in whole or in part, of any landmark, property in an historic district or nominated property under interim protection, the commission shall make findings that the destruction is necessary to correct an unsafe or dangerous condition on the property, or that there are no reasonable alternatives to the destruction. In determining whether reasonable alternatives exist, the commission shall consider, but not be limited to, the significance of the property, the integrity of the property and the economic value or usefulness of the existing structure, including its current use, costs of renovation and feasible alternative uses. The commission may delay a final decision for a reasonable period of time to allow parties interested in preserving the property a reasonable opportunity to act to protect it. Commission decision on nomination. The commission shall review all complete nomination applications. If the commission determines that a nominated property appears to meet at least one (1) of the criteria for designation contained in section 599.210, the commission may direct the planning director to prepare or cause to be prepared a designation study of the property. In cases where an application for demolition is initiated by the property owner, the planning director may determine that the property owner bears the full financial responsibility of conducting the designation study. In all cases, the planning director shall define the scope of services for a designation study, review qualifications of agent conducting study and make a determination of what constitutes a final submission upon completion. See attached pages Key item: Allows staff to refer potential historic potential historic properties to the HPC Minneapolis Staff level review of all properties in the I- HPC reviews and determines if it is a historic resource. If no, permit is issued. If yes, HPC must start process (Additional City before a demolition permit can be to have it designated. If it is ultimately not designated then permit is issued. If designated HPC can still Review) issued. approve demo, deny, delay demo for 180 day, or require mitigation plan. None listed in the code. Historic Neighborhood Conservation Other note: "Every owner or person in possession of a building situated on land in the HNCOD shall keep in Newport Overlay District good repair all of the exterior portions of the building and all of its surrounding areas." (City Demolition Review Required: Within any heritage preservation landmark Mankato or district o3 sallddv Demolition Demolish any building in whole or in part. This does not apply to structures required to be demolished in accordance with Minnesota Statutes, Chapter 463. Demolition of any building or structure, in whole or in part Partial or full demolitions. Review by the Commission shall not be required for the demolition of Buildings or Structures that have been damaged by fire a natural disaster or other similar event and which has been determined to be a total loss by the Planning Director. Any construction, addition, demolition, If it is determined that the permit application will have an adverse relocation or material change effect on the Historic District and /or does not conform to the applicable Design affecting the exterior of a Heritage Review Guidelines, the HPC will notify the applicant in writing of its findings and St Cloud Preservation Property j advise the applicant of their right to appeal to the City Council. I Full demolitions only Demolition; however, this does not ',apply to structures that are the subject of a resolution adopted by the city council requiring the demolition of the structure or that are the subject of an administrative order signed by the mayor requiring emergency demolition in accordance with Chapter 45, Legislative Code of the City of St. Paul or Minnesota Statutes, Chapter 463. City Demolition Review Required: Standard She work to be performed adversely affects the designated historic site or landmark. In determining whether or not there is an adverse effect to the historic site or landmark, the Committee shall consider the following factors: (1) Whether the work will significantly alter the appearance of the building or structure so as to remove the features which distinguish the historic site or landmark as a significant cultural resource; and (2) Whether the use of the property will destroy, disturb or endanger a known or suspected North St Paul a historic district in the city ;archaeological feature site. i Criteria for Heritage Preservation Site Alteration Permit: The City Council shall approve, disapprove, and /or impose conditions on a Heritage Preservation Site alteration Permit after consideration of the Heritage Preservation Commission's program for preservation and the Secretary of the Interior's Standards for Otsego a Heritage Preservation Site in the City ;Rehabilitation, as revised and if applicable, the recommendation of the Planning Commission. properties designated or determined j shall be based on explicit findings which are in accordance with the Secretary of the Interior's Standards for eligible for designation as Heritage the Treatment of Historic Properties and the Plan of Treatment adopted for each individual Pine Island Pine Island Landmarks Heritage Landmark. Required for entire Neighborhood Conservation District and designated Red Wing historic sites ,See attached pages ! In the case of the proposed demolition of a building, prior to approval of said demolition, the commission shall make written findings on the following: Architectural and historical merit of the building, the effect of the demolition on surrounding buildings, the effect of any proposed new construction on the remainder of the building (in case of partial demolition) and on surrounding buildings, and the economic value or a heritage preservation site in the City of usefulness of the building as it now exists or if altered or modified in comparison with the value or usefulness i St Paul Saint Paul of any proposed structures designated to replace the present building or buildings. City Demolition Review Required: ;Standard Applies to a contiguous collection or group of places, buildings, structures, lands or other objects that is determined to be historically, culturally or architecturally significant as a whole and has been locally designated as a Heritage Preservation District or any area, place, building, In the case of the proposed demolition of a building prior to approval of the demolition, the Commission Demolition in whole or in part. This structure, land, work of art or other shall make written findings on the following: architectural and historic merit of the building, the effect on does not apply to structures required to objects having special historical cultural or ' ,surrounding buildings, the effect of any new proposed construction on the remainder of the building (in case be demolished in accordance with architectural interest or value for the of partial demolition) and on surrounding buildings, the economic value or usefulness of the building as it Minnesota Statutes, Chapter 463 community which have been duly now exists, or if altered or modified, in comparison with the value or usefulness of any proposed structures (Building Line easements; Building Taylor Falls designated a Heritage Preservation Site designated to replace the present building or buildings. Regulations; and Hazardous Buildings). Demolition. Demolition in whole or in part. This does not apply to structures required to be demolished in accordance with M.S. Chapter 463. shall be based on explicit findings which are in accordance with the adopted Heritage Preservation within any Heritage Preservation Guidelines for each individual Heritage Preservation Landmark or District and the Secretary of the Interior's Wabasha Landmark or District Standards for Historic Preservation projects. j In the case of the proposed demolition of a building prior to the approval of demolition, the Commission ;shall make written findings on the following: ;(a) Architectural and historic merit of the building. (b) The effect on surrounding buildings. (c) The effect on any new proposed construction on the remainder of the building (in case of partial ,demolition) and on surrounding buildings. 1(d) The economic value or usefulness of the building as it now exists, or if altered or modified, in comparison with the value or usefulness of any proposed structures designated to replace the present Waseca ;building or buildings. 0 a 0 v a 3 c aa c .0 ra o b c cu 0 a. v 0 The Commission shall be guided by the Secretary of the Isnterior Standards for Rehabilitation as well as by local standards or guidelines adopted by the Commission for Heritage Preservation Sites districts and neighborhoods In all cases the Commission shall give consideration to the amount and quality of original material and design remaining in the building when applying criteria guidelines and standards Consideration : shall also be given to clear cases of economic hardship or to deprivation of reasonable use of the owner property. Proposed demolition or removal of a building or structure The Commission shall consider whether or not the :demolition or removal is necessary and its impact on surrounding buildings and neighborhoods The Commission written finding shall refer to the following criteria a. Consideration shall be given to the significance or architectural merit of the building itself in terms of unusual or uncommon design texture or materials that could not be reproduced or reproduced only with great difficulty or expense and if applicable the contribution the building makes to the historic or :architectural character of the district. b. Consideration shall be given to the economic value usefulness and replacement cost of the building as it I now stands and as remodeled or rehabilitated in comparison to the value or usefulness of any proposed structures designated to replace the present building or buildings and to what viable alternatives may exist. :c. Consideration shall be given to the present structural integrity of the building to determine whether or not it constitutes a clear and present danger to the life and safety of the public The Commission may contract for a professional estimate of the structural integrity and an estimate of the cost of correcting dangerous :deficiencies with Council approval. d. Consideration shall be given as to whether or not the demolition is necessary to facilitate a defined public purpose. within a heritage preservation site or :Consideration shall be given as to whether or not the demolition is necessary to facilitate a defined public Winona district ,purpose CHAPTER 599. HERITAGE PRESERVATION REGULATIONS ; e 0 ( `) 599.350. Required findings for certificate of appropriateness. (a) In general. Before approving a certificate of appropriateness, and based upon the evidence presented in each application submitted, the commission shall make findings based upon, but not limited to, the following: (1) The alteration is compatible with and continues to support the criteria of significance and period of significance for which the landmark or historic district was designated. (2) The alteration is compatible with and supports the interior and /or exterior designation in which the property was designated. (3) The alteration is compatible with and will ensure continued integrity of the landmark or historic district for which the district was designated. (4) The alteration will not materially impair the significance and integrity of the landmark, historic district or nominated property under interim protection as evidenced by the consistency of alterations with the applicable design guidelines adopted by the commission. (5) The alteration will not materially impair the significance and integrity of the landmark, historic district or nominated property under interim protection as evidenced by the consistency