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REGULAR MEETING MAY 12, 2008
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<br />homeowners to nineteenth century technology. Mr. Rodes stated that this interpretation
<br />is supported by Section 21-13.02(f)(2), which limits the authority of the Commission to
<br />“exterior features.” According to The American Heritage Disctionary, a “feature” is
<br />“The make-up, shape, proportions, form, or outward appearance of something,” or “Any
<br />prominent or distinctive aspect, quality, or characteristic.” Other meanings of the term,
<br />such as those pertaining to faces or showings of films, are not relevant here. Given this
<br />definition, it stands to reason that work the Commission is authorized to prevent must at
<br />least involve a change in the outward appearance of a building, or in some prominent or
<br />distinctive aspect of it. Mr. Rodes stated that similarly, Section 21-13.02(d)(5)(D)(ii),
<br />gives interim protection to a potential historic landmark only against “Conspicuous”
<br />alteration. Mr. Rodes stated that if the Council, in enacting the Ordinance, had intended
<br />to forbid inconspicuous alterations of designated historic landmarks, it would not have
<br />allowed such alterations while the designation was pending. The Commission itself
<br />apparently adopted this interpretation of the Municipal Code when it limited the
<br />application of its Group B Landmark Standard to treatment the “significantly alters the
<br />appearance of the landmark.” Mr. Rodes stated that it is clear that the work proposed in
<br />this application will not affect the historical and architectural character of the house, and
<br />that it will not be obviously incongruous with the Chapin Park District. Mr. Rodes noted
<br />that Municipal Code Section 21-13.02(e)(5)(B)(iii) requires the Commission to consider
<br />“the potential hardship that the denial of a certificate of appropriateness would cause the
<br />applicant.” Mr. Rodes concluded with that during the lengthy discussion of different
<br />proposals for these windows, a number of alternative ways of improving the comfort and
<br />energy efficiency of the house were considered. None was satifactory, and one was
<br />relied on by any of the Commission members in stating their reasons for denying this
<br />application. Mr. Rodes stated that if it is a hardship to live with nineteenth century
<br />windows and twenty-first century heating costs, it is one the Commission is willing to
<br />have petitioners undergo.
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<br />Mr. Lawrence J. Meteiver, Assistant City Attorney, City of South Bend, Attorney for the
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<br />Historic Preservation Commission of South Bend and St. Joseph County, 14 Floor
<br />County-City Building, 227 W. Jefferson Blvd., South Bend, Indiana
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<br />Mr. Meteiver advised that at its meeting of February 14, 2008, the Historic Preservation
<br />Commission of South Bend and St. Joseph County (HPC), after hearing extensive
<br />evidence and conducting a lengthy deliberation, voted unanimously to deny the owner’s
<br />application for a Certificate of Appropriateness for “Four wood ‘tilt-pacs’, double hung
<br />(Marvin) in the bay area” for the property located at 710 Park Avenue, South Bend. The
<br />HPC urges the Council to affirm its decision, because the HPC had full authority to take
<br />the action that it took and because the HPC’s action was not arbitrary, capricious or an
<br />abuse of its discretion. The HPC acted rationally, and in accordance with applicable
<br />standards and guidelines. Mr. Meteiver stated that there are three issues: 1. Does the
<br />HPC have the jurisdiction to take the action it took. 2. Was the action taken by the HPC
<br />contrary to law? 3. Was the action taken by the HPC arbitrary and capricious and so
<br />unsupported by the evidence that no rational commission member should have voted for
<br />the action. Mr. Meteiver stated that the HPC was established by local ordinance adopted
<br />by the Council prior to 1977, pursuant to the State Statute existing at the time of the
<br />adoption of the local ordinance. The current State Statute provides: If before July 1,
<br />1977, a unit established by ordinance a commission for the purpose of historic
<br />preservation, that commission may continue to operate, regardless of whether that
<br />ordinance is subsequently amended or is consistent with this chapter.” I.C. 36-7-11-2(a).
<br />There can be no challenge to this existence of the HPC. Mr. Meteiver advised that the
<br />local ordinance gives the HPC the authority to establish standards for the preservation of
<br />structures within historic districts and particularly, the historic landmarks within those
<br />districts. The ordinance provides that the HPC has the power and the duty to establish
<br />reasonable and just standards for the preservation of historic landmarks and Historic
<br />Preservation Districts, including architectural treatment, site development requirements,
<br />and provisions concerning construction, reconstruction, alteration, demolition or removal
<br />of any building or structure, or parts thereof, Provided, however, that: The Historic
<br />Preservation Commission may adopt only those standards necessary to prevent such
<br />construction reconstruction, alteration, demolition, or removal which is not in keeping
<br />with the purpose and intent of this article; and such standards shall be applicable only to
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