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HomeMy WebLinkAboutREDmandevillemurryph5RECEIVED RED FILE SEP 21 2010 MEETING AGENDA SLO CITY CLERIC DATE, 2-1) t~ITEM # '1 S- DATE :September 20, 2010 CA&U1 la AAB-cdy A T TORNEYTO:City Council I~f CLERK/ORIG-i=7 DEPT HEAD SVIA:Katie Lichtig, City Manager l its FROM :John Mandeville, Community Development Director ./ ~r.r '~r i BY :Kim Murry, Deputy Director of Community Developmen t SUBJECT :Historic Preservation Ordinance P Pw DI RFIRE CHIE F R DI RFINN D Several red files have been distributed raising questions and providing comments, both fro m Council members and members of the public . In the interest of providing information that may be important to the public consideration of the draft Historic Preservation Ordinance in a timel y manner, staff is providing the following additional information and will be ready to answe r questions tomorrow evening . A summary of comments, questions, and requests for information posed to staff is included below, followed by staff's additional input for discussion at the Counci l meeting. In light of the amount and content of comment on the draft ordinance, staff anticipate s that after considering public comments and Council member input tomorrow evening, the mos t effective approach will be to provide direction to staff to return with changes to the propose d documents at a future date . 1.Fines are way too high . Deterrent should be reserved for historic resources tha t produce business or rental income (PH5-237). The Cultural Heritage Committee (CHC) reviewed fines from other jurisdictions and afte r considering several options, determined that larger fines were desired in order to provide a greater deterrent to unapproved demolitions (either active or by neglect). There is no magic to the amount chosen other than it reflects the upper limit seen in other jurisdictions and the CHC's determination that current limits to administrative fines at $500 is not enough of a deterrent t o be effective . Council may determine that a lower amount is appropriate . While most instances of demolition by neglect have been experienced in commercial situations , the California Environmental Quality Act (CEQA) does not distinguish between histori c resources that produce income versus those that do not . Demolition of a historic resource pose s a significant adverse impact in most instances and it is the unapproved demolition or condition s leading to demolition by neglect that the fines are meant to deter . 2.The ordinance changes the role of the CHC and should not authorize the CHC t o become enforcers or to impose penalties . A CHC member does not belong on th e Emergency Response Committee (ERC). ERC decisions should be presented to th e full CHC for deliberation . The comment raises two related, but distinct issues, one pertaining to the roles of staff, advisor y bodies and the Council in the implementation of the ordinance and one pertaining to the role o f the ERC in an emergency situation affecting a historic property . With respect to the first issue, the duties of the CHC as defined in the ordinance do not represent a change in the role of th e CHC for development review processes or provide more authority than that of a recommending body . However, staff agrees that Section 2 .68.072 (Legal authority and enforcement) should b e modified to eliminate the CHC and Council as parties charged with enforcement . The CHC an d Council are the review and approval bodies for development applications subject to th e ordinance, and the Council may serve as the appeals body for certain code enforcemen t activities, but neither the CHC nor Council would be charged with direct code enforcemen t duties as the language might suggest. Thus, staff recommends the reference to the CHC an d Council be deleted from that section . With regard to the ERC provisions, staff recommends language clarification in the ERC sectio n to reflect that the ERC advises the Chief Building Official . The ERC includes a member of th e CHC to provide advice on historic resources after a disaster for buildings that may be in need o f immediate action in order to address a stability issue . These types of situations cannot wait to b e addressed through the normal review process . Just as the CHC member is not the expert o n structural issues, the Chief Building Official (CBO) or Fire Marshall is not an expert on histori c issues. The ERC team is intended to bring together various experts to provide a balance d recommendation to the Chief Building Official . The CBO still has the ultimate authority to make a determination . 