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HomeMy WebLinkAbout2869 Review of Applications for Demolition of Historic Buildings Ordinance No. 2869 AN ORDINANCE OF THE CITY OF PORT TOWNSEND AMENDING THE PORT TOWNSEND MUNICIPAL CODE CHAPTER 17.30, HISTORIC OVERLAY DISTRICT - DESIGN REVIEW, SECTION 17.30.085, DEMOLITION STANDARDS TO PROVIDE ADDED REVIEW BEFORE DEMOLITION OF AN HISTORIC STRUCTURE OCCURS WHEREAS, the City Council held a public hearing on May 11, 2004 concerning proposed revisions to the City's historic preservation code; and WHEREAS, the City Council adopted Ordinance 2859 on June 2, 2004 merging two existing chapters of the Port Townsend Municipal Code into one chapter; and WHEREAS, current code allows demolition of an historic structure so long as the replacement building is built according to design guidelines. WHEREAS, heightened review before demolition of historic buildings occurs is consistent with and implements, in part, the City comprehensive plan, Land Use Policy 15.4, which provides: "Establish historic preservation guidelines in the zoning ordinance to govern demolition of historic structures and walls more than 50 years old. Ensure that the guidelines include a map and inventory which identifies aU significant historic structures in Port Townsend." WHEREAS, heightened review is important to prevent the loss of significant historic buildings, where rehabilitation is feasible and doing so does not deprive the owner of reasonable economic return. WHEREAS, heightened review preserves the architectural and historic fabric of the City is , as well as contributing to economic development. "The National Trust, particularly through National Main Street Center, has demonstrated in hundreds of communities that downtown revitalization within the context of historic reservation can be an extremely successful (and profitable) process of economic development." ("Information," Information Series No. 53, 1991.) WHEREAS, a decision that denies demolition because economicaUy feasible uses exist is not a "taking." The fact that regulations may impose costs, or prevent an owner from obtaining the highest return (for example, by preventing demolition) does not constitute a taking. "Mere regulation on the use of land has never constituted a 'taking' or a violation of due process under federal or state law." Presbytery v. King County, 114 Wn. 2nd 320 (1990). Only if no economically viable return is available does a "taking" occur. Under the ordinance, demolition must be allowed if no economically viable return is available, and therefore no taking occurs. In Buttnick v. Seattle, 105 Wn. 2nd 857 (1986), the Washington Supreme Court stated Seattle's preservation ordinance which required a building owner conducting repairs to replace a Page 1 Ordinance 2869 "parapet" in a manner approximating the original design, even though more costly to the owner, was. The building owner claimed that this resulted in an unconstitutional taking of his property. The state Supreme Court ruled that the estimated cost of replacing the parapet would not be an undue hardship on the building owner, considering the fair marker value and income producing potential of the building. The court rejected the owner's claim. Citing the United States Supreme Court in Penn Cent. Transp. Co. v. New York, 438 US. 104 (1978), the Washington court stated: "The [US. Supreme] Court went on to observe it is 'not in dispute' that 'States and cities may enact land use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city'." WHEREAS, the Planning Commission, Historic Preservation Committee, and Citizens Task Force appointed by the Council, recommended that the City provide additional review before demolition of an historic structure occurs; and WHEREAS, this ordinance follows provisions in other cities who, like Port Townsend, call themselves Victoria Seaports (Eureka CA, Fernandina Beach FL, Galveston TX), and other cities (including La Conner, W A) to provide the owner proposing demolition must justify the demolition on the basis that is necessary from a safety or economic standpoint. NOW, THEREFORE, the City Council of the City of Port Townsend ordains as follows: SECTION 1. Amendment. Chapter 17.30, Historic Overlay District - Design Review, Section 17.30.020, Applicability - Exemptions, of the Port Townsend Municipal Code is hereby amended to read as follows (double underline is new): 17.30.020 Applicability - Exemptions. A. General applicability. This chapter establishes a mandatory design review process and criteria for certain types of development and municipal improvements within the historic overlay district, as described in section 17.30.040, including those subdistricts that lie within the boundaries of the historic overlay district. Any development or municipal improvement subject to review under this chapter shall be completed in full conformance with all design requirements and conditions set forth in the certificate of approval issued by the director, following review and consideration of the Historic Preservation Committee's (HPC) recommendations. The certificate of approval shall constitute a Type I-A development permit under Chapter 20.01 PTMC, and shall be construed