of alterations with the recommendations contained in The Secretary of the Interior's Standards for the Treatment of Historic Properties. (6) The certificate of appropriateness conforms to all applicable regulations of this preservation ordinance and is consistent with the applicable policies of the comprehensive plan and applicable preservation policies in small area plans adopted by the city council. (b) Destruction of any property. Before approving a certificate of appropriateness that involves the destruction, in whole or in part, of any landmark, property in an historic district or nominated property under interim protection, the commission shall make findings that the destruction is necessary to correct an unsafe or dangerous condition on the property, or that there are no reasonable alternatives to the destruction. In determining whether reasonable alternatives exist, the commission shall consider, but not be limited to, the significance of the property, the integrity of the property and the economic value or usefulness of the existing structure, including its current use, costs of renovation and feasible alternative uses. The commission may delay a final decision for a reasonable period of time to allow parties interested in preserving the property a reasonable opportunity to act to protect it. (c) Adequate consideration of related documents and regulations. Before approving a certificate of appropriateness, and based upon the evidence presented in each application submitted, the commission shall make findings that alterations are proposed in a manner that demonstrates that the applicant has made adequate consideration of the following documents and regulations: (1) The description and statement of significance in the original nomination upon which designation of the landmark or historic district was based. (2) Where applicable, Title 20 of the Minneapolis Code of Ordinances, Zoning Code, Chapter 530, Site Plan Review. (3) The typology of treatments delineated in the Secretary of the Interior's Standards for the Treatment of Historic Properties and the associated guidelines for preserving, rehabilitating, reconstructing, and restoring historic buildings. (d) Additional findings for alterations within historic districts. Before approving a certificate of appropriateness that involves alterations to a property within an historic district, the commission shall make findings based upon, but not limited to, the following: CHAPTER 599. HERITAGE PRESERVATION REGULATIONS (1) The alteration is compatible with and will ensure continued significance and integrity of all contributing properties in the historic district based on the period of significance for which the district was designated. (2) Granting the certificate of appropriateness will be in keeping with the spirit and intent of the ordinance and will not negatively alter the essential character of the historic district. (3) The certificate of appropriateness will not be injurious to the significance and integrity of other resources in the historic district and will not impede the normal and orderly preservation of surrounding resources as allowed by regulations in the preservation ordinance. (2001 -Or -029, § 1, 3 -2 -01; 2009 -Or -023, § 11, 3 -27 -2009) 599.360. Certificate of appropriateness conditions and guarantees. (a) In general. Following commission approval of an application, the applicant shall receive a signed certificate of appropriateness and approved plans stamped by the planning director. The applicant shall produce such certificate of appropriateness and plans to the inspections department before a building permit or demolition permit may be issued. The signed certificate of appropriateness and stamped plans shall be available for inspection on the construction -site together with any inspections department permit. (b) Mitigation plan. The commission may require a mitigation plan as a condition of any approval for demolition or relocation of a landmark, property in an historic district or nominated property under interim protection. Such plan may include the documentation of the property by measured drawings, photographic recording, historical research or other means appropriate to the significance of the property. Such plan also may include the salvage and preservation of specified building materials, architectural details, ornaments, fixtures and similar items for use in restoration elsewhere. (c) Additional conditions and guarantees. The commission may impose such conditions on any certificate of appropriateness and require such guarantees as it deems reasonable and necessary to protect the public interest and to ensure compliance with the standards and purposes of this chapter. (2001 -Or -029, § 1, 3 -2 -01) 599.370. Changes in approved certificate of appropriateness. (a) Minor changes. Minor changes to an approved certificate of appropriateness may be authorized by the planning director where it is determined by the planning director that the changes are not significant and are consistent with the approval made by the commission. (b) Other changes. Changes to an approved certificate of appropriateness other than changes determined by the planning director to be minor shall require amendment to the certificate by the commission. The requirements for application and approval of a certificate amendment shall be the same as the requirements for original approval. (2001 -Or -029, § 1, 3 -2 -01) CHAPTER 599. HERITAGE PRESERVATION REGULATIONS ARTICLE VIII. HISTORIC RESOURCES `44(eAtc)( 3 599.440. Purpose. This article is established to protect historic resources from destruction by providing the planning director with authority to identify historic resources and to review and approve or deny all proposed demolitions of property. (2001 -Or -029, § 1, 3 -2 -01) 599.450. Identification of historic resources. The planning director shall identify properties that are believed to meet at least one of the criteria for designation contained in section 599.210, but that have not been designated. In determining whether a property is an historic resource, the planning director may refer to building permits and other property information regularly maintained by the director of inspections, property inventories prepared by or directed to be prepared by the planning director, observations of the property by the planning director or any other source of information reasonably believed to be relevant to such determination. (2001 -Or -029, § 1, 3 -2 -01) 599.460. Review of demolitions. The planning director shall review all building permit applications that meet the definition for demolition to determine whether the affected property is an historic resource. If the planning director determines that the property is not an historic resource, the building permit shall be approved. If the planning director determines that the property is an historic resource, the building permit shall not be issued without review and approval by the commission following a public hearing as provided in section 599.170. (2001 - O r -029, § 1, 3 -2 -01; 2009-0r-023, § 13, 3 -27 -2009) 599.470. Application for demolition of historic resource. An application for demolition of an historic resource shall be filed on a form approved by the planning director and shall be accompanied by all required supporting information, as specified in section 599.160. (2001- O r -029, § 1, 3 -2 -01) 599.480. Commission decision. (a) In general. If the commission determines that the property is not an historic resource, the commission shall approve the demolition permit. If the commission determines that the property is an historic resource, the commission shall deny the demolition permit and direct the planning director to prepare or cause to be prepared a designation study of the property, as provided in section 599.230, or shall approve the demolition permit as provided in this section. (b) Destruction of historic resource. Before approving the demolition of a property determined to be an historic resource, the commission shall make findings that the demolition is necessary to correct an unsafe or dangerous condition on the property, or that there are no reasonable alternatives to the demolition. In determining whether reasonable alternatives exist, the commission shall consider, but not be limited to, the significance of the property, the integrity of the property and the economic value or usefulness of the existing structure, including its current use, costs of renovation and feasible alternative uses. The commission may delay a final decision for up to one hundred eighty (180) days to allow parties interested in preserving the historic CHAPTER 599. HERITAGE PRESERVATION REGULATIONS resource a reasonable opportunity to act to protect it. (c) Mitigation plan. The commission may require a mitigation plan as a condition of any approval for demolition of an historic resource. Such plan may include the documentation of the property by measured drawings, photographic recording, historical research or other means appropriate to the significance of the property. Such plan also may include the salvage and preservation of specified building materials, architectural details, ornaments, fixtures and similar items for use in restoration elsewhere. (d) Demolition delay. The commission may stay the release of the building, wrecking or demolition permit for up to one hundred eighty (180) days as a condition of approval for a demolition of an historic resource if the resource has been found to contribute to a potential historic district to allow parties interested in preserving the historic resource a reasonable opportunity to act to protect it. The release of the permit may be allowed for emergency exception as required in section 599.50(b). (2001 -Or -029, § 1, 3 -2 -01; 2009 -Or -023, § 14, 3 -27 -2009) Subd. 2. Application Required. 16 -15 S ,�. C /n0 a Certificate of Appropriateness, the Planning Director or designee shall furnish the applicant and the Building Inspector with a copy of recommendations for changes necessary to be made before the Commission will reconsider the application. Said Certificate or recommendations shall be dated as of the date on which the Commission reached its decision on said application and shall be sent to the address of the applicant as shown on the application. Subd. 9. Any individual having a legal interest in property affected by the Commission's decision shall, within 30 days after the date of said decision, have a right to appeal such decision to the Council for review. SECTION 16.05. DESIGN GUIDELINES FOR NEIGHBORHOOD CONSERVATION DISTRICTS. Subd. 1. Definitions. The following terms, as used in this Section, shall have the meanings stated: 1. "Directional Expression of a Building /Structure" — that the structural shape, placement of openings, and architectural details provide for a predominantly vertical, horizontal, or non - directional character to the major elevations of a Building or Structure. 2. "Major Elevation" — those portions of a Building or Structure which are visible from the abutting public streets. 