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HomeMy WebLinkAboutMCSWEENEY APPEAL BRIEF submitted 62522Filed in Clerk's Office Historic Preservation Commission (HPC) v. Joyelle McSweeney, PetitidAoy�-J - Cff)'GLEAIK, SOUTH BEND, IN Petitioner's Evidentiary and Administrative Record, Pleading and Position Statement June 23, 2022 Submitted by Joyelle McSweeney INTRODUCTION On May 4, 2022, Joyelle McSweeney 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. The Appeal Application and Appeal Narrative [Exhibits A, B] give a chronological outline of the events leading up to the filing, and I refer the Council to those documents for the relevant specifics, which are also listed below in 'FACTS.' STANDARD OF REVIEW We ask that the common council apply a standard of review based on 1) reasonableness 2) health and safety 3) preservation of historic value. ISSUES OF LAW 1) REASONABLENESS and HEALTH AND SAFETY The Standards and Guidelines of the Chapin Park Historic District [Exhibit C] provides the following guidelines which the Historic Preservation Commission (HPC) shall follow when petitioned by a homeowner to provide a Certificate of Appropriateness (COA): In making its determination, the Historic Preservation Commission shall consider three factors: first, appropriateness of the proposed work to the preservation of the building and district; second, the detriment to the public welfare if the proposed work is permitted even though it is not deemed appropriate; third, the potential hardship that the denial of the Certificate of Appropriateness would cause the applicant. [86] We hold that by delaying and finally blocking the petitioner's ability to appropriately address the most severely deteriorating, lead -shedding windows in our home, the HPC has caused undeniable, severe and ongoing hardship to our three-year-old child and to us as a family. It has therefore failed to meet the requirement of its own guidelines to consider potential hardship in reaching its decisions. 2) HISTORICAL PRESERVATION The Standards and Guidelines of the Chapin Park Historic District [Exhibit C] provides the following definition of Preservation: PRESERVATION [...]can include stabilization work, restoration or rehabilitation work, ongoing maintenance and/or prevention of demolition. [69]. This document moreover includes this sentence: "Original windows and doors shall be retained [... ] When deteriorated beyond repair, they shall be replaced with units and trim resembling the original." [79]. Greentree Environmental Inc, a well-regarded environmental services firm that regularly contracts with the City of South Bend, has attested via an email shared with the HPC that these six windows have deteriorated beyond repair and must be replaced [Exhibit D]. Moreover, we conferred with and took the advice of HPC liaison Adam Toering, revising our proposal to reflect a material previously approved by the HPC, namely wood -clad aluminum [see Exhibit E]. Further, we have confirmed and orally communicated to the committee that the materials will be an appropriate color and grid patterns resembling the original. Given that we have clearly met the Guideline's expectations that the windows have deteriorated beyond repair and that the replacements will resemble the original, the denial by HPC is undeniably arbitrary and capricious and without defensible foundation. FACTS The most important fact that you will read in this document is the following: On October 7, 2021, following hospitalization for respiratory distress, our then -two-year-old child Othello was found to have an elevated Lead Blood level of 7.0 ug/DL. [Exhibit F] The CDC held at that time that any blood level over 5ug/DL risks "adverse health effects, particularly in children under 6 years of age." [Exhibit F, p. 2]. The CDC has since tightened the standard and now holds adverse risks apply to any blood level over 3.5ug/DL. The CDC holds that when a child screens with lead levels above the threshold, steps must be taken to investigate the source of lead and take steps to reduce exposure to lead. [Exhibit G] Othello's elevated screening results were shared by law with the St Joseph County Board of Health, which in turn mandated a county lead investigation. Briannah Johnson conducted this inspection on 10/13/21. Elevated lead was found throughout the home and property. [Exhibit H] Six windows in particular were held to have extremely elevated lead levels, well beyond the others in the house. I have isolated that portion of the report [Exhibit I] as these are the windows under discussion in our initial petition for a Certificate of Apropriateness (COA), HPC's denial, and our appeal. The St Joseph County lead investigator provided a list of lead licensed contractors and mandated us to abate the lead in our home. Many of the listed companies no longer work in the region or do only commercial work. The first contractor we obtained a bid from proposed replacing every window in the house [Exhibit J]. The second contractor, Greentree Inc, proposed abating lead throughout the home and property, repairing approximately 30 windows, and only replacing the six most deteriorated windows with vinyl. [Exhibit K]. We then contacted the HPC for a Certificate of Appropriateness (COA) to begin the work of abating our household lead and ensuring the critical health, saftey and well-being of our child. Adam Toering, HPC liaison, reviewed our initial COA application [Exhibit L]. He informed us that vinyl replacements were not generally deemed appropriate by the HPC and suggested we look at aluminum or fiberglass materials which had previously been approved by HPC[see Exhibit E]. Wishing to cooperate with the HPC, we sought a new bid from Greentree for 6 aluminum