The Daily Pulse:

Is the government-imposed H-1 option moot?

We have a significant footnote to the previous blog about the Pryor Brown Garage situation. The city's law department is now implying significant limitations about the city's authority to prevent demolition on private property via an H-1 application.

The H-1 overlay application, which can be filed at the discretion of either the mayor or an elected City Council member, has been employed on a few rare occasions for about 15 years.  It saves a building for 180 days, regardless of the owner's wishes, while it can be considered for a permanent overlay. It has been used in recent years to protect South High as well as a cluster of buildings on West Hill Avenue, including the Lord Lindsey and the Mary Boyce Temple house, which has recently been handsomely renovated by new owner-resident Brian Pittman.

In these cases, a property owner had filed a demolition permit for the structures, but was discouraged from actually demolishing them by the government-initiated H-1 application process. In the light of the city law department's legal doubts about the Downtown Design Review Board's powers to prevent demolition, as well as MPC's ability to delay a demolition, that H-1 process was coming to seem elected government's only tool to prevent demolition of a building not already in a historic zone.

At the beginning of this week, some who had been involved in administering H-1 historic zones were of the opinion that an H-1 application could prevent the demolition of a building even after a demolition permit had been approved. That's apparently not the case--and considering that demolition permits may be approved in only three to five days, it left a very narrow window of when a government-initiated H-1 application might take effect.

In fact, for preservationists, it's worse than that. According to the city's law department, even an application for a demolition permit may trump any later H-1 application. 

Regardless of the historic value of any building, if it's not already in a historic zone, there may be nothing legally that can be done to save it, assuming the owner insists on tearing it down. 

The current law department is proving itself to be more prudently cautious about respecting property rights than previous city law departments were, and though the intent may be only to prevent unnecessary lawsuits, the results seem to be stranding several preservation initiatives and tactics.

Crista Cuccaro, attorney for the Rogero administration's law department, released this opinion today, after an inquiry from us and Kaye Graybeal, historic-preservation coordinator for the Metropolitan Planning Commission:

"Without question, an H-1 overlay application can be submitted before a demolition permit application and effectively trigger the 180-day moratorium specified in the City's ordinance. Conversely, once a demolition permit has been issued to the applicant, an H-1 overlay application would be ineffective as to that demolition permit. Less clear, however, is the effect of an H-1 overlay application after a demolition permit application, but before the demolition permit issuance. As it's written, the City's ordinance is unclear on whether the moratorium on the issuance of demolition permits can start after the application for a demolition permit. Additionally, there is no case directly on point for the issue of demolition permits and rezoning following application. Therefore, state law does not provide additional guidance on the issue. There are constitutional and fundamental fairness issues associated with changing the law that applies to a process after such process has been initiated by a citizen. The City's position is to limit its liability and its exposure to litigation when the result is less than certain. Thus, the City maintains that, until a court decides otherwise, an H-1 overlay application can only trigger a moratorium prior to the demolition permit application."

If that opinion stands, the H-1 option would have been moot in the case of Pryor Brown ever since the original demolition application was filed last June. And to demolish a historic building, even if it's been recently discovered to be the birthplace of  major historic figure, or to be a unique work of architecture previously unknown to history, all  the demolition-minded property owner has to do is keep his or her intentions quiet until filing for the demolition permit. According to the city, based on current statutes, government can do nothing to stop it. 

The City's opinion is not a unanimous one among local attorneys, and some local preservationist lawyers still insist an H-1 application can be legally binding even if it's not filed until after the demolition application is filed.

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