Update on Changes to the Landmarks Ordinance

August 9, 2010 6:35 am

The Landmarks Commission has discussed this at 8 meetings already, and I missed most of them, so I went back through the minutes to see what I missed, here’s my summary/highlights of the discussions they had in case you’re also interested. They will be discussing this again tonight. Much of this is taken directly from the minutes, but I skipped portions of them that were less relevant or repetitive. Language added is in bold instead of underline for internet purposes. Motions/actions/potential changes are in red. Its interesting to note that none of the critics of the ordinance have shown up to discuss their concerns with the commission. Or at least written the commission with their comments. Tonight, the discussion continues if you have something to say.

March 8

Mr. Levitan noted that there are three specific things that need to be looked at: 1) internal review of the variance language, 2) design standards, and 3) post Commission review language (appeal). He added that he thinks that it is important to begin this process soon, so that changes would not be occur by Common Council without our input.
Ms. Slattery asked staff to look into what other ordinances require a 2/3 majority. Staff agreed and noted that before the Ordinance was amended in 1997, there was no appeal to the Common Council, and was only appealable to the courts, and that at the Common Council meeting there was also a lot of discussion about the meaning of the hardship language associated with the appeal.
Ald. Maniaci wants the Commission to consider consolidating the district standards language.
Mr. Levitan noted that many of the standards are district specific, such as the Marquette Bungalows District, and that while it may be good to make the ordinance more compact, that we need to make sure that the important differences are preserved.
Staff noted that any changes to the specific historic district standards should also be discussed among the local neighborhoods, and could require many neighborhood meetings.

March 22

They discussed that they would leave the individual neighborhood language until later.
Mr. Stephans noted that there seemed to be four specific areas of concern that could be discussed first: process, appeals, variances and the visually related area definition.
Mr. Levitan stated that we should also consider renumbering the ordinance so that the variance language 33.19(15) should be placed after all of the other process and before the historic district criteria.
Interesting discussion about the 2/3 vote and politics of the issue of amending the language.
Discussion of their schedule.
Members asked staff to provide information on the history of the ordinance and the appeal language.
A motion was made by Levitan, seconded by Slattery, the following goal was adopted by the Landmarks Commission on a voice vote/other.
“After observing the need for a review and potential revision of the City of Madison Landmarks Ordinance language due to some confusing and conflicting process language, the Landmarks Commission intends to review the ten sections relating to process, powers and duties; Sections 33.19 (1) through 33.10(9) and 33.19(15) and propose language amendments as necessary.”

April 26th
Joe DeRose, Wisconsin State Historical Society was there to talk with them – here are the highlights of the conversation:

