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HomeMy WebLinkAboutWestminsterHoldingsLLCPositionStatement11102021Westminster Moldings LLC v. Historic Preservation Commission Petitioner's Evidentiary and Administrative Record and Position Statement November 10, 2021 Submitted by Jeffrey Flathers representing Westminster Holdings LLC INTRODUCTION On October 18, 2021, Westminster Holdings LLC filed in the South Bend City Clerk's Office an Appeal to the South Bend Common Council of the Historic Preservation Commission's Denial of Certificate of Appropriateness, Application #2021-0810. The Appeal gives a chronological outline of the events leading up to the filing, and I reference the Council to that document for the relevant specifics. The Petitioner's application is very cogent in it's allegations. STANDARD OF REVIEW We ask that the Common Council apply a standard of review based on issues of law, issues of fact (who, what, when, where, why), issues of fact and law, and discretionary matters. ISSUES OF LAW As stated in the Appeal, the HPC in its September 20, 2021 ruling specifically violated Petitioner's constitutional rights under the Indiana state constitution and under the United States' Constitution. Specifically, we allege that the HPC, in hearing the case was sitting and ruling unconstitutionally because one of its voting members was ineligible to sit on the Commission by violating Article 6, Section 6 of the Indiana Constitution, which states: "All county, township, and town officers, shall reside in their respective counties, townships and towns; and shall keep their respective offices at such places threrein, and perfom such duties, as may be directed by law. " Because Mr. John Tiffany, acting as a Commissioner was not a resident of Portage Township, in which the Chapin Historic District lies, he was unconstitutionally abrogating Petitioner's protected rights under the State Constitution. As a second cause of action, and issue of law, the HPC violated Petitioner's rights under the Equal Protection Clause of the United States' Constitution as elaborated in the 14th Amendment: "No State shall... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws. " The Petitioner maintains that the HPC does not have a written standard preventing Vinyl Clad Windows within the Chapin Historic District. Moreover, in it's September 20' hearing and October 18' filing, Petitioner submitted a sheaf of 17 photos which show the presence of vinyl windows in many homes within the Historic District. Because the owners of those homes have been allowed to replace their old windows with vinyl ones, and because the HPC demands that the Petitioner replace its windows, there is a clear double standard in the Commission's application of its guidelines and its ruling. This violates the Equal Protection Clause. As a final issue of law, and cause of action, Petitioner asserts that the City's Historic Preservation Administrator, Mr. Adam Toering, individually, or in conjunction with South Bend city employees breached Petitioner's rights under the 4' Amendment to the United States' Constitution, by illegally entering upon 768 Portage Avenue to seize window sashes without a warrant. The 4' Amendment states: "The right of the people to be secure in their persons, house, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. " The City's warrantless entry onto Petitioner's real property, and seizure of personal property, violated Petitioner's express 41 Amendment rights. FACTS Attached with Petitioner's October 18' filing, Westminster Holdings LLC submitted the first two pages of a mortgage for Mr. John Tiffany to purchase 68432-68434 Ginger Street in Edwardsburg, Michigan. Mr. Tiffany's new home is outside of the City of South Bend and Portage Township. Furthermore; it rests outside the Indiana state line. Lasted on page one of the mortgage document, Mr. Tiffany's (borrower's) address is listed as 17540 Darden Rd, South Bend, IN 46635. This address rests outside of Portage Township. At the September 20, 2021 HPC hearing, Jeffrey Flathers specifically asked each of the commissioners two questions, whether they resided in the City of South Bend and whether they: resided in Portage Township, Mr. Tiffany falsely raised his hand, answering "yes" to each of those questions. When Mr. Flathers asked these questions before the HPC, intending to ensure himself that each of the sitting commissioners was constitutionally eligible to vote on the Certificate of Appropriateness Application, HPC attorney Sandy Kennedy attempted to quash his question, alleging that he was 'asking inappropriate personal questions. Kennedy adamantly yelled "Sit down little man!" at Flathers when he raised the matter. Kennedy also averred that each of the sitting commissioners was constitutionally eligible to vote on the HPC. This was also false because Mr. Tiffany was not eligible to serve or vote on the Commission at the time of the hearing. Turning to the Equal Protection Clause cause of action, Petitioner provided seventeen, 8 x 10 glossy photos to the HPC to support the contention that vinyl clad windows are common in the District. Of the sample of homes in a one block area of 768 Portage Avenue, the site address, the majority had vinyl windows. Jeffrey Flathers and his wife