3.The "time to correct" provisions are harsher than the present provision of Chapte r 1 .24 of the Municipal Code . Economic feasibility should be taken into account . Chapter 1 .24 of the Municipal Code does not specify the time to correct a violation, but instea d speaks to the idea of voluntary compliance as the preferred approach prior to assessment of fines . Chapter 1 .24 does specify that citations must be paid within 30 days . Staff recommends adding language to the ordinance to refer to Chapter 1 .24 of the Municipal Code . The proposed ordinance provision explicitly states that additional time to correct may b e allowed by the Chief Building Official in recognition that not all violations may be feasible t o correct within 30 days . The CHC discussed the idea of economic feasibility and recommended structural feasibility a s the criteria since economic feasibility is already covered under the Economic Hardshi p provision . In addition, environmental review of a proposed demolition would cover th e feasibility of any proposal including economic feasibility . 4.Violation of the ordinance should not be subject to criminal sanction s (misdemeanor). Administrative citation is sufficient . Staff recommends removal of section 14 .01 .073 on PH5-236 . Government code sectio n 36900(a) and City Charter Section 609 provide that a violation of a City ordinance is a 2 misdemeanor, unless by ordinance it is made an infraction, and there is no need to restate tha t authority . The City Attorney's office has the discretion to "downcharge" misdemeano r violations to infractions where appropriate and to work with property owners who hav e demonstrated a willingness to work toward resolution . Where such cooperation cannot be achieved, the criminal misdemeanor complaint represents an important tool of last resort t o achieve code compliance. 5.There must be a time limit by which the City lifts deed restrictions from propertie s after correction or compliance. Agreed Section .14.01 .073D(b) on page PH5-237 specifies that the deed restriction woul d enforce the building permit restriction for up to five years following a violation unless the owne r obtained a building permit to correct the situation . The intent of this section is to provid e additional disincentive to unapproved demolition of a historic resource (either active or by neglect). Staff recommends language be added to reflect that the City would record a forma l release after final inspection of any required permits or at the end of five years if no permit s have been obtained . 6.Historic resources should not be permitted to be relocated except as allowed under CEQ A and Secretary of the Interior Standards . Staff agrees with this comment . Relocation is not a preferred alternative, but may be the onl y alternative to demolition in certain instances (and could potentially serve as mitigation in som e circumstances). Section 3.7 of the proposed Guidelines contains language addressing relocation of historic resources, which would need to be done consistent with the Secretary of the Interior's standards . 7.The Historic Fund should not be used for acquisition of real property . The CHC included this provision to provide policy direction to enable use of the fund to acquir e historic properties being offered voluntarily . This section may be deleted without effect if th e Council feels it implies something other than intended. Option #5 under "Uses of Fund" allows Council to identify any other purposes that are in the best interests of the City . In addition, th e City has property acquisition and disposal policies that would require Council action to identify such an action as an appropriate use of City or grant funds . 8.The Director's decision regarding CHC review cannot overrule that of the Council , Planning Commission or ARC . The provision under section 14 .01 .045 is meant to reflect the current practice that allows th e Director not to send minor projects to CHC for review if they can be determined to be consisten t with historic preservation guidelines and the Secretary of the Interior Standards . Staff suggests a minor wording addition : "Notwithstanding Section 14 .01 .040 A-E and G"to address th e concern raised. 9.The ordinance should apply to publicly-owned resources such as adobes . Page PH5 - 227-228 should be amended to reference publicly-owned adobes . PH5-235 edits . 3 The City prioritizes General Funds and seeks grants to address these unique resources in th e Community. The City makes its best efforts to maintain the properties in compliance wit h historic preservation standards, but also must prioritize use of public funds . Just as a privat e property owner has the ability to ask for relief due to economic hardship, the Council goe s through a very public and inclusive priority setting process for the two year budget that assign s funds to community priorities. The City has assigned General Funds to repair and stabilize th e adobes over the years . Where possible, grant funds are used for adobe projects . For instance , the City will be using CDBG funds this fall to repair and stabilize the La Loma adobe . Page PH5-227 and 228 refers to resources other than structures - such as gardens and sit e features . This is not an appropriate place to reference the adobes . The adobes are already referenced in the Master List of Historic Resources . PH5-235 - architectural features . Staff supports deletion of "unwilling or". 