3. "Subordinated or Minor Elevation" — those portions of a Building or Structure which are not major elevations. A. No Certificate of Appropriateness for demolition, Building additions, or new construction for any Building, Structure, or landscape located within a Neighborhood Conservation District shall be issued until such time as the applicant has submitted a design review application to, and said application has been reviewed and approved by, the Commission. No application shall be accepted unless completed in full and accompanied by any additional information as may reasonably be required by the Commission. Review by the Commission shall not be required for the demolition of Buildings or Structures that have been damaged by fire, a natural disaster, or other similar event and which has been determined to be a total loss by the Planning Director, or designee after consultation with the City's Building Official and the property owner. In the case of a proposed demolition requiring a Certificate of Appropriateness, a mandatory 120 -day waiting period from the date the application is accepted shall be in effect before demolition may begin. B. Design review applications shall be on a form prescribed by the Commission, and available from the City Planner or Building Inspector. Review by the Commission shall not be required for accessory structures and garages which have been determined to have no special or unique historic characteristics. The Commission shall conduct surveys in all Neighborhood Conservation Districts for the purpose of identifying and inventorying said special or unique accessory structures and garages. Subd. 3. The Commission shall make findings of fact prior to approving a Certificate of Appropriateness. These findings shall include: A. In the case of proposed demolition of a Building or Structure: i) the architectural and historic merit of the Building /Structure; ii) the effect of demolition on surrounding Buildings and Structures; iii) if a partial demolition, the effect of the proposed demolition on the remainder of the Building /Structure; and iv) the economic value or usefulness of the Building or Structure as it currently exists, compared with the economic value or usefulness of the proposed Building or Structure. B. In the case of additions and new construction, Certificates of Appropriateness for additions to subordinated or minor elevations and new construction of accessory structures and garages shall be issued without review by the Commission. The Commission shall review applications relating to major elevations and new construction of principal Buildings or Structures for compatibility of said addition or new construction with standard characteristics found within the Neighborhood Conservation District. Said standard characteristics shall be established for the following: - Building /Structure height - mass of Building /Structure - volume - scale of adjacent Buildings /Structures - roof lines - site setbacks - proportion of door and window openings - directional expression of Buildings /Structures C. in the case of public improvements, the Commission shall review all plans for curb and gutter, street, or utility reconstruction and comment to the City Council on the effects of said improvements within 30 days of notification of the project. No construction or reconstruction of a public improvement shall commence until said comment has been made to the City Council or 30 days has elapsed since the Commission was notified of the project. Review shall not be required for routine maintenance, 16 -16 repair, or emergency work such as street patching, street overlays, driveway installations, boulevard tree planting, accessibility ramp improvements, utility repairs, sidewalk repair, or sidewalk replacement. Subd. 4. Standards For Issuance. A Certificate of Appropriateness shall not be issued until the Commission determines that the project proposed in the design review application complies with Section16.04, Subdivision 2B. Subd. 5. If no action upon the design review application submitted to the Commission has been taken at the expiration of 60 days from the date the application is accepted, the Certificate of Appropriateness shall be deemed to be issued. Subd. 6. Upon acceptance by the City of a design review application for demolition, signs shall be posted on all proposed demolition sites indicating the following: A. The Building /Structure to be demolished; B. The future plans for the site; C. That a 120 -day waiting period, from the date the application is accepted, is in effect before demolition may begin; and D. The actions taken to mitigate the adverse impacts of demolition. Subd. 7. Upon issuance of a Certificate of Appropriateness, the Planning Director or designee shall furnish the applicant and the Building Inspector with a copy thereof. In the event the Commission denies the issuance of a Certificate of Appropriateness, the Planning Director or designee shall furnish the applicant and the Building Inspector with a copy of recommendations for changes necessary to be made before the Commission will reconsider the application. Said Certificate or recommendations shall be dated as of the date the Commission reached its decision on said application and shall be sent to the address of the applicant as shown on the application. Subd. 8. Any individual having a legal interest in property affected by the Commission's decision pursuant to Subdivision 3 of this Section shall, within 30 days after the date of said decision, have a right to appeal such decision to the Council for review. (CODIFIER'S NOTE: Heritage Preservation Districts appear in Chapter 25.) SECTION 16.06. VIOLATION A MISDEMEANOR. Every person violates a section, subdivision, paragraph or provision of this Chapter when he performs an act thereby prohibited or declared unlawful, or fails to act when such 16 -17 failure is thereby prohibited or declared unlawful, and upon conviction thereof, shall be punished as for a misdemeanor except as otherwise stated in specific provisions hereof. recommendations for changes necessary before the Commission will reconsider the permit application. 7) Minor Classes of Work. Applications and plans for minor classes of work shall be approved by the Planning Director, as delegated by the Commission, when the work is in conformance with the approved guidelines and is on the list of minor classes of work prepared by the Heritage Preservation Commission. Review of minor classes of work is beneficial in expediting the permiting process where appropriate. 8) Limitations. If within 60 days from the filing of a Site Alteration Permit application the Commission has neither approved or denied the Site Alteration Permit application, the plans and permit application shall be deemed to have been approved by the Commission, and if all other requirements of the City have been met, the Building Official shall authorize a permit for the proposed work. By vote of the Commission and notification of the Building Official, the 60 -day period may be extended by 15 days in cases where professional study or recommendation is required and the 60 -day period is not sufficient to do the work. Section 33. Regulation of Demolition and Relocation. 1) Purpose. The demolition or relocation of individual resources or resources within an historic district shall be discouraged. The Commission may, however, after careful consideration of the effect of the move on the resource in question and on the entire historic district, issue a Site Alteration Permit for moving or demolition of a resource. 2) Action by Commission. Upon receiving an application concerning the demolition or relocation of a historic resource or resource located in an historic district, the Commission within sixty (60) days after receipt of the application shall either approve or deny such application, or find that the preservation and protection of historic places and the public interest will best be served by postponing the demolition or alteration for a designated period, which shall not exceed one hundred eighty (180) days from the receipt of the application, and notify the applicant of such postponement. 3) Public hearing. In all applications involving the demolition or relocation of a resource or historic resource, provision shall be made for a public hearing as set forth in this article. 4) Engineer study. In any case involving the demolition or relocation of a resource or historic resource, before granting approval or requiring a postponement, the Commission may call on the City Engineer to provide them with a report on the state of repair and structural stability of the structure under consideration. 5) Alternative undertakings. Within the period of postponement of such demolition of any building, the Commission shall take steps to ascertain what the City Council can or may do to preserve such building, including consultation with private civic groups and interested private citizens and including investigation of the potential use of the power of eminent domain when the preservation of a given building is clearly in the interest of the general welfare of the community and of certain historic and architectural significance. The Commission may also require a reuse study be completed, at the owner's expense, to determine potential reuses of the building proposed to be demolished. Chapter 10.5 Page 9 Heritage Preservation C/r7 or C'u`a/rG" 6) Primary matters considered. The Commission shall use the following primary criteria for review of a Site Alteration Permit for relocating or demolition. At least one of the following requirements must be met in order for the Commission to approve relocating or demolition of a historic resource. a) Retention of the resource constitutes a hazard to public safety that cannot be eliminated by economic means available to the owner, including the sale of the structure on its present site to any purchaser willing to preserve the structure. b) Preservation of the resource is a deterrent to a major improvement program that will be of substantial benefit to the community. c) Retaining the resource will cause an undue and unreasonable financial hardship to the owner, taking into account the financial resources available to the owner including the sale of the structure to any purchaser willing to preserve the building. d) Retaining the resource is not in the interest of the majority of the community. 7) Secondary matters considered. If the primary criteria have been met for a historic resource or if the Commission is reviewing the relocation or demolition of a resource, then the Commission may consider any or all of the following secondary criteria in deciding whether to approve or deny the application: a) The merit of the structure to be demolished. b) The effect of the demolition on the surrounding buildings. c) The effect of the demolition on the historic district as a whole. d) The value or usefulness of the proposed replacement structure to the community, and the appropriateness of its design to the historic district. e) If the lot is to be left open, the impact of open space in that location and on the district as a whole. f) The effect of the demolition on the local economy. g) Whether the demolition will foster civic beauty. h) Whether the demolition will stabilize and improve property values in the district. i) The effect of the demolition on safeguarding the heritage of the City, State, or Nation. j) The effect of the demolition on promotion of the district for the education, pleasure, and welfare of the citizens of the City. Chapter 10.5 Page 10 Heritage Preservation 8) Findings. Before approving any demolition, partial demolition, or relocation, the Commission shall make findings that the request is necessary to correct an unsafe or dangerous condition on the property, is necessary for a major redevelopment that is of substantial benefit to the community, or that there are no reasonable alternatives to the destruction. In determining whether reasonable alternatives exist, the Commission shall consider, but not be limited to, the integrity of the property and the economic value or usefulness of the existing structure, including its current use, costs of renovation and feasible alternative uses. 9) Action by Commission. If the Commission approves the demolition or relocation, it shall direct the Building Official to process the application ten (10) days after Commission approval in order to provide a period of time within which a party may appeal the Commission's decision to the City Council. The Commission may require that the exterior and interior of the historic resource be recorded, at the owner's expense, according to the documentation standards of the Historic American Buildings Survey (NABS). In