as a component of all final land use permits issued by the city. Any additional development permit shall be issued subject to, and conditioned upon, full compliance with the certificate of approval. B. Specific applicability. The requirements of this chapter shall apply to any development or municipal improvement that: 1. Involves partial or complete demolition (as defined in 17.3_0.085(A)), changing, altering, modifying, remodeling, relocating, removing or significantly affecting a property listed on the Port Townsend Register of Historic Places that lies outside the historic overlay district; Page 2 Ordinance 2869 2. Involves partial or complete demolition (as defined inJ 7 .30.085'(All, any exterior changes, alterations, modifications, remodeling, relocating, or removal of exterior features that would significantly affect any building or structure located within the C-II, C-III, M-II(B), P/OS, P/OS(B), and P-I zoning districts of the historic overlay district. Exterior changes includes the application of exterior paint or the installation of exterior mechanical system elements, subject to any administrative review provisions of the Port Townsend Historic Preservation Standards Manual, as described in 17.30.160; 3. Is located within the R-II zoning districts of the historic overlay district and which also requires issuance of a conditional use permit under this Title; 4. Involves the erection of any new sign, or the removal or substantial alteration of any existing sign within the waterfront subdistricts that lie within the boundaries of the historic overlay district, subject to any administrative review provisions of the Port Townsend Historic Preservation Standards Manual, as described in 17.30.160. C. Exemptions. The requirements of this chapter shall not apply to any development or municipal improvement that involves the following, provided, prior to undertaking any activity listed below required building permits or other approvals shall first be obtained: 1. Involves the demolition of any church or other structure that is actively used for religious purposes, provided that the project proponent demonstrates that demolition of the existing structure is necessary in order to afford reasonable use of the subject property for religious-related purposes; 2. Is located within the R-II or R-III zoning districts of the historic overlay district and is listed as a permitted use under Chapter 17.16 PTMC; 3. Involves interior building construction, maintenance, remodeling and decoration activities; 4. Involves emergency repairs of buildings, structures and improvements; provided, (1) that a waiver of design review has first been obtained from the director, subject to such conditions as the director determines appropriate based on the emergency, and based on the requirements of this Chapter; (2) such repairs shall be strictly limited to correcting emergency conditions; and (3) that after cessation of the emergency condition, all permanent installations shall be subject to design review and approval under this chapter; 5. Involves ordinary (i.e., non-emergency) maintenance and repair activities; provided (1) that a waiver of design review has first been obtained from the director, and (2) all applicable code requirements are met, including criteria for buildings subject to review under this chapter. D. Controlling Effect of Chapter. This Chapter supplements other building and land use regulations and codes of the City for which permits and approvals may be required, including but not limited to, building code, fire code, shorelines regulations, energy code, accessibility code, and sign code. Where this Chapter is in conflict with any other building or land use regulation or code, then to the extent permitted by law, the provisions of this Chapter shall apply. SECTION 2. Amendment. Chapter 17.30, Historic Overlay District - Design Review, Section 17.30.085, Demolition, of the Port Townsend Municipal Code is hereby amended to read as follows (strike is deleted, italics is new): Page 3 Ordinance 2869 17.30.085 Demolition No demolition of any building or structure subject to review under this chapter shall begin without first obtaining-design review by the HPC of the proposed replacement development and obtaining a certificate of review. In the event the applicant has not determined a replacement development, the HPC may, after reviewing the effects ofthe demolition, i-ssue a waiver of design review prior to demolition if it finds that the proposed demolition prior to design review would not be detrimental to the purposes of this chapter. In the event of a finding by the city of an unsafe condition, an abatement order may be issued by the city without compliance with this subsection; provided, that all reasonable efforts have first been made to preserve and correct unsafe conditions rather than damage or demolish valuable buildings, structures or objects. 17.30.085 Demolition Standards. Definition - Demolition. 1. Demolition (or partial demolition) means the destruction or removal, or relocation, of a building or structure, in whole or in part. 2. Demolition (or partial demolition) pertains to the demolition of sign(ficant features of a building that are important to de.fining the building's or structure's historic character. A. 3. Demolition (or partial demolition) does not include the removal o.