Mr. DeRose works with the Certified Local Governments Program (CLG) and works with communities on their local preservation ordinances. There 62 CLGs for historic preservation in the State. In order to qualify to be a CLG, the local government must have an ordinance with some teeth, must have a Preservation Commission that meets regularly, and they have to send the State their agendas and minutes, which the City of Madison does.
Mr. DeRose looked at the other ordinances, and that the City’s 2/3 appeal threshold is unique among the CLGs in Wisconsin. He stressed that he believes that that fact isn’t as important as determining what are the appeals thresholds for other boards and commissions within the City of Madison code structure.
Mr. DeRose says it is never a good idea to change things in the heat of the moment as a reaction to a single project. He said that the process seems to be working, as the project was able to continue though the process, and the Commission did its job to try and protect the historic district, adding that it is the job of the Common Council to take the Landmarks Commission’s decision in advisement and determine if there are overriding issues about the project that makes it worth overriding that decision.
Ms. Slattery asked what Mr. DeRose meant when he said that in order to be a CLG, the ordinance has to “have teeth”. Mr. DeRose replied that the Commission must meet regularly, and that the Commission must have the ability to designate Local Landmarks (or Historic Districts) and to review potential alterations to those landmarks.
Ald. Maniaci asked if there are other ordinances that have a maintenance clause. Mr. DeRose replied that Madison’s ordinance has a maintenance clause, and that other ordinances develop different triggers that get projects in front of commission. Staff added that the trigger in Madison is the request for a building permit. Mr. DeRose added that he believes that Platteville’s ordinance has a good maintenance section. Ald. Maniaci adds that a Building Inspection (BI) violation could also potentially trigger a visit to the Landmarks Commission. Mr. DeRose said that a BI violation could be a good trigger to help regulate maintenance issues.
Mr. DeRose said that the State really holds up Madison’s Landmarks Ordinance as a model for other communities, especially for the five historic districts, as it is very difficult to designate whole areas as historic districts. Many other communities don’t have any districts, only separate designated landmarks.
Mr. DeRose stated that it does concern him that all of these potential changes come in the
wake of a controversial project. He added that he wouldn’t want the City to change an essentially model ordinance, and throw out 40 years of work because of one project. It is the role of the Commission to protect landmarks and historic districts.
Ald. Maniaci asked about his thoughts on landmarks vs. districts. Mr. DeRose replied that the best way to preserve is with districts, as it preserves both the individual buildings and the environment. Single landmarks are more exposed and a lot can change around them that affect their historic quality. He added that if the Commission is thinking about adding any new historic districts that they should really try to get at least 80-90% of the property owners to agree, as he has seen just a few property owners that do not want the district set back preservation by 10 years in a community.
Ald. Maniaci asked about contributing vs. non-contributing buildings. Mr. DeRose said that at the time of designation buildings are catalogued for their contribution to the historic district. Modern buildings, or buildings that have been greatly altered are not considered to be contributing the character of the district, and therefore are ineligible for consideration for the tax credit program. In some cases buildings go under major alterations after the districts are created. If that happens, buildings can be delisted from their contributing status and become ineligible for future tax credits.
Ald. Maniaci asked about the difference between old and historic, as she has some constituents that are interested in a new historic district. Mr. DeRose said that historic is defined by law, as in your Landmarks Ordinance which uses three criteria that can determine if buildings are historic. Sometimes the historic significance lies in the particular story of a building and sometimes it lies in the aggregation of many properties that have similar stories that become historic when put together in a specific context.
Ald. Maniaci asked about the local district regulations and the national district tax credits; why
would people want to be in a local district that is not also a national district and therefore eligible for tax credits? Mr. DeRose said that being in a local district protects you and your neighbors from doing something that would adversely affect each other’s houses. It is essentially a collective agreement that the property owner will protect their neighborhoods.
Ald. Maniaci asked about the James Madison Park Neighborhood, which is a neighborhood in transition. Mr. DeRose said that it can sometimes be a tough sell to preserve more working class neighborhoods, at least that is how it has been in the past.
Ald. Maniaci asked about Conservation Districts – are they sort of a “Historic District-light”? Mr. DeRose replied that overlapping districts can sometimes be very confusing for residents, and that he doesn’t work with Conservation Districts.
Ald. Maniaci asked if there are other cities that have ordinances that are more comparable to Madison’s. Mr. DeRose replied that the most similar ordinances in the state are Milwaukee, La Crosse, Racine and Eau Claire. He added that Cedarburg and Mineral Point have ordinances that are very restrictive and regulate almost everything.
Ald. Maniaci asked about the threshold for what can be thought of as historic. Mr. DeRose replied that the cut-off for consideration is usually 50 years, and as we are now in 2010, buildings built in the late 1950’s after World War II, are going to be considered. He added that many of these homes were ranch houses with three bedrooms, one bath and a one-car garage – how many neighborhoods are still intact in that configuration without many additions and alterations? It is those areas and neighborhoods that will have the most historic integrity.
Ald. Maniaci mentioned her like of those mid-century modern houses. Mr. DeRose said that while her interest is great, that this is why city landmark ordinances are so important, so that personal preference of commissioners is not an issue, and it is a City policy, enacted by the Common Council that determines what the criteria are for historic preservation. The Commission would look and determine if a group of 1960’s ranch houses met the specific criteria for the creation of historic districts. He added that the Madison Historic Survey, which was last done several decades ago, did not take into account the post-WWII buildings that are now becoming eligible.
Ms. Slattery asked if there would be a CLG grant available through the State to do a study of these neighborhoods in Madison. Mr. DeRose replied that by the middle of June, communities interested in applying for a CLG grant should contact him with a general idea about what kind of grant that they would like to pursue, and then a formal letter of intent is due by mid-September. He added that the maximum grant is $25,000 which is a reimbursement grant, and that surveys are usually best done in spring and/or fall when there are fewer leaves on the trees.