case of disapproval, the Commission shall state the reasons therefore in a written statement to the applicant and make recommendations in regard to appropriateness of design, arrangement, texture, material, color and the like of the property involved. Section 34. Appeals to the City Council. All decisions of the Heritage Preservation Commission except dcsignations and historic varianccs (amended by Ordinance No. 792 in October of 2006) shall be final subject to appeal to the City Council. Any affected party may initiate appeals by filing the appeal with the Director of Planning. All appeals shall be filed within ten (10) working days of the date of the Commission's order and decision. A copy of the notice of appeal and statement setting forth the grounds for the appeal shall be transmitted to City Council and a copy sent to the Commission. City Council may overturn the Commission's order and decision by a majority vote of all members of the City Council. The Commission, in any written order denying a permit application, shall advise the applicant of the applicant's right to appeal to the City Council and shall include this section in all such orders. Section 35. Public Hearings. Public hearings shall be published in the City's official newspaper at least ten (10) days prior to the date of the hearing, and notice of the hearing shall be mailed at least ten (10) days before the day of the hearing to all owners of record of the property or properties in question and to all owners of property situated wholly or partly within 350 feet of the Heritage Preservation Site. Section 36. Annual Report. The Commission shall submit to City Council an annual report summarizing the work of the Commission during the previous calendar year. This report shall be submitted by October 30 of each year. Chapter 10.5 Page 11 Heritage Preservation c 1 ge-i Fr A ;viz C. Planning Commission Review. The Commission shall advise the Planning Commission of the proposed designation of a Heritage Preservation Site, including boundaries, and a program for the preservation of a Heritage Preservation Site, and secure the Planning Commission's recommendation with respect to the relationship of the proposed heritage preservation designation to the Comprehensive Plan of the City, and the City Planning Commission's opinion as to the effect of the proposed designation upon the surrounding neighborhood and any other planning consideration which may be relevant to the proposed designation. The Commission may make such modifications, changes, and alterations concerning the proposed designation as it deems necessary in consideration of the recommendation and opinion of the Planning Commission. The Planning Commission shall also give its recommendation of approval, rejection or modification of the proposed designation to the Council. D. Communications with State Historical Society. A copy of the Commission's proposed designation of a Heritage Preservation Site, including boundaries, and a program for the preservation of a Heritage Preservation Site, when received by the City, shall be sent to the State Historical Society in accordance with Minnesota Statutes. E. Findings and Recommendations. The Commission shall make findings as to whether a proposed Heritage Preservation Site is eligible for heritage preservation as determined by the criteria specified in Paragraph B of this subdivision. If the Commission determines the site meets the criteria in Paragraph B, it shall forward its findings to the Council with its recommendation that the site be designated for heritage preservation and its proposed program for the preservation of the site. F. Council Designation. The Council shall consider the Commission's recommendation that a site be designated for Heritage Preservation, together with the Planning Commission's recommendations, and may, upon the request of the Commission, by ordinance designate a Heritage Preservation Site. Subd. 4. Amendment or Recession of Designation. A Heritage Preservation Site designation may be amended or rescinded following the same process for the original designation. Subd. 5. Suffix "HP." For purposes solely of identification, a site designated by ordinance as a Heritage Preservation Site may be identified with the suffix "HP" following its underlying zoning classification and any other overlay zoning. Subd. 6. Heritage Site Preservation Plan and Hearings. A. Within such time as is established by the City Council following City Council approval of the Heritage Preservation Site designation, the applicant shall prepare and submit to the Commission for approval a Heritage Site Preservation Plan, which sets forth necessary preservation guidelines, including identification of significant features. B. Hearings. Prior to the Commission recommending to the Council any building, historic district, or object for designation as a Heritage Preservation Site, the Commission shall hold a public hearing on the proposed designation. Prior to such hearing, the Commission shall cause to be published in a newspaper of general circulation notice of the hearing at least ten (10) days prior to the date of the hearing, and notice of the hearing shall be sent to all owners of the property proposed to be designated a Heritage Preservation Site and to all property owners within three hundred fifty (350) feet of the boundary of the area to be designated a Heritage Preservation Site. Subd. 7. Additional Powers and Duties of the Commission. A. The Commission may recommend to the Council after review and comment by the City Planning Commission, that certain property eligible for designation as a Heritage Preservation Site be acquired by gift, negotiation or by eminent domain as provided for in Chapter 117 of the Minnesota Statutes. 11 -31 B. The Commission shall have the powers and duties specified in Chapter 2, Section 2.18 in addition to those otherwise specified in this chapter. Subd. 8. Alterations. A. A Certificate of Appropriateness is required to do any of the following to a Heritage Preservation Site: 1. Remodel, alter, or substantially change the exterior appearance of a historic building, site or landmark. 2. Erect a building or any structure. 3. Erect signs. 4. Move from or to any building. 5. Demolish any building in whole or in part. This does not apply to structures to be demolished in accordance with Minnesota Statutes, Chapter 463. 6. Alter or remove a land form in whole or in part. The application for a Certificate of Appropriateness shall be accompanied by detailed plans including a site plan, building elevations and design details, and materials necessary to evaluate the request. The Council shall make the determination whether to approve or disapprove the permit. B. Commission recommendation. The Commission shall review each application and make its recommendation to the Council relative to the request for a Certificate of Appropriateness. The Commission shall also review and make recommendations to the Council concerning City sponsored construction projects or development projects aided by the City that could change the nature or appearance of a Heritage Preservation Site. C. Criteria for Certificate of Appropriateness. All recommendations by the Commission and decisions by the Council to approve, disapprove, and /or impose conditions on a Certificate of Appropriateness shall be in accordance with the program approved by the Council and the State Historical Society for each Heritage Preservation Site. The following General Standards for Historic Preservation Projects issued by the Secretary of the Interior shall be used to evaluate applications of Certificate of Appropriateness: 1. Every reasonable effort shall be made to provide a compatible use for a property which requires minimal alteration of the building, structure, or site and its environment, or to use a property for its originally intended purpose. 2. The distinguishing original qualities or character of a building, structure or site and its environment shall not be destroyed. The removal or alteration of any historic material or distinctive features should be avoided when possible. 3. All buildings, structures and sites shall be recognized as products of their own time. Alterations that have no historical basis and which seek to create an earlier appearance shall be discouraged. 4. Changes which have taken place in the course of time are evidence of the history and development of a building, structure or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected. 5. Distinctive stylistic features or examples of skilled craftsmanship which characterize a building, structure, or site shall be treated with sensitivity. 11 -32 6. Deteriorated architectural features shall be repaired rather than replaced, whenever possible. In the event replacement is necessary, the new material should match the material being replaced in composition, design, color, texture, and other visual qualities. Repair or replacement of missing architectural features should be based on accurate duplications of features, substantiated by historic, physical, or pictorial evidence rather than on conjectural designs or the availability of different architectural elements from other buildings or structures. 7. The surface cleaning of structures shall be undertaken with the gentlest means possible. Sandblasting and other cleaning methods that will damage historic building materials shall not be undertaken. 8. Every reasonable effort shall be made to protect and preserve archeological resources affected by, or adjacent to, any acquisition, stabilization, preservation, rehabilitation, restoration or reconstruction project. 9. The Commission and the Council shall also consider, when appropriate, the Secretary of the Interior's Specific Standards for Preservation Projects. D. Criteria for Certificate of Appropriateness for Demolition of Historic Preservation Site. In addition to the criteria listed in Subd. 7. C, the following criteria shall also apply to an application for demolition of a Heritage Preservation Site. A Certificate of Appropriateness for the demolition or partial demolition of a historic resource shall not be granted without the review and approval of a completed application. The review shall consider the following: 1. The public's interest in the preservation of the cultural resource. 2. The ability of the cultural resource to reasonably meet the National, State or local criteria for designation as a Heritage Preservation Site. 3. The age of the cultural resource, its significant features, unusual or uncommon design, texture, and/or material and its ability to be reproduced without unreasonable difficulty and /or expense. 4. The ability of the cultural resource to help preserve and protect a historic place or prehistoric site or area of historic interest in the City. 5. The ability of the historic resource to promote the general welfare of the City by: a. encouraging the study of American history, architecture and design; b. by developing an understanding of the importance and value of the American culture and heritage; and c. by making the City a more attractive and desirable place in which to live. 6. The cost and economic feasibility of restoring the cultural resource. E. No owner or any other person shall demolish or undertake to demolish a Heritage Preservation Site without a Certificate of Appropriateness. F. Findings. The Council shall make findings as to whether a Certificate of Appropriateness application should be approved or disapproved, or conditions imposed, as determined by the criteria specified in Paragraphs C and D of this subdivision. 