walked around Leland and Ashland Streets to sample homes in the area. The photos indicate that most of the homes enjoy tasteful, modern vinyl windows in all of some of their facades. The Petitioner made written notations on the back of these photos to provide a subjective grade from 1 to 10 on the curb appeal and desirability of these structures. Clearly, owners of these homes have already voted with their pocketbooks, purchasing and installing modern vinyl windows to replace energy inefficient, single pane, lead -paint encrusted originals. In his October 18' filing, the Appellant asserted that nowhere in the Chapin Historic District guidelines are vinyl windows proscribed. They are not prohibited by the HPC's own guidelines, or in actual fact in homes throughout Chapin. The HPC's ruling that the Petitioner must remove his vinyl windows, instead of administratively approving the COA application to ratify the installation was arbitrary because those same standards are not applied to other District homeowners. Cause of Action #2, as laid out in Petitioner's Appeal discusses how HPC member Downs-Krostenko claimed that all the vinyl windows in the District had been "grandfathered in" and were already in place in 2005 when the Chapin Historic District was formalized. Petitioner cited the Guidelines that mentioned only existing wood and aluminum clad windows which evidently represented the entire stockpile of existing windows as of 2005. As such vinyl windows in the District, must have been installed post -2005. They are now numerous and omnipresent throughout the neighborhoods. Several of the HPC's voting members alleged that their denial of the COA application was based in part on the fact that the application was asking for ratification rather than pre -authorization. Prior to installing the vinyl windows in question, Petitioner was unaware of any potential restrictions therein. The third Cause of Action relates to the seizure of wooden window sashes from 768 Portage Avenue In his September 23, 2021 letter to the Petitioner, Mr. Toering wrote "Staff retained the removed window sashes were you to want to reinstall them in the window openings." At no time did Mr. Toering, or any other South Bend employee, obtain a legal warrant to seize the window sashes and to present such a warrant to Mr. Flathers. Mr. Toering provided a photograph from a city inspector which indicated the presence of windows on the grounds of 768 Portage. In order to seize those sashes, one or more South Bend officials entered Petitioner's real property without a warrant and seized his property, again without a warrant. This is illegal and unconstitutional. ARGUMENTS AND CON'T'ENTIONS Petitioner's arguments and contentions are based upon the law and facts. Fundamentally, the facts and law cited in this document, and in the October 18" Appeal demonstrate that the HPC's September 20' ruling was arbitrary, capricious and not in accordance with the State or Federal Constitution. That is the key argument. The question does not revolve around the HPC's right to exercise it's authority within its published Guidelines as adopted by the Common Council The crux of the matter is that the HPC had no authority to deny the Petitioner's COA application because it was a) Sitting illegally because it included an unconstitutional member b) Not applying its Guidelines equally, and thus violating the Equal Protection Clause and c) Colluding in a Warrantless and unconstitutional search and seizure of property. The HPC exceeded its statutory authority by alleging a prohibition on property that does not exist in its mandate. Specifically, there is no law against vinyl windows in South Bend, Indiana, Portage Township, or in Chapin Historic District. As such, the HPC had no right to allege Petitioner violated the District's Guidelines, because he did not. Finally no member of the the HPC, during the hearing, offered any evidence to support their contentions that the Petitioner violated District guidelines. Specifically, no member of the HPC pointed out a specific violation, and therefore they had no cause to deny Petitioner's COA application. EXHIBITS Petitioner already included Exhibit 1, Mr. Toering's September 23, 2021 letter to Westminster Holdings LLC denying the COA Application.and Exhibit 2, the first two pages of Mr. Tiffany's Mortgage to buy a new house in Edwardsburg, MI, dated April 28 2021. In addition to those Exhibits, and the 17 glossy photographs submitted to the City Clerk on October 18. 