{ past additions for the express purpose of restoration of a structure to its historic appearance, form, or function. Demolition (or partial demolition) does not include the destruction or removal 0.[ portions of a building or structure that are not signi.ficant to de.fining its historic character. This exclusion is valid so long as the demolition is done as part of a design review application approved pursuant to section 17.30.080. B. Demolition Applications - Information Required Unless waived by the director, applicants proposing the demolition of any building or structure regulated under this chapter shall supply the information required under section 17.30.080 and the information set forth in this section. The information to be provided relates only to the property or building under review. The information to be provided does not require i'1.[ormation concerning an owner's assets or income, except as it speci.fically relates to the property or building under review. 1. Where demolition of the building is sought due to unsafe conditions, the applicant shall supply a report from a Washington-licensed structural engineer that substantiates that the building thereof is imminently dangerous to the public. 2. Where demolition of the building is sought for reasons other than unsafe conditions, the applicant shall supply a report from a Washington-licensed structural engineer and a.financial analyst or economist with demonstrated competence in the.field, demonstrating that maintenance o.lthe building or structure or any important features thereofproposedfor demolition will impose an economic hardship upon the owner, rendering it impracticable to renovate, restore or reuse the structure, and rendering it economically i'1.leasible to renovate, restore, or reuse the structure in comparison to the economic value of the proposed redevelopment. The report shall analyze the reasonable economic alternatives to demolition, Page 4 Ordinance 2869 including redevelopment for uses permitted by City code, and an analysis showing whether the redeveloped property is capable of providing a reasonable economic return upon completion of reasonable renovation or repair activities. The report shall also contain the following information: a. Current level of economic return including the amount paid jor the property, date of purchase, party from who purchased and the relationship between the current owner of record., the applicant and the person from whom the property was purchased; b. Annual gross income from the property for the previous three years; itemized operating and maintenance expenses for the previous three years, and depreciation deduction and annual cash flow before and qfter debt service, !f any, during the same period; c. Remaining balance on the mortgage or otherfmancing secured by the property, real estate taxes paid on the propertyjor the previous four years, and the most recent assessed value of the property; d. All appraisals obtained within the previous three years by the owner in connection with the purchase, financing or ownership of the property; e. Any listing of the property for sale or rent, price askedfor and offers received, !f any, within the previous two years; f. Fair market value of the property at the time of application; g. Whether the remainder of the site is capable of economically viable development even !f the structure is required to remain on the site. 3. Scaled architectural renderings, drawings and plans of sufficient detail showing the replacement buildings or structure proposed to be built on the site upon completion of demolition work. Sufficient detail means detail to allow conceptual review. C. Waiver. The Director, following recommendation of HPC, may waive the requirements in this section pertaining to demolition, in advance and in writing of any demolition. if the removal of the structure will not be detrimental to the historic and architectural character of the Historic Overlay District, based on the criteria set forth in subsection E (4) below. An applicant seeking demolition shall be entitled to a determination whether the proposal is entitled to a waiver without having to submit drawings or plans of the proposed replacement or remodeled structure. In addition, an applicant may seek a determination whether a demolition constitutes a significant alteration of a structure, for purposes of determining if the demolition standards of 17.30.085 apply. In these situations, the applicant shall submit such information as determined by the BCD Director is necessary to review a proposed demolition. A decision by the City on this application shall be effective for a period of five (5) years from the date of the City's decision and., if an application for a certificate of approval isfiled within fIve years, such additional amounts of time as are necessary to process the application. D. Applications tor Demolition. Applications for demolition, where no waiver as determined by the BCD Director applies, shall be processed as follows: 1. The City Manager shall appoint an independent expert to review and act with full authority as the Director on the application. The independent expert shall be a Page 5 Ordinance 2869 person with experience in historic preservation issues and in reviewing structural and financial information with respect to older buildings. 