11 -33 G. Hearings. Prior to the Council making its decision regarding an application for a Certificate of Appropriateness for a Heritage Preservation Site, the Council shall hold a public hearing on the application. Prior to such hearing the Council shall cause to be published in a newspaper of general circulation notice of the hearing at least ten (10) days prior to the date of the hearing, and notice of the hearing shall be sent to all owners of the property for which a Heritage Preservation Site Certificate of Appropriateness application has been submitted and to all property owners within three hundred fifty (350) feet of such property. H. Limitations. If within sixty (60) days from the filing of a completed application for a Certificate of Appropriateness for site alteration the Commission has not made a recommendation of approval or disapproval to the Council, the application shall be forwarded to the Council for approval or disapproval of the permit without the Commission's recommendation. Subd. 9. Minor Work. A. Nothing in this section shall be construed to prevent minor work. Minor work does not require a Certificate of Appropriateness. The criteria set forth in Subdivision 8 C shall be followed to the extent practicable. B. Minor work should replace like - with -like, using the same materials and the same construction methods as originally used. Subd. 10. Archaeological Resources and Traditional Cultural Properties. Special Consideration. The City's archaeological resources are part of its heritage and community fabric. These resources are important to the City's past and are irreplaceable and need to be protected from deterioration and site damage. Though considered historic resources under this ordinance, the City acknowledges that archaeological resources have distinct differences. The City shall maintain an inventory of known archaeology sites and potentially sensitive areas. Subd. 11. Demolition A. Except as otherwise provided in this Section, the Building Official shall not issue a permit to demolish a designated Heritage Preservation Site until after a Certificate of Appropriateness is issued. No owner or any other person shall demolish or undertake to demolish a designated Heritage Preservation Site or an element within a designated Heritage Preservation Site without a Certificate of Appropriateness. B. No owner or person with an interest in real property designated as a Heritage Preservation Site shall allow property to fall into a serious state of disrepair without obtaining a Certificate of Appropriateness. Examples of such deterioration include, but are not limited to, the following: 1. Deterioration of exterior walls or other vertical supports. 2. Deterioration of roofs or other horizontal members. 3. Deterioration of exterior chimneys. 4. Deterioration, crumbling or spalling of exterior stucco, masonry or mortar. 5. Lack of waterproofing of exterior walls, roofs, or foundations; including broken windows or doors that prove ineffective. 6. Deterioration of any feature so as to create a hazardous condition that requires the demolition of the Property for public safety purposes. 11 -34 7. Deterioration of ornamental features. Subd. 12. Enforcement. If inspection finds that the work is not in compliance with the Certificate of Appropriateness the City may suspend the Certificate of Appropriateness and issue a "Stop Work Order ". No further work shall be undertaken on the project as long as a "Stop Work Order" is in effect except for work necessary to remedy the cause of the suspension. Subd. 13. Emergency Repair. In emergency situations where immediate temporary repair is needed to protect the safety of the structure and its inhabitants, the Building Department, may approve the temporary repair without prior Commission or Council action. Subd. 14. Repository for Documents. The office of the City Clerk is designated as the repository for at least one copy of all studies, reports, recommendations and programs required under this Section 11.05. Subd. 15. Recording of Heritage Preservation Sites. The office of the City Clerk shall record the designation of buildings, lands or areas as Heritage Preservation Sites with the Hennepin County Recorder or the Hennepin County Registrar of Titles, unless the County Recorder or Registrar of Titles refuses to record such designation, and shall transmit a copy of the recording document to the Building Department. SECTION 11.06. TOWERS AND ANTENNAS. Subd. 1. Purpose. In order to accommodate the communication needs of residents and business while protecting the public health, safety, and general welfare of the community, the Council finds that these regulations are necessary in order to: A. Facilitate the provision of commercial wireless telecommunications services to the residents and businesses of the City; B. Minimize adverse visual effects of towers through careful design and siting standards; C. Avoid potential damage to adjacent properties from tower failure through structural standards and setback requirements; and D. Maximize the use of existing and approved towers and buildings to accommodate new commercial wireless telecommunication antennas in order to reduce the number of towers needed to serve the community. Subd. 2. Prohibition. No tower or antenna shall be erected, constructed, maintained, altered or used unless in compliance with this section. Subd. 3. Towers in Rural and Residential Zoning Districts. Towers shall be allowed in the Rural and Residential Zoning Districts only as follows: A. Towers for amateur radio communication and conforming to all applicable provisions of this Code shall be allowed only in the rear and side yards of rural and residential zoned lots. B. Towers for Commercial Wireless Telecommunications Services and conforming to all applicable provisions of this Code shall be allowed only in the following residentially -zoned locations: 1. Parks, when compatible with the nature of the park; 2. Schools; and 3. Public streets and rights -of -way when attached to, or part of a public utility structure. 11 -35 Source Ordinance No. 27 -97 Effective Date: 6 -13 -97 MEMORANDUM TO: Michael Pogge; Members of the Stillwater Heritage Preservation Commission FROM: James Hanneman RE: Case law governing the scope of demolition ordinances DATE: January 24, 2011 Background As the Stillwater Heritage Preservation Commission ( "the HPC ") considers whether and how to amend Stillwater's demolition ordinance, it would be instructive to review the legal framework within which the ordinance will operate to ensure that what emerges from this review complies with state and federal law. Both Congress and the Minnesota Legislature have identified the preservation of historical properties as an important policy objective.' Minnesota law declares that "the historical, architectural, archaeological, engineering and cultural heritage of this state is among is most important assets. " As such, local governing bodies are authorized "to engage in a comprehensive program of historic preservation. " Designating property of historical significance and enacting rules governing the alteration, demolition and use of designated properties are among the powers the legislature has granted to heritage preservation commissions to prevent the loss of Minnesota's cultural assets. But the authority of the HPC to prevent the destruction of historic resources must be balanced against the rights of individual property owners. Like any other land use controls, historic preservation restrictions must not infringe on the individual liberty guarantees found in the federal and state constitutions. The most relevant of these protections is the prohibition against the taking of private property without just compensation. The decision - making process must also comply with due process and equal protection. Aside from constitutional concerns, an amended demolition ordinance should be crafted in a way that ensures each application is given thorough consideration, that a factual record is created, and that the HPC's decisions are well supported by the factual record. Only then can the HPC's See, e.g., National Historic Preservation Act, 16 U.S.C. §§ 470 -470w (2006); Department of Transportation Act, Section 4(0, 49 U.S.C. § 303(c) (2006); Minnesota Environmental Rights Act, Minn. Stat. Ch. 116B (2010); Minn Stat. § 471.193 (2010). 2 Minn. Stat. § 471.193, subd. 1 (2010). 3 Id. 4 Id. at subd. 3 decisions survive ordinary judicial review. This memo explores the available case law with regard to each of these limitations. I. Takings The Takings Clause of the Fifth Amendment to the United States Constitution provides: "nor shall private property be taken for public use, without just compensation." The Minnesota Constitution also includes a Takings Clause, which provides, "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured. " 5 At their most literal, these provisions limit the purpose for which a government may exercise its eminent domain power and requires that the landowner whose property is subject to condemnation be fairly compensated. But the Takings Clause also proscribes "regulatory takings," which result when a governmental regulation places such a burdensome restriction on a landowner's use of his property that the government has for all intents and purposes "taken" the landowner's property. The debatable issue is exactly how much the regulation must interfere with private property rights before it is deemed a "taking." As Justice Holmes famously wrote, "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. " But a taking results when the government "goes too far in its regulation, so as to unfairly diminish the value of the individual's property, thus causing the individual to bear the burden rightly born by the public." Minnesota courts have adopted the three- factor analysis articulated by the United States Supreme Court in Penn Central Transportation Co. v. City of New York for determining whether a taking has occurred. These factors are (1) "[t]he economic impact of the regulation on the claimant "; (2) "the extent to which the regulation has interfered with distinct investment - backed expectations"; and (3) "the character of the governmental action. " "[T]he Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests. " The Penn Central analysis is particularly appropriate here in the context of historic preservation, because the regulation at issue in Penn Central was a historic property designation. By designating Grand Central Station a historical landmark, the City of New York effectively prevented a developer from building a skyscraper on top of the station. Although this designation prevented the developers from realizing millions of dollars in profits, the Supreme Court rejected the developers' claim that the city's action amounted to a taking. The Court said, "[D]iminution in property value, standing alone, can establish a `taking. "' s MINN. CONST. Art I, § 13. 6 Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922). 7 Westling v. County of Mille Lacs, 581 N.W.2d 815, 823 (Minn.1998). 8 Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978). See State ex rel Powderly v. Erickson, 285 N.W.2d 84, 90 (Minn. 1979) (adopting and applying the Penn Central test to a takings claim for denial of a demolition permit); 9 Penn Central, 438 U.S. at 124. 1° Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 540 (2005). 11 Penn Central, 438 U.S. at 116 -18. 