10. Please provide a comparison of the penalties and provisions of the Municipal Code , International Property Maintenance Code and the Proposed Historic Preservatio n Ordinance . Property maintenance provisions exist in both the International Property Maintenance Code an d the Zoning Code, however, neither are specific to historic properties nor have a focus on thei r vulnerability to demolition by neglect . Staff recommends a reorganization of the enforcemen t and property maintenance section to reflect this intent . A comparison of the current versions of the three codes follows: International Property Maintenance Zoning Code Proposed Draft Ordinanc e Cod e What i s covered? Exterior property areas 6 .e. sanitation, sidewalks, driveways , rodents, exhaust vents, motor vehicles , property defacement) Swimming pools/hot tub s Exterior structure (i .e. protective treatment, structural members , foundation walls, roof stairways , chimneys, handrails, windows, doors and hatchways) Interior structure (i .e. structura l members, stairs, handrails, rubbish , pests) Light, ventilation and occupancy Plumbing facilities and fixtur e requirements Mechanical and electrical requirements Fire Safety requirements Properties in a state of abandonmen t or partial destruction or constructio n for one year or more . Unreasonable state of partia l construction for two years or more . Absence offinish material or damage d exterior for at least 25% of th e exterior surface area. Broken or defaced structures , equipment, machinery etc . that may become an attractive nuisance . Parking areas or drives wit h substantial cracks, potholes or othe r deficiencies that may pose a substantial risk of harm . Dead vegetation, infested, diseased o r overgrown or harbor pests . Graffiti-defaced structures or surfaces. Violation of a condition of a discretionary permit (CUP, PUD , ARC, Variance,etc) Building elements in a condition tha t they may fall or damage property o r persons ; Deteriorated or inadequate foundation , flooring, or floor supports ; Members of walls, partitions that split , lean list or buckle ; Members of ceilings or roofs o r horizontal member supports that split o r buckle; Fireplaces or chimneys which list o r bulge ; Deteriorated or crumbling plaste r Deteriorated or ineffective waterproofing of exterior walls, roof, foundation or floors ; Faults, defects or deterioration whic h renders it structurally unsafe or no t watertight; Unsecured openings that allo w unauthorized entrance or use of 5 - PH5 Redfile Response International Property Maintenanc e Code Zoning Code Proposed Draft Ordinanc e Maintenance of property in a condition in a way that is detrimenta l to the public health or welfare . building or site; Excessive trash, debris, landscape tha t may pose a public nuisance or hazar d or adversely affect the safety and condition of property or adjacen t properties . How is it enforced? Written notice of violation sent t o owner with time required to respon d Fines or penalties are as set by stat e or local laws (Municipal Code 1 .24) Each day a violation continues after proper notice has been served is deemed a separate offense and may b e charged as such . Any action taken shall be charged against the rea l estate upon which the structure is located and shall be a lien upon suc h real estate. Any person failing to comply with a notice or violation shall be deeme d guilty of a misdemeanor or civil infraction as determined by the loca l municipality . Violation is a "strict liability offense" which does not require proof that the person intende d to violate the code or was negligent i n doing so . All that is required fo r conviction is that the notice of Municipal Code 1 .24 provides authority for City to impose an d collect civil administrative fines alon g with enforcement. It refers to administrative guidelines for procedure, but specifies that fines ar e due within 30 days of being assigned . Administrative guidelines : Owner contact. Letter indicating 15 days to correc t violation . Additional follow up depends on owner response . Proposed language refers to Municipa l Code 1 .24 and guidelines fo r enforcement action which would includ e owner contact followed by a lette r indicating the owner has 30 days t o correct violation (with additional tim e allowed by Chief Building Official), Additional follow up depends on owne r response. Violation is currently specified as a misdemeanor. -6 - International Property Maintenanc e Code Zoning Code Proposed Draft Ordinanc e violation for correction was properly served and that the person failed t o comply . How much ar e the fees? Construction permit fees fo r corrective work will be doubled (doe s not apply if no code enforcemen t action has been established). Recalcitrant violators will be assesse d a Code Enforcement fee of $309 .3 0 (Subject to annual CPI increase) Construction permit fees for corrective work will be doubled (does not apply if no code enforcemen t action has been established). Recalcitrant violators will be assesse d a Code Enforcement fee of $309 .3 0 (Subject to annual CPI increase) Construction permit fees for corrective work will be doubled (does not apply if no code enforcement action has bee n established). Recalcitrant