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LEGAL DEPARTMENT INTEROFFICE MEMORANDUM TO: HISTORIC PRESERVATION COMMISSION FROM: THOMAS L. BODN ASSISTANT CITY ATTORNEY RE: STANDARDS FOR REJECTING OR MODIFYING CERTIFICATES OF APPROPRIATENESS DATE: July 31, 2002 Upon review of the minutes which were provided to us, I see a potential problem occurring in situations in which the Commission modifies a request for a Certificate of Appropriateness ( "COX). The problem arises from the fact that §21- 117.2(e)(5) mentions only two options for the Commission when considering a COA. The options are either to issue the COA or deny the application, stating in writing the reasons for such denial. Modification, particularly where the petitioner does not indicate consent at the hearing, is a denial of part of the application. - The factors which the Commission shall consider, - as set forth in that subsection, are: - "1. Appropriateness of the proposed construction, reconstruction, alteration, demolition or moving to the preservation of the historic landmark, specifically, and/or the Historic Preservation District, generally; 2. The detriment to the public welfare if the proposed construction, reconstruction, alteration, demolition or moving is permitted even though it is not deemed appropriate; and 3. The potential hardship that the denial of a certificate of appropriateness would cause the applicant." These being the factors, I move that the Certificate be issued as proposed except for the roof shall remain tile rather than asphalt shingles, as the material is more in accordance with other buildings in the district. A related problem is the timeliness of the notice of the denial. While the Commission apparently has 45 days to consider the application, your attention is called to §21- 117.2(e)(5)b which states the Commission may:: "Deny the application, stating in writing the reason(s) for such denial. Upon such denial, the applicant may appeal said denial to the Common Council which shall make a final determination of the application. Failure of the Historic Preservation Commission to take such action within sixty (60) days after receipt of the application by the Commission shall constitute approval of the application. The corresponding section in the County ordinances ( §6.78.070E1B) has a 45 day limit, but otherwise identical language. It is my opinion that the phrase "take such action" includes stating the reasons in writing for any denial. Even if the petitioner was at the meeting and was told the reasons, there still needs to be a written record. Of course, the minutes could constitute the written denial, but these would almost certainly not be done within the appropriate time limit. It would be appropriate for the president of the Commission to send this letter (at least drafted by staff, of course) giving the reasons in writing as to the petitioner.