12 Id. at 131. The Court also rejected the developers' argument that because historic designation singled out historic properties for particular financial hardship, the City had "taken" historical properties for the benefit of the rest of the city's property owners. This argument, taken to its logical conclusion, would invalidate all zoning laws as takings, because all zoning regulations distribute burdens and benefits unequally. And the historical designation did not interfere with the present use of Grand Central Station, which was a profitable enterprise. Finally, the Court noted that the presence of historic buildings increases the property value of all properties, including those properties burdened by the regulation. This theory, known as reciprocity of advantage, has been an important factor in takings cases. But although the Penn Central case provides the basic framework for analysis of regulatory takings claims in Minnesota, it is a "flexible" approach. Minnesota courts must also consider the language of the Minnesota Constitution, which has been construed to provide broader protection to property owners than the federal constitution. Whether under the federal or state constitution, a regulatory taking occurs when the government imposes some regulation that "curtails some potential for the use or economic exploitation of private property. " With regard to the first Penn Central factor, the degree of diminution in value, Minnesota courts have applied varying standards depending on the type of case. In the context of a demolition permit, a court might look to whether the governmental regulation left "any reasonable, economically viable use of the property, " or whether it would be economically prohibitive for the property -owner to rehabilitate the property if demolition was denied. The second Penn Central factor considers the investment - backed expectations of the property owner. The "existing and permitted uses of the property when the land was acquired generally constitute the primary expectation of the landowner regarding the property," but this is not conclusive. Thus, property owners who purchased property subject to a restriction on demolition prior to the enactment of the demolition ordinance could claim that they purchased with an expectation of being allowed to demolish. Those who purchase after enactment would not have an investment backed expectation of demolishing the building. Finally, the third Penn Central factor examines the character of the governmental action. This inquiry is focused on the "nature rather than the merit of the governmental action" and assesses whether the burden of the regulation falls on a relatively small group of property owners, who are asked to bear the burden for the benefit of others. A regulation that limits the right of 13 Id. at 134 -35. 14 Wensmann Realty, Inc. v. City of Eagan, 734 N.W.2d 623, 633 (2007). 15 State by Humphrey v. Strom, 493 N.W.2d 554, 558 (Minn.1992) ( "[T]he clear intent of Minnesota law is to fully compensate its citizens for losses related to property rights incurred because of state actions. "). See Minn. Const. Art. I, § 13 ( "Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured." (emphasis added)). 16 lnterstate Companies, Inc. v. City of Bloomington, 790 N.W.2d 409, 414 (Minn. Ct. App. 2010). 17 Wensmann, 734 N.W.2d at 635. 18 State ex rel Powderly v. Erickson, 285 N.W.2d 84, 90 (Minn. 1979). 19 Id. at 637. 20 Id. at 639 (quotation omitted). historic property- owners to demolish homes generally falls on a small group of property owners. But Minnesota courts have focused here more on the distinction between "arbitration regulations, which benefit and apply to the general public, and enterprise regulations, which are enacted for the sole benefit of a governmental enterprise and which benefit the general public but which burden only a few individual landowners. " Historic preservation is not an enterprise regulation, so this concern would seem to be inapplicable. And as the Supreme Court's discussed in Penn Central, there is reciprocity of advantage in historic preservation regulations that increases the value of historic properties. State ex rel Powderly v. Erickson appears to be the only Minnesota case to decide whether the denial of a demolition permit constituted a taking. In that case, a corporation which operated a gas station in Red Wing purchased an adjacent parcel of land on which a series of row houses stood. When the city inspected the row houses and found them to be in violation of building codes, the corporation applied for a demolition permit. After demolition, the corporation intended to use the additional land to expand the number of parking spots available to patrons, which it contended was necessary for the successful operation of its business. The Red Wing Historical Preservation Commission determined that the row houses were historically significant, and denied the demolition permit. In denying the takings claim, the court reasoned that "no evidence was admitted to establish that the value of the property might decrease if Erickson is not allowed to demolish the row houses. " In addition, "[t]here was no evidence that the cost of renovation was so high that Erickson would not be able to obtain a reasonable return on its investment through future rentals. " Other states' courts have also generally upheld denial of demolition permits (and historic property designations) against takings challenges. But there have been exceptions when the denial left no economically feasible renovation option, no reasonable use of the property, or 21 McShane v. City ofFaribault, 292 N.W.2d 253, 258 -59 (Minn 1980). 22 See, e.g., M & NEnters., Inc. v. City of Springfield, 250 N.E.2d 289 (Ill. App. 1969) (upholding denial of rezoning based on value enhancement of being in a historic district around Lincoln's home). 23 State ex rel Powderly v. Erickson, 285 N.W.2d 84, 87 (Minn. 1979). 24 Id. at 90. 25 Id 26 Maher v. City ofNew Orleans, 516 F.2d 1051 (5th Cir. 1975) (upholding ordinance requiring maintenance of historic properties); Figarsky v. Historic District Commission, 368 A.2d 163 (Conn. 1976) (upholding denial of application for certificate of appropriateness for demolition, aesthetics & economics); City of Pittsburgh v. Weinberg, 676 A.2d 207 (Pa. 1996) (cost of renovation would not exceed value after renovation, owner knew of historic designation when bought property and could sell it for profit); Park Home v. City of Williamsport, 680 A.2d 835 (Pa. 1996) (refusal to allow demolition upheld; owners did not consider sale of property as alternative); see also M & NEnters., Inc. v. City of Springfield, 250 N.E.2d 289 (I11. App. 1969) (upholding denial of rezoning based on value enhancement of being in a historic district around Lincoln's home); A -S -P Assocs. V. City of Raleigh, 258 SE2d 444 (N.C. 1979) (declaratory judgment upholds designation of historic district, rationale of revitalization). 27 Lafayette Park Baptist Church v. Scott, 553 S.W.2d 856 (Mo. App. 1977) (Reversing denial of permit to demolish because rehabilitation would be economically unwarranted for the end product); Keeler v. Mayor & City Council, 940 F. Supp. 879 (D. Md. 1996) (taking when no economically feasible rehabilitation plan possible). 28 Lutheran Church in America v. City ofNew York, 316 N.E.2d 305 (1974). when the condition of the building was so dangerous as to override aesthetic and historic concerns. Some demolition ordinances impose a delay in the issuance of a demolition permit rather than outright prohibiting demolition. The purpose of such regulations is to give the community time to respond with a solution, whether it is an offer to purchase or funding for moving or renovating the property, before demolition is commenced. Numerous cases have been brought to challenge interim zoning measures like this, such as building moratoria, on "temporary" takings grounds. However, these cases have rarely been successful. Likewise, ordinary administrative delays inherent in government decisionmaking processes will not give rise to temporary takings claims. Recommendation: To avoid successful takings claims, the HPC has several options. A delay ordinance would almost certainly not create a taking. An ordinance that permits outright denial of a demolition permit would also probably be safe if it included exceptions for: (1) buildings that are economically impractical to renovate, (2) properties that would have no reasonable use absent demolition, and (3) buildings that pose an irreparable hazard to public health and safety. II. Due Process The Fourteenth Amendment to the Constitution says "nor shall any State deprive any person of life, liberty, or property, without due process of law." This provision has been interpreted to grant individuals both procedural and substantive protections. Procedurally, the Due Process Clause guarantees the right to notice of governmental actions that will adversely affect the property owner, and a meaningful right to be heard. Thus, even in extreme cases where a city ordinance or state statute requires automatic approval of a permit, there is no procedural due process violation if the affected property owners were provided with notice of the proceedings given the opportunity to present their concerns before the decisionmaking body. And if there are genuine deficiencies in process, it still is difficult for a 29 Wolk v. Reisen, 413 N.Y.S.2d 60 (App. Div. 1979) (overturned denial of demolition permit because historic house was vacant, vandalized, set on fire, and found to be unsafe and dangerous. Vital interests in health and safety take precedence over aesthetic and historic concerns). 30 Jacobs Ranch, L.L.C. v. Smith, 148 P.3d 842 (Okla. 2006); Sheffield Development Co., Inc. v. City of Glenn Heights, 140 S. W.3d 660 (Tex. 2004); Nolen v. Newtown Tp., 854 A.2d 705 (Pa. Commw. Ct. 2004). 31 See, e.g., Smith v Wolfeboro, 615 A.2d 1252 (N.H. 1992) (erroneous planning board decision on subdivision application did not amount to temporary regulatory taking; sole remedy is appeal of decision, and any decrease in value of property during the pendency of the appeal must be borne by the owner as one of the incidents of ownership.); Wilson v Commonwealth , 597 N.E.2d 43 (Mass. 1992) (destruction of property by natural forces while administrative procedure is following its normal, reasonable course, did not provide basis for regulatory taking claim); McCutchan Estates Corp. v Evansville - Vanderburgh County Airport Authority Dist., 580 NE2d 339 (Ind. App. 1991) (administrative delay of nine months in processing subdivision approvals did not constitute a temporary taking). 32 Northern States Power Co. v. City of Mendota Heights, 646 N.W.2d 919, 927 (Minn. Ct. App. 2002). 33 Id. ( "The affected property owners were given notice of these proceedings and were given many opportunities to be heard. "); Gun Lake Assn v. County ofAitkin, 612 N.W.2d 177, 183 (Minn. Ct. App. 2000) (rejecting procedural due process challenge to application of section 15.99, when township resident and residents' association given adequate opportunity to be heard), review denied (Minn. Sept. 13, 2000); Moghul v. City of Minneapolis, 2007 WL 583163 (Minn. Ct. App. 2007) ( "The record shows that Moghul received timely notice of the hearing before the property owner to challenge a land use action, because the property owner has the burden of proving that the deficiency prejudiced his or her substantial rights. Another procedural due process concern arises if ordinance language is "unconstitutionally vague," because such language fails to put citizens on notice of the potential for adverse action. A statute is void for vagueness if it defines an act in a manner that encourages arbitrary and discriminatory enforcement or if the law is so indefinite that people must guess at its meaning. But the use of general language in a statute does not render it vague, and an entity challenging the constitutionality of a statute on vagueness grounds must show that the ordinance lacks specificity as to the entity's own behavior rather than some hypothetical situation. For instance, the Minnesota Supreme Court has upheld an ordinance that allowed a city council to grant or refuse a license for parking lots without any standards to govern the council's decision, because it was appropriate to vest such discretion with the "board appointed for that purpose. " Substantively, the Due Process Clause prevents a government from taking actions that do not serve legitimate governmental ends, or whose means are not rationally related to legitimate governmental ends. Numerous cases have declared that land use controls and historic preservation are legitimate ends of government because they increase property values, ensure the health and safety of citizens, and improve the aesthetic value of the community. The key issue in substantive due process cases, thus, revolves around whether the government's actions are rationally related to those purposes. Proving a violation of substantive due process in the area of land use is very difficult. For instance, in Northpointe Plaza v. City of Rochester, the Minnesota Supreme Court held that although plaintiff developers proved that the denial of their conditional use permit was arbitrary and irrational, the denial did not constitute a violation of substantive due process. "[I]n the zoning context, [ w]hether government action is arbitrary or capricious within the meaning of the Constitution turns on whether it is so `egregious' and `irrational' that the action exceeds standards of inadvertence and mere errors of law. "' Generally, a government may avoid substantive due process claims by explaining its decisions and explicitly linking them to the permissible goals of land use in detailed findings accompanying to the agency's final decision. Recommendation: In order to avoid due process concerns, a new demolition ordinance should maintain the same procedural provisions for notice and opportunity to be heard that exist in the committee, informing him of his rights to appear before the committee, to review the inspection file before the hearing, to examine and cross- examine witnesses, and to submit evidence to the committee. ") 34 See Minn. Stat. § 14.69 (2006); In re Excess Surplus Status of Blue Cross and Blue Shield of Minnesota, 624 N.W.2d 264, 277 (Minn. 2001); Moghul v. City of Minneapolis, 2007 WL 583163 (Minn. Ct. App. 2007). 