Minutes of the State Historic Preservation Review Board Special Meeting
November 2, 2018, 10:00 A.M.
Board Room, Fourth Floor, Michigan State Housing Development Authority
735 East Michigan Avenue, Lansing, Michigan
Kemba Braynon, Sally Bund, Dale Gyure, Misty Jackson, Janet Kreger, Brian Rebain, Krysta Ryzewski, Grace A. M. Smith
Amy Arnold, Scott Grammer, Katie Kolokithas, Joelle Letts, Martha MacFarlane-Faes, Nathan Nietering, Luke Pickrahn, Todd Walsh
Matt Bahnet, David Bihl, Eric Haven, Jim Meloche, Michael Moon, Jennifer Radcliff
Rebain called the meeting to order.
Motion to strike Public Comment item from today’s meeting agenda
Motion to move approval of September 14, 2018 minutes to January, 2019 regular Board meeting
1. Bohnet v. City of Grand Rapids Historic Preservation Commission
Grammer stated this is a fairly simple issue in regard to historic preservation: the replacement windows are original, repair or replace? The proposal for decision is messy. Both sides have merit and the decision does not do a good job getting the preservation issues or the law correct. There are a lot of elements to this opinion.
Rebain asked for clarification as to the Review Board’s (Board) standing. Grammer indicated that the Board can adopt the proposal for decision in whole or in part or can issue its own opinion. Grammer further indicated that the Board cannot take into account whether the local ordinance should be null and void; the ordinance is there. Bund asked if the administrative law judge acknowledged that he couldn’t overturn the whole ordinance. Grammer confirmed that the administrative law judge indicated that he also had no jurisdiction over whether the ordinance was null and void. Kreger stated that each time a new district is established, a new ordinance is established. Walsh summarized by adding that there are two issues at play, one is city wide and administrative, the other is local Historic District Commission (HDC) action and whether it is valid or not, and he reiterated that the Board’s role is to determine if the HDC acted appropriately. Grammer mentioned that the ordinance is not within the Board’s purview anyway. Kreger cited in the materials that in the City of Creston v. Center Milk Product Co. decision, procedures had not been followed but in this case they had been acquiescing to its use and found this to be compelling.
Grammer noted one thing that was unclear from the minutes of the [local historic district] meeting was if there is signage in the district. Kreger suggested that visually, you know you’re in a historic district even without the signage, and there is no requirement to have such. Grammer agreed that you certainly get the feel when you are in someplace different, even if it is not generally obvious that it must be a historic district. Bund clarified that people are saying that one would assume that someone would know this, but there is no documentation to prove this. Bund inquired if the realtor notified the resident and stated that the only thing in terms of notification that the HDC can say definitively is the registering of the amendment with the register of deeds.
Smith mentioned there is no proof that the petitioner opened the title packet or read the material. Kreger cited the Castle v. Clemens case, which noted that the someone has a responsibility to make inquiries appropriate to the action that is being taken.. Kreger continued that prior to Public Act 169 of 1970 (PA169) amendments in 1992, you did not have to register in the deeds office that your property has local historic district restrictions. Grammer indicated that the Board can choose to remand this case back to the administrative law judge to determine additional facts in this case. Bund asked what the process is for adopting an ordinance and having action taken at the register of deeds. Rebain stated that on the preservation side of this issue, from his own experience, vinyl windows replacing historic windows are probably the most common type of project undertaken without a certificate of appropriateness. Bund asked what kind of past compromises have been made in relation to window replacement. Rebain indicated that in the City of Detroit, compromises have been made taking into account the public facade vs. private facade of a structure, changing design to make the look more appropriate, and a change of window frame color have all been employed. In this case, there was an outright, complete denial with no apparent option for compromise. Smith stated that in Holland, vinyl windows are immediately rejected. Grammer highlighted that in the text, it is not necessarily clear whether the use of ‘original’ means that the windows were the original historical windows to the house, or are they original as in existing when the house was purchased.