2. The City Manager shall provide notice of the application for demolition, and appointment of the independent expert, to each member of the City Council, and shall direct the Clerk to publish a notice of the pending application and opportunity to comment on the application. The comment period shall be at least twenty days before issuance of a decision on the application by the independent expert. 3. The independent expert shall review the application, and any written comments and any other information. 4. HPC shall provide recommendation on whether the demolition is detrimental to the character of the historic district, and a recommendation on design review for the replacement building or structure. HPC shall not be involved in reviewing structural or financial analysis relative to a proposed demolition. 5. ' The independent expert shall issue a written decision, granting, granting with conditions, or denying the application. The decision shall contain an explanation of the independent expert's decision. 6. Notice of the independent expert's decision shaLL be mailed to any person who, prior to rendering the decision, made a written request to receive notice of the decision or submitted written substantive comments on the application. 7. The time limits set forth in 17.30.100 apply to this section. 8. The process relating to Type II decisions (administrative decision with appeal to hearing examiner) applies, except as modified by this Section. A party of record may appeal the final decision of the independent expert to the Hearing Examiner in the manner provided by 17. 30.130. A determination that the application is or is not detrimental to the historic character of the district is appealable direct(y to the Hearing Examiner, without the applicant having to submit drawings or plans of the proposed replacement or remodeled structure, in the manner provided by 17.30.130. If the Hearing Examiner denies the applicant's appeal, then the process set forth in this section for demolition applies. If the Hearing Examiner upholds the applicant's appeal, then the process in Ch. 17.30 for design review not involving demolition applies. E. Peer Review. The director may request peer review of any documents or reports where the director deems it to be reasonably necessary to insure the accuracy, effectiveness or o~jectivity of any of the documents, reports or measures proposed within them. A written determination from the director requiring peer review shall include the following information: 1. A statement giving the reason(s) peer review is necessary (e.g., errors of fact or law, error in judgment, objectivity, or information or new information); 2. A statement of the spec(fic areas of the report believed to be inadequate or in error, or not sufficiently de.finite to allow meaningful analysis; 3. The specific information sought (such as co'1firmation of the structural de.ficiencies cited by the report, the adequacy of .financial estimates given for the renovation, restoration or reuse of the building or structure, feasibility of the proposed replacement structure to actually be built, co'1flicting evidence, etc.); Page 6 Ordinance 2869 4. The director may also consult with other agencies, requesting information on the proposal's impacts, and review of any report's contents which lie within the other agency'sjurisdiction or expertise. Before requiring peer review, the director shall attempt to obtain clar(fication or new injòrmationfrom the applicant or author of the report addressing issues raised by the director. The City shall pay for the peer review; however, if the peer review establishes that the reports submitted by the owner were not accurate to a material degree, then the applicant shall pay for the peer review. Certificate of Approval for Demolition - Criteria jòr Approval. 1. An application for demolition of a building or structure regulated under this chapter shall be denied unless the application is based on the building being an imminent threat or the owner seeks to demolish and build a replacement structure. Demolition shall be approved ~f F. a. Removal would not be detrimental to the historic character of the historic district, based on criteria setforth in subsection £(4) below, and b. The applicant has received conceptual approvalfor a new replacement structure, and c. The applicant has thefmancial ability and intent to build the proposed new structure as demonstrated by a guarantee agreement between the owner and the city. 2. ff removal would be detrimental to the historic character of the historic district, then the application shall be denied unless: a. The denial or partial denial will deprive the owner of reasonable economic use of the property; The building, structure, or portion thereof to be removed cannot be adapted jòr any other use, whether by the owner or by a purchaser, which would result in a reasonable economic return; There is no viable or reasonable alternative which would have less impact; or The structure is so deteriorated, and there is so little historical fabric, that it would be impossible to retain the historic, cultural, and architectural significance of the structure though rehabilitation or renovation. 