35 Humenansky v. Minn. Bd. ofMed. Exam'rs, 525 N.W.2d 559, 564 (Minn App.1994), review denied (Minn. Feb. 14, 1995). 36 Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 -72 (Minn.App.2001). 37 State v. Morrow, 221 N.W. 423, 423 (Minn. 1928). 38 See, e.g., Figarsky v. Historic District Commission, 368 A.2d 163 (Conn. 1976) (upholding denial of application for certificate of appropriateness for demolition, aesthetics & economics); 39 465 N.W.2d 686, 689 (Minn. 1991) 40 Id. (quoting Condor Corp. v. City of Saint Paul, 912 F.2d 215, 220 (8th Cir.1990)). current demolition ordinance. A new ordinance should require the HPC and /or City Council to make findings supporting the denial, delay or issuance of demolition pennits. III.Equal Protection The Fourteenth Amendment also provides, "[n]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws." Minnesota courts have held in multiple cases that "[a] zoning ordinance must operate uniformly on those similarly situated. " Disparate treatment of two similarly- situated property owners may be an indication that the local government is acting unreasonably or arbitrarily. In Northwestern College v. City of Arden Hills, two Christian colleges had applied for permits to expand their facilities. The Arden Hills City Council denied Northwestern College's permit application, alleging that a college was incompatible with an area zoned for residential use. Two months earlier, however, the council had approved a permit for Bethel College, which was also a college building in an area zoned for residential use. "The disparate treatment of Northwestern and Bethel is constitutionally impermissible. " Thus, if the HPC were to enact a discretionary demolition ordinance, an equal protection violation might arise if two property owners with similar buildings facing a similar economic reality were treated differently. But as Coalition for Non - Profit Student Housing v. City of Minneapolis shows, it is rare to find properties that are similarly situated. In that case, a group of University of Minnesota fraternities and sororities challenged the designation of "fraternity row" as a historic district. The group claimed that the designation, by including some fraternity houses but excluding others, was arbitrary and capricious and violated equal protection. But the court distinguished the facts of each house and noted that the city's findings supported its decision of where to draw the line based on an expert report regarding the historical significance of each house. Similarly, the Minnesota Court of Appeals recently turned away an equal protection challenge to the denial of a developer's concept plan in Goerisch v. City of Brooklyn Park. The plaintiff's concept plan did not comply with the city's plan for staged growth, but the city had previously approved other concept plans that sped delivery of city services to new areas. Here again, the court picked apart the details of each concept plan, distinguishing those that had been approved from the plaintiff's. In addition, the city's rationale for denying or approving each plan was consistent with the factual record. Therefore, the plaintiffs property was not similarly situated. 41 Northwestern College v. City of Arden Hills, 281 N.W.2d 865, 869 (Minn. 1979);, accord Hay v. Township of Grow, 206 N.W.2d 19, 23 -24 (Minn. 1973). 42 See Northwestern College, 281 N.W.2d at 868 -69. 43 Id. at 869. 44 2004 WL 2220950 (Minn. Ct. App 2004). 45 2010 WL 2900248 (Minn. Ct. App. 2010). Recommendation: Here again, avoiding an equal protection claim demands that the HPC support its decisions with a clear factual record, and that the HPC be consistent in its application of the standard. IV. Judicial (Appellate) Review Aside from constitutional review, the decisions of the HPC and the City Council are subject to ordinary judicial review to ensure that that the City accurately interprets and follows its own ordinances, and that the decisions are not arbitrary and capricious. Historical preservation designations and the denial or issuance of demolition permits are considered "quasi- judicial" actions. Labeling these actions "quasi-judicial" has important consequences for the nature of judicial review. First, the standard for review of quasi-judicial decisions is whether it was "unreasonable, arbitrary, or capricious. " This review focuses on the legal sufficiency of and factual basis for the reasons given. As a related matter, this means that the district court sitting in review of the HPC and City's actions would act as an appellate court, not as a trial court. Thus, the district court—and other appellate courts to which the case would be appealed thereafter —would not take testimony or develop its own factual record. The only record before the trial court would be that made at HPC and City Council meetings. Therefore, it becomes crucial in such a review that the HPC and City Council has made detailed findings supporting its decisions with reference to the provisions of the ordinance it is applying. In fact, if the HPC or the City fails to make adequate findings, the court reverses the burden of proof. As the Minnesota Supreme Court said in a 2003 case, "[W]hich party bears the burden of proof will depend on whether the City stated reasons for its decision -if the City gave contemporaneous reasons, [the plaintiff] bears the burden of proof, and if not, the City must prove it did not act unreasonably, arbitrarily, or capriciously. Recommendation: Here again, the HPC and /or City Council should make detailed findings of fact and supporting its decisions with reference to the provisions of the ordinance it is applying. Which body makes the findings of fact will depend on where the factual record is developed and who has the authority to make decisions or recommendations. 46 Soo Line R. Co. v. City of Minneapolis, 625 N.W. 2d 834, 836 (Minn. Ct. App. 2001) ( "The city's historical - preservation- designation proceedings are quasi - judicial in nature and reviewable by this court on a writ of certiorari." (citing Handicraft Block Ltd. P'ship v. City of Minneapolis, 611 N.W.2d 16, 24 (Minn.2000)); Minnesota Center for Environmental Advocacy v. Metropolitan Council, 587 N.W.2d 838 (Minn. 1999) (identifying the factors that indicate quasi - judicial proceedings as "(1) investigation into a disputed claim and weighing of evidentiary facts; (2) application of those facts to a prescribed standard; and (3) a binding decision regarding the disputed claim. "). 47 Carl Bolander Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn.1993). 48 Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn.1988). 49 Billy Graham Evangelistic Ass 'n v. City of Minneapolis, 667 N.W.2d 117, 123 (Minn. 2003) (citing Zylka v. City of Crystal, 283 Minn. 192, 198 -99, 167 N.W.2d 45, 50 -51 (1969)). Limo O CO 0 —J r c 0 z I1®i II nib MN 11 P 1 :0 1 11 •■` �� {.� �!' re 11i ■■ � _ iu ■_ . ■iii - - ICJ ■Z' aim NZ' �■ �i i= 463 - BUILDINGS; EASEMENTS, REGULATIONS, HAZARDS, 2010 Minnesota Statutes 463.15 DEFINITIONS. HAZARDOUS AND SUBSTANDARD BUILDINGS Subdivision 1. Coverage. For purposes of sections 463.15 to 463.26 the terms defined in this section have the meanings given them. Subd. 2. Building. "Building" includes any structure or part of a structure. Subd. 3. Hazardous building or hazardous property. "Hazardous building or hazardous property" means any building or property, which because of inadequate maintenance, dilapidation, physical damage, unsanitary condition, or abandonment, constitutes a fire hazard or a hazard to public safety or health. Subd. 3a. Municipality. "Municipality" means a county, city, or town. Subd. 4. Owner, owner of record, and lienholder of record. "Owner," "owner of record," and "lienholder of record" means a person having a right or interest in property described in subdivision 3 and evidence of which is recorded in the office of the county recorder or registrar of titles in the county in which the property is situated. History: 1965 c 393 s 1; 1967 c 324 s 1; 1976 c 181 s 2; 1989 c 328 art 6 s 5,6; 2004 c 147 s 1; 2005 c 4 s 113 463.151 REMOVAL BY MUNICIPALITY; CONSENT; COST. The governing body of any municipality may remove or raze any hazardous building or remove or correct any hazardous condition of real estate upon obtaining the consent in writing of all owners of record, occupying tenants, and all lienholders of record; the cost shall be charged against the real estate as provided in section 463.21, except the governing body may provide that the cost so assessed may be paid in not to exceed five equal annual installments with interest thereon, at eight percent per annum. History: 1967 c 324 s 2; 1974 c 341 s 1; 2004 c 147 s 2 463.152 EXERCISE OF EMINENT DOMAIN. Subdivision 1. Purpose, public interest. In order to maintain a sufficient supply of adequate, safe, and sanitary housing and buildings used for living, commercial, industrial, or other purposes or any combination of purposes, it is found that the public interest requires that municipalities be authorized to acquire buildings, real estate on which buildings are located, or vacant or undeveloped real estate which are found to be hazardous within the meaning of section 463.15, subdivision 3, and the acquisition of such buildings and real estate is hereby declared to be a public purpose. Subd. 2. Acquisition; procedure. In furtherance of the public policy declared in subdivision 1, the governing body of any municipality may acquire any hazardous building, real estate on which any such building is located, or vacant or undeveloped real estate by eminent domain in the manner provided by chapter 117. History: 1974 c 341 s 3; 1976 c 2 s 140; 2004 c 147 s 3 463.16 REPAIR OR REMOVE HAZARDOUS PROPERTY CONDITION. T1 rxnvArninn lxn lv of onx, mnnioinalitx, mov nrrtcssr nxxmAr of nnx, lno,orrinnc �ni� lin r nr nrnnnrtx, 463 - BUILDINGS; EASEMENTS, REGULATIONS, HAZARDS, 2010 Minnesota Statutes or modify the order and enter judgment accordingly, fixing a time after which the governing body may proceed with the enforcement of the order. The court administrator shall cause a copy of the judgment to be mailed forthwith to persons upon whom the original order was