05-12-08 Common Council Minutes - Laserfiche WebLink

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REGULAR MEETING MAY 12, 2008 A roll call vote by the City Clerk shall be taken on a properly made motion and second either sustaining the action of the HPC or overruling their decision. Reasons for the motion shall be articulated in the record. Mr. Robert E. Rodes, Jr., Attorney at Law, 320 Law Bldg., Notre Dame, Indiana, represented the petitioner Georges Enderle and Xiaohui Ma, husband and wife. Mr. Rodes advised that this appeal is from the denial by the Historic Preservation Commission of Application #3008-0214 for a Certificate of Appropriateness regarding the petitioner’s home at 710 Park Avenue, South Bend. He stated that this appeal turns on questions of law, as to which the Standard of Review is de novo. He stated that the issue is whether the Commission has authority to deny a Certificate of Appropriateness for a treatment of windows that will improve the comfort and energy efficiency of the house without its external appearance. Mr. Rodes stated that the home is located at 710 Park Avenue and is occupied by the petitioner as their home. He stated that the home is designated an historic landmark, and is located within the Chapin Park Historic Preservation District. During the winter of 2005-2006, the petitioner’s became convinced that for comfort and for saving on fuel costs certain of their windows should be fitted with double glazing inset of the single panes of glass currently in place. Accordingly, beginning in August, 2006, they entered into discussions with the Commission staff to seek a Certificate of Appropriateness for the project. After some months of discussion, it appeared that no agreement could be reached, so the petitioners filed application #2007- 1107 without staff approval. That application was voted on inconclusively at the November, 2007 meeting of the Commission. It was continued through the December, 2007 meeting at the petitioner’s request, because one of the Commissioners had suggested an alternative that seemed worth exploring. It was taken up at the January, 2008 meeting, at which yet another alternative was brought forward. Counsel for Applicants agreed to a further continuance so that an alternative could be considered. On the basis of that consideration, Applicants filed their Application #2008-0214, embodying the new alternative. Mr. Rhodes stated that the Commission did not formally adopt a statement of reasons for the denial. Rather, the members stated their reasons individually. The reasons were summed up by Ms. Hostetler, the Director of the Commission, she stated, “First and Foremost is the Commission’s rationale that these windows “can be restored and reused in place.” And then went on to state that “The consensus among the Commissioners is that these windows can be repaired and should not be replaced with modern materials.” Mr. Rodes noted that the Commissioners, in giving their reasons, made no claim that the proposal would affect the appearance of the house from the street. Mr. Rodes advised that this building is subject to the Commission’s Preservation Standards for Group B Landmarks. The proposed work is a “treatment” within the language of those standards: “Treatment shall be defined as any change of surface materials that will not alter the style or original form.” The applicable standard says “A treatment change of any surface… may require a Certificate of Appropriateness if it significantly alters the appearance of the landmark.” The Applicants’ proposed treatment does not significantly alter the appearance of the house. Mr. Rodes also stated that the building is of course also subject to the Commission’s Guidelines for the Chapin Park Historic District, which calls for leaving original windows exactly as they are unless they are deteriorated beyond repair. Mr. Rodes stated that the petitioner concedes that what they propose to do is inconsistent with the requirements embodied in this language of the Guidelines. It is the petitioners’ position that these requirements exceed the authority of the Commission. Mr. Rodes stated that the denial of this application is inconsistent with Section 21-13.02(f)(1) of the Municipal Code which says that the Historic Preservation Commission may adopt only those standards necessary to prevent such alteration which is not in keeping with the purpose and intent of this article. The purpose and intent are not specifically stated, but they can be inferred from Section 21-13.02(e)(5)(B)(1), which requires the Commission in deciding on an application for a Certificate of Appropriateness to consider: Appropriateness of the proposed…alteration…to the preservation of the historic landmark, specifically, and/or the Historic Preservation District, generally. That is, the Commission is to take into account the general character of the building, if it is a historic landmark, and the general ambience of the district, whether or not the building is a historic landmark. This language does not authorize the Commission to limit 21