May 24th

4 members of the public registered and/or spoke.
Ms. Gehrig wanted to clarify for the audience that looking at the language of the Ordinance was the Commission’s idea. She added that she would like to keep the 2/3 majority appeal Common Council language intact, but would like to clarify the remaining language.
Ald. Maniaci said that after looking at staff’s memo, the 2/3 majority language does seem to be in keeping with similar land use appeals to the Council of decisions made by the Plan Commission.
Ms. Slattery added that she was glad to see so many other uses of the 2/3 supermajority, which really put the language in perspective. She added that she is comfortable with keeping that, and asked staff to look into other appeals language of historic preservation ordinances, adding that she will also contact the National Association of Preservation Commissions to see if they had similar language.
Ms. Taylor also agreed to keep the 2/3 appeal language and said that the Commission should work on clarifying what language the Common Council should use during an appeal. She suggested that the appeal should be based on the criteria under which the project was reviewed by the Commission in the first place. Ms. Slattery said that we should make it more specific.
Ms. Gehrig said that the purpose and intent language is too vague, and that people interpret it differently. She added that she would like the Commission to come up with its own language before they have the City Attorney review it.
Mr. Stephans added that if the Ordinance doesn’t have a clear definition of hardship, perhaps the Commission should create one, or look to other ordinances to find better language.
Mr. Stephans stated that as Chair, for the record, he believes that after hearing the Commissioners views that it is the sense of the Landmarks Commission that the 2/3 supermajority requirement in the appeals language is consistent with how other City Ordinances operate, and that it doesn’t seem to be an in-ordinate obstacle.
Ald. Maniaci also asked that the Commission create more definitions to help clarify parts of the five Historic District criteria, such as gross-volume and environment since some district standards have much less information in them than other districts. Ms. Slattery said that she agrees that the Commission should be consistent, but that they need to respect that the neighborhoods worked on their specific districts, and when the criteria were created, some neighborhoods were willing to accept more specific standards and criteria than other neighborhoods. Mr. Stephans said that the Commission did vote not to look at the specific
historic district criteria as part of this ordinance language review, but agreed that there are some definitions that could clarify intentions.
Ms. Taylor said that she thinks the Commission should either remove or re-write 33.19(1)(f) in the purpose and intent section since strengthen the economy of the city’ in not a main goal of the Commission. Ald. Maniaci said that whatever language the Commission proposes has to get support at the Council and be approved by a simple majority. She added that the Council can also make amendments and change any part of the Ordinance when it is before them.
Mr. Stephans suggested that the language of 33.19(1)(f) could be amended to read “strengthen the economy of the City through appropriate preservation of irreplaceable historic and cultural resources.” He added that the open spaces are just as important as the buildings.
Ms. Gehrig said that the Commission should invite the four alders of historic districts to be involved in the discussion about language changes to get their support. She added that when the Commission is finished reviewing the Ordinance, that she would like the “handbook guide” version of the ordinance to be updated and reprinted for easier reading and outreach to property owners of historic buildings.
Ald. Maniaci said that in Sec. 33.19(4) there is no discussion about contributing and non-contributing buildings, and wondered if the Commission should look into that. Mr. Stephans replied that currently the Ordinance does not recognize the difference, but that looking at it would gain bring in the issue of looking at specific historic districts and that it would affect the neighborhoods. Ms. Gehrig thought that it would be interesting to talk former Preservation Planners to find out why that wasn’t considered when the districts were created.
Ald. Maniaci said that she believes that it is important to look at these issues, even if it is difficult. Mr. Stephans repeated his earlier statement that the Commission had decided to look at the general Ordinance language, but not the districts at this time in order to make some changes in a reasonable amount of time.
Ald. Maniaci said that the Landmarks Commission is the keeper of the Historic Districts, not the neighborhoods. She added that she also has issue with how the Visually Related Area is drawn and that if a building is outside of the district that it can’t be considered even if it is directly across the street. She cited the Holy Redeemer project from a few months ago.

