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LEGAL DEPARTMENT IN'I'EXOFFICE MEMORANDUM TO: HISTORIC PRESERVATION COMMISSION DATE: October 5, 2001 FROM: THOMAS L. BODNA 2q ASSISTANT CITY ATTORNEY RE: QUESTIONS RAISED CONCERNING THE POWERS OF THE COMMISSION I understand these questions to be: 1. What can the Commission do if a Certificate of Appropriateness ("COA") is granted and no work done on the structure? 2. What are the Commission's remedies if a structure is left in a state of general disrepair? 3. What are the Commission's remedies if work is done on a historic structure without a COA? (1) Structures are approved as part of a historic district or as a historic structure. The issuance of a Certificate of Appropriateness means that the suggested changes will,conform with the historic import of the district or the structure itself. The application usually does not imply that there is anything wrong with the structure from our standards. If the owner, for whatever reason, decides not to carry through with any work, then the structure is still in conformity as it had been without the paperwork. The application is a request for permission, an indication of a desire to make a change, not a promise to do so, and even if it were a promise, it would be legally unenforceable for lack of consideration. In short, it is the owner's call, and the Commission is without remedy to enforce the Certificate unless the grounds had deteriorated greatly. (2) There is a specific section of the ordinance which addresses this issue. Citing the South Bend ordinance, §21-117.2(e)(7) concerning a structure within a historic district or a historic landmark, the Commission has the following power: "The Historic Preservation Commission may petition a building commissioner or his designee and the Department of Code Enforcement to cause the maintenance and/or repair of any historic landmark or property in Historic Preservation Districts. All appropriate legal remedies at the state and local levels shall be utilized by such officials when seeking compliance with standards established for preserving and protecting historic landmarks and historic preservation districts as further addressed in subparagraph (f) herein, which are in accordance with the intent of this article." The current practice of a letter from the Executive Director is not a replacement for this step, but can be utilized as a prerequisite. (3) While the ordinance provides the mechanism for bringing the offender into court for a fine, we have adopted the policy that an ex post facto COA is in the best interests of all concerned. There is nothing in the ordinance which prohibits such a policy. H .\WPDATA\TLB\Memos\Hist Pres.frm