served. History: 1965 c 393 s 5; 1Sp1986 c 3 art 1 s 82 463.20 CONTESTED CASES. If an answer is filed and served as provided in section 463.18, further proceedings in the action shall be governed by the Rules of Civil Procedure for the District Courts, except that the action has priority over all pending civil actions and shall be tried forthwith. If the order is sustained following the trial, the court shall enter judgment and shall fix a time after which the building must be destroyed or repaired or the hazardous condition removed or corrected, as the case may be, in compliance with the order as originally filed or modified by the court. If the order is not sustained, it shall be annulled and set aside. The court administrator of the court shall cause a copy of the judgment to be mailed forthwith to the persons upon whom the original order was served. History: 1965 c 393 s 6; 1Sp1986 c 3 art 1 s 82; 1989 c 328 art 6 s 10 463.21 ENFORCEMENT OF JUDGMENT. If a judgment is not complied with in the time prescribed, the governing body may cause the building to be repaired, razed, or removed or the hazardous condition to be removed or corrected as set forth in the judgment, or acquire the building, if any, and real estate on which the building or hazardous condition is located by eminent domain as provided in section 463.152. The cost of the repairs, razing, correction, or removal may be: a lien against the real estate on which the building is located or the hazardous condition exists, or recovered by obtaining a judgment against the owner of the real estate on which the building is located or the hazardous condition exists. A lien may be levied and collected only as a special assessment in the manner provided by Minnesota Statutes 1961, sections 429.061 to 429.081, but the assessment is payable in a single installment. When the building is razed or removed by the municipality, the governing body may sell the salvage and valuable materials at public auction upon three days' posted notice. History: 1965 c 393 s 7; 1974 c 341 s 4; 1989 c 328 art 3 s 3 463.22 STATEMENT OF MONEYS RECEIVED. The municipality shall keep an accurate account of the expenses incurred in carrying out the order and of all other expenses theretofore incurred in connection with its enforcement, including specifically, but not exclusively, filing fees, service fees, publication fees, attorney's fees, appraisers' fees, witness fees, including expert witness fees, and traveling expenses incurred by the municipality from the time the order was originally made, and shall credit thereon the amount, if any, received from the sale of the salvage, or building or structure, and shall report its action under the order, with a statement of moneys received and expenses incurred to the court for approval and allowance. Thereupon the court shall examine, correct, if necessary, and allow the expense account, and, if the amount received from the sale of the salvage, or of the building or structure, does not equal or exceed the amount of expenses as allowed, the court shall by its judgment certify the deficiency in the amount so allowed to the municipal clerk for collection. The owner or other party in interest shall pay the same, without penalty added thereon, and in default of payment by October 1, the clerk shall certify the amount of the expense to the county auditor for entry on the tax lists of the county as a special charge against the 463 BUILDINGS; EASEMENTS, REGULATIONS, HAZARDS, 2010 Minnesota Statutes 463.251 SECURING VACANT BUILDINGS. Subdivision 1. Definitions. The following terms have the meanings given them for the purposes of this section. (a) "City" means a statutory or home rule charter city. (b) "Neighborhood association" means an organization recognized by the city as representing a neighborhood within the city. (c) "Secure" may include, but is not limited to, installing locks, repairing windows and doors, boarding windows and doors, posting "no- trespassing" signs, installing exterior lighting or motion - detecting lights, fencing the property, and installing a monitored alarm or other security system. Subd. 2. Order; notice. (a) If in any city a building becomes vacant or unoccupied and is deemed hazardous due to the fact that the building is open to trespass and has not been secured and the building could be made safe by securing the building, the governing body may order the building secured and shall cause notice of the order to be served upon the owner of record of the premises or the owner's agent, the taxpayer identified in the property tax records for that parcel, the holder of the mortgage or sheriffs certificate, and any neighborhood association for the neighborhood in which the building is located that has requested notice, by delivering or mailing a copy to the owner or agent, the identified taxpayer, the holder of the mortgage or sheriffs certificate, and the neighborhood association, at the last known address. Service by mail is complete upon mailing. (b) The notice under this subdivision must include a statement that: (1) informs the owner and the holder of any mortgage or sheriffs certificate of the requirements of subdivision 3 and that costs may be assessed against the property if the person does not secure the building; (2) informs the owner and the holder of any mortgage or sheriff's certificate that the person may request a hearing before the governing body challenging the governing body's determination that the property is vacant or unoccupied and hazardous; and (3) notifies the holder of any sheriffs certificate of the holder's duty under section 582.031, subdivision 1, paragraph (b), to enter the premises to protect the premises from waste and trespass if the order is not challenged or set aside and there is prima facie evidence of abandonment of the property as described in section 582.032, subdivision 7. Subd. 3. Securing building by city; lien. If the owner of the building or a holder of the sheriffs certificate of sale fails to either comply or provide to the governing body a reasonable plan and schedule to comply with an order issued under subdivision 2 or to request a hearing on the order within six days after the order is served, the governing body shall cause the building to be properly secured and the cost of securing the building may be charged against the real estate as provided in section 463.21. In the metropolitan area, as defined in section 473.121, subdivision 2, the governing body may work with neighborhood associations to develop and implement plans to secure vacant buildings in a timely and cost - effective fashion. The city may use rehabilitation and revitalization funds in implementing this section. Subd. 4. Emergency securing. A city may provide by ordinance for emergency securing of a building that presents an immediate danger to the health and safety of persons in the community. 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CO d' LO N CO N : O CO CO n N O 0) CO N co U Q) N O M CD V) N V• N M M CO O O r LO N n V' N U) n O CD V' n N V' N n 't lY rn E Cn V' O n CO n O_ M U) M M CO CO O O CD CO N CO n N (A N n CO V' D) 0) (D co r t: Q (n rn J 0 0 0 M: 0 M V CO COD CO CO O L W M M 00 C M M W CO M M (O M V COO 0 ( 0 M M LL t L O M M M M M M M O•) M M M C'•) : M M m M M co M co M M M M M M M M M M M M W 1/21/2011 319 Churchill Street W, Stillwater, MN 55082 -5764 E IN oNve W Oak St _. 4 Property Full Report, Single Family Residential, MLS #: 3999565 Status: Active List Price: $89,500 119 02010 Mimod Corp ®2008 NAV Year Built: 1864 Bedrooms: 3 Total Baths: 2 Garage: 4 Acres: 0.21 Lot Size: 75x120 Fire #: MLS Area: 727 - Stillwater /Bayport Style: (SF) One 112 Stories Const Status: Previously Owned Foundation Size: 1,634 Above Ground Finished SgFt: 1,634 Below Ground Finished SgFt: 0 Total Finished SgFt: 1,634 List Date: 12120110 Received By MLS: 12/21/10 Days On Market: 32 I si Original List Price: $112,000 _._ Map Page: 97 Map Coord: A2 Directions: Hwy 36 - N. on Greeley - Churchill, E. to 6th St. House on SE 4. comer of 6th & Churchill TAX INFORMATION Property ID: 3303020120139 Tax Year: 2009 Tax Amt: $2,088 Assess BaL $920 Tax w /assess: $3,008 Assess Pend: Unknown Homestead: Yes General Property Information Legal Description: Lots 26,27 & 28 011 exc the East 60' Churchill Nelson & Slaughters Add County: Washington School District: 834 - Stillwater, 651- 351 -8340 Complex/Dev /Sub: Common Wall: No Restrictions /Covts Lot Description: Corner Lot, Tree Coverage - Light Road Frontage: City, Paved Streets, Curbs, Sidewalks Zoning: Residential - Single Accessibility: None Remarks Agent Remarks: HUD acquired, sold as is, simultaneous offers due daily, all purchasers. See www.best- assets.com for procedures, no appt needed, use 1 of 5 HUD keys, agent to verify all info & measurements. "As is" value is FHA appraised value. Public Remarks: Huge two story with wrap around porch, central air, hardwood floors, main floor laundry, two main floor bedrooms, 2 baths, 1634 finished square feet, oversized double garage. Structure Information Level Room Level Dimen Living Rm Main 18x13 Dining Rm Main 15x12 Family Rm Office Main Kitchen Main 20x11 Bedroom 1 Main 13x9 Bedroom 2 Main 11x11 Bedroom 3 Upper 18x13 Bedroom 4 Other Rooms Level Dimen Heat: Forced Air Laundry Main 10x6 Fuel: Natural Gas Office Upper 9x7 Air Cnd: Central Office Main 13x5 Water: City Water /Connected Sewer: City Sewer /Connected Garage Stalls: 4 Garage Stall #: Other Parking: Bathrooms Total: 2 Full: 1 3/4:0 1/2:1 1/4:0 Pool: Bath Description: Main Floor Full Bath, Upper Level Bath Dining Room Desc: Separate /Formal Dining Room, Eat In Kitchen Family Room Char: Fireplaces: 0 Fireplace Characteristics: Appliances: Basement: full Information Deemed Reliable But Not Guaranteed. 0 2011 Regional MLS of Minn., Inc. All Rights Reserved. Page 1 of 4 1/21/2011 R Property Full Report, Single Family Residential, MLS #: 3999565 319 Churchill Street W, Stillwater, MN 55082 -5764 WASH - Washington County Tax Report 319 Churchill St W, Stillwater, MN 55082 -5764 PID #: 3303020120139 PL AT Propertv Tvpe: Residential Tax Year: 2010 General Propertv Information Subdivision (Addition): CHURCHILL NELSON SLAUGHTER Lot/Block: 026/011 Postal City: Parcel Size: School District: 834 - Stillwater Hmstd Code: Homestead Cnty Prop Type Code: 100 Year Built: 1864 Acres: 0.20 Legal Description: SubdivisionName CHURCHILL NELSON SLAUGHTER ADD Block 11 SubdivisionCd 09305 LOTS 26 27 & 28 011 EXC Owner /Taxpaver Information Owner Name & Address: Secretary of Hsg & Urban Dev 501 Marquette Ave # 1200, Minneapolis, MN 55402 Taxpayer Name & Address: Secretary of Hsg & Urban Dev 501 Marquette Ave # 1200, Minneapolis, MN 55402 Market Values /Taxes /Subrecord Market Values Taxes Land: $95,600 Base Tax: $2,129.76 Building: $112,900 Assess Amt: $724.24 Total: $208,500 Tax w/ Asmnt: $2,854.00 Sales Information Most Recent Sale Date: 05/2112004 Most Recent Sale Price: Detailed Dwelling Characteristics Subrecord Status Watershed: Delinquent Status: Green Acres /G.A. SgFt: 0.00 /0.00 $186,500 Most Recent Sale Code: W - Warranty Deed Gross Bldg SgFt: 0 Building Style: 1 1/2 Story Tot Beds /Baths: 3/1.00 Livable SgFt: 1,487 No. of Stories: 1.5 Fam /Livng Rm: 1st Floor SgFt: Building Shape: Dining /Oth Rm: 2nd Floor SgFt: Bldg Condition: Window Kitchen: Basement SgFt: Bldg Const: Fireplaces: Garage SgFt: 864 Garage Type /Cap: Detached /0 Heat: Deck SgFt: 0 Roof Type /Cover: Hip /Gable /Asphalt Air Cond: Porch SgFt: 295 Exterior Walls: Wood Total Rooms: Pool /Pool SgFt: N/0 Interior Walls: Plaster Lot Zoning: R Foundation Size: 0 Lot Size: Room Locations Room Type Bsmt Fir 1 Flr 2 Fir 3 Bedrooms: Family Rm: Living Rm: Room Type Bsmt Fir 1 Fir 2 Fir 3 Baths Full: Baths 3/4: Baths 1/2: Room Type Bsmt Flr 1 Flr 2 Flr 3 Kitchen: Fireplace: Other Rm: Information Deemed Reliable But Not Guaranteed. 0 2011 Regional MLS of Minn., Inc. All Rights Reserved. Page 4 of 4