replacement windows, which raised our costs by $12,000. [Exhibit M] We also confirmed with Greentree that the color and grid pattern of the replacement units would resemble those of the existing windows. This was orally communicated to Adam Toering and the HPC at the second hearing. We also contacted window restorers at this time to look at the possibility of restoring these six specific windows, but learned that since restoration firms generally do not hold lead licenses they would not be appropriate for a county -supervised lead abatement project such as ours. This was orally communicated to the HPC at the hearing and to Adam Toering when he visited our home. Notwithstanding, we were issued a denial on April 13, 2022 [Exhibit N]. ARGUMENTS AND CONTENTIONS I am a bereaved mother. In 2017,1 gave a birth to a baby girl with an unexpected birth defect. She was born at Memorial Hospital in Chapin Park, flown to Riley Children's Hospital, and died at just 13 days old. In the aftermath of that loss, wracked with grief but also hope, my husband and I trained to become foster parents with the St. Joseph County DCS. We were privileged to foster our son Othello when he was just five days old. We took him into our home at 628 Park Avenue in Chapin Park, and have raised him ever since. In August of 2021 we adopted him. Just two months later, after he developed unexpected and frightening respiratory distress and was rushed to the hospital, we learned of his elevated lead levels. We were shocked, scared, and wracked with grief a second time. We will do anything to keep this child well and safe and to ensure him the life we promised him when we became his foster parents and took him into our home. It is this sacred promise which the Historical Preservation Commission is attempting to abrogate through its arbitrary and capricious denial of our application to appropriately abate the lead in our home. A review of the reasons given for denial set forth in the Preservation Commission's letter of April 13, 2022 give no significant acknowledgement of the serious, compelling and dangerous health effects of delaying remediation by denying approval. This Denial is egregious. And is faulty in three regards: 1) It violates guidelines of the HPC itself. It creates and exacerbates hardship in the petitioner by casually disregarding the health and wellbeing of a child with elevated lead levels and thereby bringing stress and harm to both the child and its family. 2) It contains factual errors. As the exhibits show, we *did* seek out additional bids, and, as was orally communicated, we *have* consulted alternative window restorers. However, we were unable to utilize such alternatives within the confines of a county -mandated and county - supervised lead abatement, which requires work with lead -licensed firms. The HPC seems either unfamiliar with or in wilfull disregard of county board -of -health ordered lead investigation and abatement procedures. 3) It mischaracterizes us by suggesting that our "judgement is clouded" because we are "so focused on GreenTree." In fact our judgement is clear and our actions have been reasonable and in keeping with medical consensus around the urgency of addressing childhood exposure to lead. CDC guidelines hold that "children with a blood lead level (BLL) within the 3.5-5 µg/dL range will also be prioritized for lead reduction action. "[Exhibit G, page 3, italics mine]. We are focused not on Greentree, but on reducing our child's blood lead levels and abating the lead in our home in a timely and appropriate manner. By the time we present this appeal, nine months will have passed since Othello's initial elevated blood lead screening. The further delay this denial has created in the abatement process has actually increased the risk of long-term lead exposure and bodily harm to the child, and increased the mental hardship this has caused our family. CONCLUSION AND PERMISSION STATEMENT We ask that our application be immediately APPROVED. We love our home and our neighborhood and have made a long-term commitment to the community and to the University. We wish to remediate the dangerous situation which presently exists and stay in our home, keeping in mind the important issues of neighborhood and historical residential preservation. We wish to resolve this matter amicably and with the blessing of the HPC and the Commission and avoid the intervention of the Court and the time, trouble and expense of such intervention. WHEREFORE, for the reasons set forth above, Petitioner prays the Common Council to OVERRULE the HPC's unfounded, arbitrary and capricious denial of our application for a Certificate of Appropriateness and immediately approve the plan of remediation, repair, replacement and restoration proposed. Respectfully, Joyelle McSweeney APPENDIX: LIST OF EXHIBITS EXHIBIT A: Appeal Application EXHIBIT B: Appeal Narrative EXHIBIT C: Standards and Guidelines of the Chapin Park Historic District EXHIBIT D: Attestation to deteriorated condition of windows by Greentree, Inc EXHIBIT E: Correspondence with HPC liaison Adam Toering, suggesting revision to bid EXHIBIT F: Othello's Elevated Lead Screening, 10/7/22 EXHIBIT G: CDC Press Release Lowering Blood Lead Reference in Children to 3.5 ugl/DL EXHIBIT H: Full County Lead Investigation Report EXHIBIT I: Excerpts of County Lead Investigation Report pertaining to windows EXHIBIT J: Rejected Bid from House Doctor Innovation to replace every window (33 total) EXHIBIT K: Initial bid from Greentree proposing 6 vinyl window replacement EXHIBIT L: Initial Certificate of Appropriateness (COA) Application EXHIBIT M: Revised Bid from Greentree, proposing 6 "wood -clad" aluminum window replacements EXHIBIT N: Denial of COA by HPC