2021, the Petitioner includes an excerpt from the Guidelines for the Chapin Local Historic District. We ask that the Common Council voting members be given access to each of these exhibits which will be addressed by Petitioner in oral arguments. CONCLUSION AND POSITION STATEMENT For the reasons outlined above, Petitioner asks the Common Council to uphold State and Federal Constitutions and to OVERRULE the HPC's capricious and arbitrary denial of his application for a Certificate of Appropriateness. We ask the Application be immediately APPROVED. JEx 4,187 T Guidebook- Chapin Park T ocal Historic District Recommended The original shape and materials of the roof should be restored. Particular effort should be made to retain materials such as slate, tile and other unique materials not commonly found in new con- struction. Roof covering which is deteriorated beyond repair should be replaced with new mate- rial that matches as closely as possible the original in composition, size, shape, color and texture. Gutters and downspouts are often a necessary adjunct in order to prevent deterioration of the structure; they should be maintained whenever possible or replaced with a style comparable and suitable to the architectural period. Prohibited ROOF TYPES -- Nothing shall be done to change the essential character of the roof as viewed from a street by adding architectur- al features or large unsightly _ fixtures, or by using materials inappropriate to the style of the house. The roof shall not be stripped of architec- tural features important to its character. Not Recommended Overhanging eaves, soffit, brackets and gables should not be covered or enclosed when adding sid- ing to a building. C. WINDOWS AND DOORS Window and door frames are in most cases wood and vary depending upon the style of a..d the home. Many are double- 'c hung windows with woodIj Jamb 's' 1 muntin �'y trim and sills. Brick structures � ,*•,r —y�j— � , marine roil wayF� have stone sills and brick lin- a I a' was eFf ° w tels. In some cases where alu FJW—Mile— minum siding has been ° "' applied, the window and s n bm,"m mil i a;;, Mwi M"vuln Pmplo door trim has been covered., .s `?'"� ; ( " Thea arc ""iy thres examples i About half of the structures in ? ` i l , 1_ — Sa of many preslFir prn(ik .Mum ti"..m" cnmdbwr s"bx.m+.nr the district have aluminum w as". a .at "" w(minw Saliuns ro winJ w sienifiana. storm windows; the other half have wood storm windows. Required Original windows and doors shall be retained including sashes, lintels, sills, shutters, decorative Mass, pediweut.�, eteriorated beyond repair, they shall be replaced with units and trim resembling the original.�_� Casement windows adapted the English tradition of using wrought iron casements with leaded 1'!�1.—�•` tames for residential use. Rolled steel casements (either single, as shown, or paired) were popular ql in the 1920s for Cottage -style residences and' Gothic -style campus architecture. More stream- lined casements were popular in the 1930s for j institutional and small industrial buildings. Page 74 F�(LA J T Chapin Park Local Historic District Guidebook Recommended Wood storm windows and doors painted or finished to match the original should be used but should not damage existing frames. If new sashes or doors are installed, the existing or original materials, design and hardware should be used. When metal storm doors are used, they should be painted, anodized or coated to match the existing. When awnings are used, they should be of can- vas material EX7E110Fi Prohibited Original doors, windows and hardware shall not be discarded when they can be restored and reused in place. New window and door open- ings, which would alter the scale and propor- tion of the building may not be introduced. Inappropriate new window and door features such as metal, vinyl or fiberglass awnings, hoods or aluminum insulating glass combina- tions that require removal of original windows and doors, shall not be installed. Not Recommended Fake shutters that would detract from the existing character or appearance of the building should not be used. Figure 9. Appropriate types of weatherstripping for metal windows. Weatherstripping is an important part of upgrading the thermal efficiency of historic steel windows. The chart at right shows the jamb section of the window with the weatherstripping in place. Drawings: Sharon C. Park, AIA A ACKYLIC MKIEU -1 MA6NLTIC MTERIOR (.Lk" PANEL. p NTE tIOrL Figure 8. Two examples of adding a second layer of glazing "I order to improve the thermal performance of historic steel windows. Drawing: Sharon C. Park, AIA Spring -metal EI MMIOh Spring -metal comes in bronze, brass or stainless steel with an integral friction -fit >Mw�. clip. The weatherstripping is applied after FAAMC 7, the repaired windows are painted to avoid galvanic corrosion. This type of thin weath- erstripping is intended for windows in good condition. wcnrxers`Rnw Vinyl Strips EATCRIOA Vinyl strips are scored and folded into a 9MH? "V' configuration. Applied adhesive is necessary which will increase the thickness of the weatherstripping, making it inap- FFAMC 2ac�-_ propriate for some situations. The weather- strip ing is generally applied to the wFAnEMITF1r w i ow after painting. Foam Tape EATEIiIOh p Closed cell foam tape comes either with or without an adhesive backing. It is effective hMH -7 for windows with a dap of approximately 1/4" and is easy to install. However, this FMMC ! Tj type of weatherstripping will need frequent. replacement on windows in regular use. 'LwFAtlienxnlr The metal sections should be cleaned of all dirt and grease prior to its application. This very effective type of weatherstrip - Sealant Bead EXMAIOKping involves the application of a clean bead of firm -setting caulk on the primed hMw frame with a polyethylene bond breaker the The is jjl� operable sash. window er7l tape on then closed un bead has set and takes the form of the gap. The sash is then 2 wearier xmr opened and the tape is removed leaving the set caulk as the weatherstripping. Page 75