violators will be assessed a Code Enforcement fee of $309.3 0 (Subject to annual CPI increase) How much ar e the fines? $100 for first citation . $200 for second citation . $500 for third citation . $100 for first citation . $200 for second citation . $500 for third citation . Up to $10,000 may be assessed as a on e time fine. Ongoing violations may b e charged from $100 -$5,000 per day up to a maximum of 30 days for continuin g violations. What othe r penalties may apply? Cumulative remedies are allowe d Refusal to issue permits until administrative fines are paid . Suspension of issued permits if unpai d fines exceed $500 . Criminal remedies - City attorne y may file infraction or misdemeanor t o any person for a code violation whe n the applicable fine has not been paid . Property liens are possible . Cumulative remedies are allowe d Refusal to issue permits unti l administrative fines are paid. Suspension of issued permits if unpai d fines exceed $500 . Criminal remedies - City attorney may file infraction or misdemeanor t o any person for a code violation whe n the applicable fine has not been paid . Property liens are possible . Cumulative remedies are allowe d Building permit restriction for up to fiv e years unless violation resolved enforce d by deed restriction. Loss of preservation benefits . Restoration may be required . Maintenance or stabilization may b e conducted by City and lien placed for both penalties and cost to stabilize structure. 11.Why is the proposed range in daily fmes so wide ? The fines have a large range because the types of violations and the impacts of those violation s on historic resources vary widely . There is no magic to the amount of the fines . The CHC desired a strong deterrent for situations that would lead to demolition by neglect . Council coul d direct staff to come back with administrative guidelines to provide more direction for how th e fines would be imposed . For example, a smaller fine might be appropriate for failure to obtain a permit for unpermitted minor work where the work which adversely altered a historic resourc e can be reversed . The largest fine would be imposed for unpermitted demolition of a histori c resource or where demolition by neglect resulted in the building being declared unsafe and a public nuisance. The Council may also determine that an increasing fine is appropriate fo r second and third occurrences of violations within a certain time period . 12.Please provide some discussion of the fmes based on assessed value vs . tha t proposed in ordinance . The CHC considered different options for fines . The advisory body reviewed examples fro m other jurisdictions when considering the amount of fines to include in the ordinance . One of th e earlier drafts of the ordinance included fines based upon assessed property value, however, afte r considering input from the public, the CHC agreed with an .observation that basing a fine on assessed value would result in differing penalties depending on how long the property owner ha d owned the property . The concern expressed was that a violation penalty on a property owne d for 20 years would be far less than the same violation on a property that had been owned for tw o years due to Proposition 13 effects on property valuation . The CHC discussed various options and determined that a specified amount would be the mos t appropriate option and the action included opting for a similar amount to those reflected i n several other jurisdictions with substantial penalties . -8 PH5 Red file Response 13.What financial incentives are available for Master List and Contributin g Properties? Existing Incentives Master List Properties Contributing Propertie s Local Mills Act Property tax relief X Federal Tax Credits X Historic Plaque X X Proposed Incentives Master List Properties Contributing Propertie s Local Mills Act Property tax relief X Federal Tax Credits X Historic Plaque X X Reconstruction after loss X X Modified development Standards X X Additional Uses -- B&B , Historic use, compatible use X X Historic & facade easements X X TDC - transfer development potential elsewhere in City wher e appropriate . X X Fee waiver or reduction X X Historic Fund assistance X X 14."Out of Pocket" costs for listed properties going through City process for review ? Building and Planning fees are the same for historic and non-historic projects . There are n o additional submittal fees required for projects that go through ARC or ARC-MI review - CHC review is part of the process and does not come with an additional charge . CHC action is a recommendation so most decisions are not appealable until subsequent action i s taken by Director or ARC . If an appeal is filed, it is subject to the same appeal fees as any othe r project appeal and this fee is set by City Council . "Out -of-pocket costs" may be related to two situations : If a historic report is required, the applicant is responsible for that cost. Historic reports will b e required for proposed modifications to historic buildings where the Community Developmen t Department does not have enough information on file to make a recommendation regarding th e -9 - project's consistency with the Secretary of the Interior's standards . In many cases, the histori cfilespecific to the property does have the requisite information and no further reports ar e required. If a project involves alteration to a historic building where more than 25% of the structure is t o be modified, the proposed guidelines define this as a "demolition". If the project cannot b e found to be consistent with the Secretary of the Interior Standards, the CHC could find that a substantial adverse affect would be created by the project and an EIR to address that specifi c impact would be required prior to action being taken . The cost of preparing the focused EIR would be the responsibility of the applicant . 