3. "Imminent threat" means the building, structure, or portion thereo..lto be removed constitutes a documented major and imminent threat or immediate danger to the public's health and safety, or is likely to partially or totally collapse and thereby injure persons or damage property, and said demolition or removal is the only reasonable way to alleviate said threat. b. c. d. 4 The removal ofa structure will be determined to be detrimental to the historic and architectural character of the Historic Overlay District if the structure is at least 50 years old, and meets three or more of the following criteria or is less than 50 years old and meets at least five o..fthefollowing criteria: a. L<ì associated with events that have made a sign(ficant contribution to the broad patterns of national, state, or local history; Page 7 Ordinance 2869 Embodies distinctive architectural characteristics of a type, period, style. or method of design or construction, or represents a sign(ficant and distinguishable entity whose components may lack individual distinction; Is an outstanding work of a designer, builder, or architect who has made a substantial contribution to the art; Exemplifies or reflects special elements of the city's cultural, special, economic, political, aesthetic, engineering, or architectural history; Is associated with the lives of persons significant in national, state or local history; It is the only remaining, or one of the few remaining structures of a particular style, building type, design, material, or method of construction; It is a conspicuous visual landmark in the community or neighborhood; It is an important or critical element in establishing or contributing to the continuity or character of the street, neighborhood or area. 5. The owner has the burden of proof to establish by clear and convincing evidence the necessaryfmdings. 6 If application of the criteria results in a denial, but the proposed action is necessary to correct an unsafe or dangerous condition on the property, then the director may issue a permit strictly limited to correcting emergency conditions. b. c. d. e. f g. h. G. Certificate of Approval jor Demolition - Conditions. When a certificate of approval for the partial or complete demolition (as defined in 17.30.085(A)) of a building or structure regulated under this chapter is granted, or a waiver thereto is granted by the director, conditions may be imposed that include, but are not limited to, the following: 1. A stay on issuance of the demolition permit by BCD for a period of up to 90 days to allow alternatives to demolition to be explored. A longer time period may be established, if agreed to by the applicant; 2. Certificate of approval for a replacement building design, 3. Establishment of afmancial arrangement or assurance acceptable to the city that ensures or provides reasonable assurance the approved replacement structure will be built within three (3) years of approval of the replacement design (provided, the director for good cause may grant at any time an additional period of time up to one (1) additional year). Projects subject to the Shoreline Master Program shall compZv with applicable timeþ'ames in those regulations. Said guarantee agreement must contain a covenant to construct the approved replacement structure be recorded against the title of the land, and require the applicant to post a performance bond, letter of credit, escrow agreement or other arrangement or evidence acceptable to the city to ensure construction of the approved new structure. 4. Conditions which provide for the owner to document the property in manner approved by the director and/or for rights of access to the property for the purposes of documentation or for agreed upon removal of materials or artifacts. . H Certificate of Approval for Demolition - Expiration. A certificate of approval Jor partial or complete demolition (as defined in I7.30.085(A)) expires (fthe work authorized by the certfficate is not commenced within lBO-days from the date of issuance oj the demolition permit. Page 8 Ordinance 2869 The director may extend the time for commencement of work upon written request by the applicant showing circumstances beyond his or her control. {f the cert(ficate of approval for demolition expires, a new application for such must be submitted and approval obtained before work can be commenced. SECTION 3. Severability. If any provision of this ordinance or its application to any person or circumstance is held invalid, the remainder of the ordinance, or the application of the provision to other persons or circumstances is not affected. This ordinance shall take effect and be in force five days after the date of its publication in the manner provided by law. Adopted by the City Council of the City of Port Townsend, Washington, at a regular meeting thereof, held this ninth day of August, 2004. c~,-<2£-.~ Catharine Robinson, Mayor o~/.~ Pamela Kolacy, CMC~ J ~ John P. Watts, City Attorney Page 9 Ordinance 2869