Kreger noted the petitioner’s use of financial hardship was not appropriate, citing PA169 399.205 (6c). Grammer mentioned that financial hardship in the preservation context is different than financial hardship in the broader context and analysis and acknowledged that the administrative law judge was looking from a cost-benefit perspective instead of a preservation perspective. Rebain stated that in the Secretary of the Interior Standards, vinyl is never compatible in a local historic district. Braynon inquired if a detailed cost estimate for the windows was ever made. Braynon continued that it would be a slippery slope to allow vinyl in this situation and set a poor precedent. Kreger noted that this incompatible work was tipped off by an anonymous call which implies that there are other homeowners who have invested significant funds into their windows and neighborhood. Smith stated that Grand Rapids is one of the few cities that send out welcome packets to new homeowners in their historic districts. Jackson asked why one notification was returned. Grammer indicated that it wasn’t clear in the records why the notification was returned. Kreger indicated there was a picture of the mailing in the Board materials and it went to the address which was on the city records. Grammer stated that a critical fact is the difference between actual notice vs. constructive notice and clarified that actual notice is duly recorded at the register of deeds, whereas constructive notice is how someone should come to a realization through external methods that an action needs to be taken even if not explicitly told so. Bund asked how constructive notice stands up in courts. Grammer indicated that the record as a whole would be taken into account.
Grammer asked if the Board felt they had enough facts, and if not, what additional facts would they like to learn. Grammer also stated that the Board speaks to local historic districts through Review Board opinions. Kreger stated that she was not certain how the motion would read. Grammer replied that as the Board evaluates its proposal for decision it must consider if there are elements of the judge’s opinion that the Board would like to retain and are there elements that should be removed or changed, and noted that the Board can also issue its own final decision and order. Gyure asked what the Board’s final product is. Grammer replied that the Board must reach a decision about how to proceed and then issue its own final decision order or alter the proposal for decision, and articulate what it needs in the final proposal for decision.
Rebain reviewed the administrative law judge’s four conclusions and acknowledged that the Board can address each one individually, all as a whole, or not at all. Grammer indicated that the Board can disagree with the judge’s finding and assert its own finding as a body of historic preservation professionals by issuing its own opinion.
Grammer indicated that in the final decision and order, the Board will articulate its expert position on the four conclusions drawn by the administrative law judge. Bund stated she wanted to be sure to note that municipalities must abide by the Local Historic Districts Act especially the section about recording notice at the register of deeds.
Motion to decline to adopt the decision of the administrative law judge, and in its place, this Board will provide its own final decision and order.
Grammer asked for clarification of the four conclusions highlighted by the administrative law judge that the Board wished to address in its decision and final order. Rebain replied that the four conclusions were (1) failure to comply with the Act to register with the warranty of deeds, (2) that the Act coupled with the denial of the application for Certificate of Appropriateness does not impose undue financial hardship, (3) this hardship was caused by the city’s violation of the Act by not registering notice, and (4) HDC did not “fairly or objectively consider the effect of its actions.”
Motion that Rebain as chair of the Michigan Historic Preservation Review Board be signatory to the opinion that the Board will produce relating to 240 West Wellington, Grand Rapids, within a reasonable time.
Motion that the Counsel for Historic Preservation draft the opinion with the input of the Board.
Motion for a 10 minute break.
2. Lehman Investment Company, LLC v. City of the Village of Clarkston Historic District Commission
Grammer summarized that this is another complex case but from a legal perspective, it has fewer issues, stating that there is an ordinance that was based on a study committee report from when the district began, nearly forty years ago. The non-contributing structure in question has since attained the fifty year status. The one-time owner became a significant person in the community. But no additional updates were provided to the study committee report or survey. This particular administrative law judge and proposal for decision are much more logical.
Bund noted that this is an early study committee report (1980), and asked if the law requires that non-contributing resources be listed in the study committee document. Kreger indicated it does. Bund inquired if a document does not contain the non-contributing notification in the legal form when it gets registered, what is a property’s standing relating to the Historic District Commission (HDC). Kreger stated that no matter whether contributing or not, a resource is still a resource, and it still exists within the district. Grammer stated that this is a valid argument and it’s not clear how a judge might decide. Bund stated that property #42 is indicated on the district map. Kreger stated it is unfortunate for this conversation that the HDC was not advised by a legal counsel of the legal protections which are contained in PA169 in the amended 1992 version and that the second to last section of the Act has given the city the ability to move forward using several protective mechanisms. Kreger continued that everything counts within a historic district, every resource, because they cannot speak for themselves. Grammer pointed out that as time moves forward, structures once less than fifty years of age attain new significance, while also highlighting that the decision-making and funding mechanisms aren’t always prioritized in order to keep district boundaries and significance up to date. Rebain indicated that this local ordinance went into effect in 1980, but the period of significance ends in 1949, which is inaccurate. Rebain continued that it doesn’t meet the fifty year threshold, however the National Park Service can only list periods of significance in their online database in 25 year increments, but noted the important dates are still listed correctly.