15.Why was 30 days chosen for compliance timeframe ? Current enforcement procedures direct the owner to correct a violation within 15 calendar days . The CHC felt that 30 days to correct a violation was an appropriate amount of time . However , public input prompted language to be added to allow the Chief Building Official to grant mor e time if appropriate (i .e. some structural issues may require engaging an engineer or architect t o develop plans which would take more than 30 days). 16.Should the development of the Historic Ordinance have been initiated as a "blan k slate" prior to the on-set of staff work? Was the Council mistaken in not conceiving o f this effort as similar to adding an element to the General Plan ? Council identified creation of the Historic Preservation Ordinance as an "Other Importan t Objective" through the 2009-2011 Financial Plan. This effort is not similar to adding a n element to the General Plan but is instead a General Plan program implementation . The CHC's Whitepaper recommendation from 2000 is incorporated into a General Plan program - Conservation and Open Space Element program 3 .6.10 - which specifies that the City shal l adopt a Historic Preservation Ordinance . The City has had Historic Preservation Program Guidelines in place for 25 years and provisions in these Guidelines have become the foundation of the proposed Ordinance . Rather than star t from a blank slate, the CHC used the Guidelines as a starting place, reviewed literature and th e state of historic preservation practices; discussed and reviewed programs at the State Office of Historic Preservation and National Register of Historic Places ; reviewed the application requirements associated with becoming a Certified Local Government (CLG); reviewed ordinance examples from other CLG jurisdictions ; and listened to and incorporated public input and General Plan guidance . While input from a member of the public has indicated that Lan d Use Element (LUE) 2 .15 specifies that this effort should have started with the neighborhoods, th e program referenced relates to General Plan direction to develop "Neighborhood Wellnes s Plans" and does not apply to development of a City-wide ordinance related to histori c preservation efforts . 17.What are maximum fines allowed if proposed ordinance penalties are not adopted ? What steps are required under Section 1 .24 of the Municipal Code ? Maximum fines would be $500 per violation . See responses above for Municipal Code process . 18.ERC should include a member of the Board of Construction Permit Appeals or th e CDC member should be eliminated in order to have an odd number of members fo r decision-making purposes. This body is meant to advise the Chief Building Official and currently the draft ordinanc e specifies that a majority of a quorum of the ERC is required for all decisions . Staff recommend s that additional language be added to clarify this process as advisory to the CBO and that a majority recommendation is not required. The intent of the ERC is to provide additiona l information for the CBO to consider as post-disaster demolition actions arise . 19.There are some ambiguities in the language that could use clarification. For example, Definition of Neglect and Demolition by Neglect could use some additiona l language . Staff will take Council direction and make modifications to sections where needed . 20.Is there any circumstance where the Director could overrule a determination of th e Council, Planning Commission or ARC? If so, language may need to be added t o advertise this decision and to provide for appeal . The Director's authority is not being recommended for expansion . Staff recommends languag e be added to clarify that the Director's authority does not include such actions as overrulin g Council. Director determinations are already appealable to Council and there is no need to restate this provision . 21.Consideration of recommended changes to ordinance to include economic infeasibility. Economic infeasibility is addressed in two ways : CEQA review of proposed changes to historic resources, including demolition or relocation, will address feasibility including economi c feasibility . The proposed ordinance also includes an economic hardship provision to addres s economic infeasibility for projects and penalties under the enforcement section .