June 14th

Mr. Fruhling distributed the appeals language from 10 selected communities.
Jason Tish, 2714 LaFollette Ave., representing the Madison Trust for Historic Preservation, stated that he feels the current language is aimed more at existing buildings and suggested the Commission consider new language that would apply to new construction.
Mr. Levitan stated that the wording in the first paragraph of the appeals section (33.19(5)(f)) is difficult to follow and suggested the following changes:

(f) Appeal. An appeal from the decision of the Landmarks Commission to grant or deny a Certificate of Appropriateness under Subsection (5)(b) and (c) may be taken to the Common Council by the applicant for the permit, . In addition, an appeal from the decision of the Landmarks Commission to grant or deny a Certificate of Appropriateness for any building or demolition project requiring a public hearing, whether this determination is made upon receipt of the application for a demolition permit or at the end of the one-year period in a case where action on the application has been suspended, or to suspend the action on a demolition application, may also be taken to the Common Council by the Alderperson of the district in which the subject property is located, or by 20% of the property owners within 200 feet of the subject property.
Mr. Fruhling stated he would check with the City Attorney’s Office to see if they have any concerns about this potential change and report back at the next meeting.
Ald. Maniaci asked if there needed to be a different definition of “hardship” and stated that more terms need to be defined.
Mr. Levitan asked why the Commission is the Landmarks Commission and not the Historic Preservation Commission, suggesting that may be more consistent with their mission.

June 28th

Staff noted that the language discussed at the last meeting in regards to the appeals language and remove the sentences that refer to public hearings was reviewed by the City Attorney, and that they see no issues with the proposed language.
Staff was asked to put together a list of the items regulated by the Landmarks Ordinance that can be approved administratively. In addition, staff was asked to look at terms and develop a list of terms that regularly cause problems with interpretation. Mr. Levitan asked staff to look into the legislative history of the Public Hearings requirement for additions over 100 square feet within the University Heights Historic District.