Kreger noted an argument for this as a resource is PA169 section 399.205 (6b), which specifies what specifically can be learned by an HDC when a case of proposed demolition is brought before them. She continued that it is up to the applicant to provide proof that they have the necessary planning and zoning approvals, financing, and environmental clearances etc. all in place ahead of time. Kreger noted that in the transcript from the HDC, a commissioner asked for this information repeatedly, and the petitioner and the administrative law judge both said it was outside the purview of this law, but Kreger stated it is certainly within the HDC purview. Rebain added that within the local historic district manual one question was ‘does work on non-contributing resources within a district need to be approved by the HDC,’ and the answer is yes it does. Rebain continued that regardless of whether a resource is contributing or not, the size, placement, massing, etc. are subject to review so it might be compatible with the district overall. He mentioned that street frontage and fabric is very important to the district and demolition will not be approved without a flushed out plan in place. Braynon asked if there was a timeline provided for implementation. Kreger mentioned that PA169 is silent about timelines, although individual communities can apply a timeline as they feel to be appropriate.
Kreger continued by referencing section 202 of PA169 which states that historic preservation is declared to be a public purpose. She shared that on her site visit, she found Clarkston to be a beautiful town that has wonderful character, as a whole, fostering civic beauty. Bund questioned if the HDC even understood that they had the tools to be able to ask the petitioner for more information before they make their decision. Kreger stated that the rhythm of the streetscape is amorphous to most people. Rebain indicated there is a clear edge feel in this setting with setback, massing, repetitive border. He highlighted that a description of the street feel is briefly mentioned and this is important to consider. Grammer highlighted that advocating for the resource is important here, but the study committee report and ordinance are still a problem. Kreger noted that in Clarkston’s ordinance, this section is copied word for word from PA169, and just because the HDC didn’t articulate their need for the additional information, it is still grounding for them to get what they require. Kreger continued that it would be beneficial to recommend that the decision be sent back to the local HDC to reread PA169 in full in order to ask for the information they need to make a decision. Gyure stated this would have added educational benefits for the HDC and for the application of the ordinance in this situation.
Rebain indicated that in his review of the findings of the administrative law judge, the opinion does not state that the HDC does have the ability the review work proposed for non-contributing resources within the District, which it does. Kreger stated that the 1992 amendments to PA169 made clear that an HDC does have the ability to look at both historic and non-historic resources. Grammer indicated that one recommended path could be to remand it back to the administrative law judge in order to obtain additional facts including the distinction of notice to proceed vs. certificate of appropriateness, and also to define what a resource is, and to indicate that in the Board’s view, it is within the HDC’s purview to request the additional information needed per PA169 for them to make an informed decision.
Motion to remand the decision back to administrative law judge to have the Clarkston Historic District Commission get the additional information necessary from the petitioner appropriate to PA169 section 399.205 (6) so that they can make a judgment accordingly.
Motion to make Michigan Historic Preservation Review Board chairman Rebain signatory to the decision.
Motion to have Counsel for Historic Preservation draft the order of remand with Board input.
Walsh enumerated the sections of 36 CFR parts 60 and 61 which relate to the Review Boards, and also provided copies of the Manual for State Historic Preservation Review Boards. Kreger inquired if all Board members also have up to date copies of PA169 and also the current Secretary of the Interior Standards. Grammer also suggested all Board members might review the Penn Central decision as the linchpin of historic preservation law.
Grammer stated that as part of training, it might be good to focus on boardsmanship and also on considering a Michigan-centric version of the National Park Service Review Board manual. The Open Meetings Act, FOIA, etc. should also be discussed. Grammer continued that after having talked to a couple former board members, they recommended that it would be useful to go through the fact pattern from previous appeal cases in a safe training space so board members can discuss application of the law, advocacy, and what questions they have. Board members voiced their support for this suggestion.
Motion to hold Michigan Historic Preservation Review Board training following an agenda yet to be decided during calendar year 2019.
January 18, 2019
Motion to adjourn
Vote: 8-0, adjourned at 12:22 p.m.
Minutes prepared by Nathan Nietering