July 12th

Staff reviewed the materials that were provided to the Commission. Landmarks Commission Procedures, Landmarks Ordinance Revisions, Legislative History of the Visually Related Areas, Definitions list for discussion and the Table of contents from a draft guide to the Landmarks process.
Mr. Levitan asked about the types of projects that preservation staff can approved, as discussed in Section 33.19(5)(b)(2). Staff replied that the Policy and Procedures documents as adopted by the Commission was included in their packets. Staff briefly described the varied approvals that could be made by staff. The Commission re-affirmed these documents with the addition of Amy Scanlon, as staff designee who could approve such projects.
Mr. Levitan asked about the public hearing notices required for additions over 100 square feet within the University Heights Historic District. Staff directed the Commissioners to the information packet that described the legislative origins of the required notice, as related to a new building within the district where neighbors felt like they didn’t have enough notice. Mr. Levitan suggested that the language be moved to Section 33.19(12) of the Landmarks Ordinance which deals specifically with the University Heights Historic District. On a motion by Levitan, seconded by Slattery, the Commission proposed to move the section 33.19(5)(b)(3) to somewhere within section 33.19(12) of the Landmarks Ordinance, University Heights District language, with specific placement at the discretion of the City Attorney’s Office. The motion was approved by a voice vote/other.
Mr. Levitan suggested that the language in 33.19(5)(h) relating to the potential rescinding of landmarks designation was too lenient, and suggested that 33.19(5)(h)(2) should be changed such that the Common Could determine whether or not the designation was rescinded and
not be forced to as the language implies. Mr. Levitan suggested the following language:
33.19(5)(h)(2) “ …the Common Council may shall rescind its designation of the subject property.” Mr. Rosenblum agreed and noted that the six month time period to find a willing seller as referred in the same 33.19(5)(h)(2) seemed very short. He suggested that perhaps the whole section could be removed, but if that isn’t possible, at least it should be fixed. He also noted that the process never comes back to the Landmarks Commissions for its opinion on de-designation. Mr. Rosenblum asked staff to see if they can find out the legislative history of this ordinance amendment. Mr. Levitan stated that this section infers that owning a landmark building is an economic disincentive, and accepting a premise that if there isn’t a willing buyer, at an unknown and potentially disingenuous selling price in six months, it is easy to have a building
de-designated. Mr. Levitan added that it should be much more difficult for landmarks to be de-designated. On a motion by Levitan, seconded by Rosenblum, the Commission proposed to amend the language in 33.19(5)(h)(2) to read “ …the Common Council may shall rescind its designation of the subject property.” The motion was approved by a voice vote/other.
Ms. Slattery wanted to discuss Section 33.19(5)(B)(4)(a) and the language “adversely affect”. She asked if it should be defined, as there are national criteria of Secretary of Interior Standards, Section 106 that could be used. Mr. Levitan thought that it is up to the Commission to determine “adversely affect”, as that is essentially their charge throughout the Ordinance. Mr. Stephans noted that he believes that language is used throughout the State Historic Preservation Office without definition, and that he doesn’t have a problem leaving it the way it is.
Mr. Levitan brought up the variance Section 33.19(15)(d) “Authorized Variances”. He noted that this section caused some difficulties during the Edgewater debate. He said a careful reading of this section directs the reader to 33.19(13)(c) in the Marquette Bungalows District. He added that if that is true it changes the whole dimension of the problem, and that if that section was simple re-titled “Authorized Variances in the Marquette Bungalows Historic District” it would eliminate the confusion. On a motion by Levitan, seconded by Rosenblum, the Commission proposed to amend the language in 33.19(15)(d) to be re-titled to read “ Authorized Variances in the Marquette Bungalows Historic District.” The motion was approved by a voice vote/other.
Mr. Levitan discussed Section 33.19(15)(a) “…District only in the specific instances hereinafter set forth and only if the proposed project will be visually compatible with the historic character of all buildings directly affected by the project and of all buildings within the visually related area…” Mr. Levitan said that he believed that the VRA was essentially a subset of buildings directly affected, and as such that language could be simplified by removal of the words: “…and of all buildings within the visually related area…” On a motion by Levitan, seconded by Slattery, the Commission proposed to amend the language in 33.19(15)(a) to read ““…District only in the specific instances hereinafter set forth and only if the proposed project will be visually compatible with the historic character of all buildings directly affected by the project. ~~and of all buildings within the visually related area…~~”” The motion was approved by a voice vote/other.
Mr. Levitan also wanted to change the language of Section 33.19(15)(c)(3) as the term new construction became an issue. He said that since the Commission treated a large addition as a subset of new construction, the language could be changed to read more clearly. He said that the term addition(s) and/or new construction should be repeated throughout the paragraph. On a motion by Levitan, seconded by Slattery, the Commission proposed to amend the language in 33.19(15)(c)(3) to read: “In the case of additions and/or new construction, the proposed design incorporates materials, details, setbacks, massing or other elements that are not permitted by the ordinance but which would enhance the quality of the design of the addition and/or new construction ~~for the new building or structure,~~ provided that said addition and/or new construction ~~new building or structure~~ otherwise complies with the criteria for additions and/or new construction in the Historic District in which the addition and/or new construction ~~building or structure~~ is proposed to be located and provided further that it would also have a beneficial effect on the historic character of the visually related area.” The motion was approved by a voice vote/other.
Mr. Levitan asked staff to look into the new demolition ordinance as related to historic structures for the next meeting, as well as other historic ordinances for language pertaining to the rescinding of landmark designations.

July 26th:

Staff noted that there is a document in the packets showing the proposed revisions to date.
Staff handed out a list of definitions that need review. (I think that was the right document)
Mr. Levitan asked that staff investigate the definition of “improvement”. He suggested that “betterment” be changed to “alteration” and that the word “genius” be reviewed. Ms. Slattery suggested that the word “hardship” be included. Mr. Levitan also noted that he would like staff to look at hardship language as related to the appeals process.
Mr. Levitan suggested that staff find legislative history on the regulation of painting signs on
buildings and the use of sand-blasting.
Mr. Levitan also noted that he would like staff to look at hardship language as related to the
appeals process.