HomeMy WebLinkAbout01-14-2016 Historic Preservation CommissionIowa City Historic Preservation Commission
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IOWA CITY HISTORIC PRESERVATION COMMISSION
Thursday, January 14, 2016
NDS Conference Room
2nd Floor
City Hall, 410 E. Washington Street
5:30 p.m.
A) Call to Order
B) Roll Call
C) Public discussion of anything not on the agenda
D) Certificate of Appropriateness
1. 920 Dearborn Street— Dearborn Street Conservation District (window, door, and deck
alterations)
E) Report on Certificates issued by Chair and Staff
Certificate of No Material Effect — Chair and Staff review
1. 721 E. College Street — College Green Historic District (garage siding repair and
replacement)
2. 314 S. Summit Street — Summit Street Historic District (porch repair)
3. 607 Grant Street — Longfellow Historic District (roofing replacement)
4. 636 S. Governor Street — Governor -Lucas Street Conservation district (deck replacement)
Minor Review — preapproved item — Staff review
728 Rundell Street — Longfellow Historic District (front door replacement)
F) Review of By-laws and Procedures
G) Report on 2015 Historic Preservation Awards
H) Consideration of Minutes for December 10, 2015
I) Adjournment
Staff Report December 31, 2015
Historic Review for 920 Dearborn Street
District: Dearborn Street Conservation District
Classification: Noncontributing
The applicant, Mark Redmond, is requesting approval for a proposed kitchen and bathroom remodel project
and deck reconstruction at 920 Dearborn, a noncontributing property in the Dearborn Street Conservation
District. The project consists of remodeling the interior of a previous addition so that exterior windows and a
door must be relocated or removed.
Applicable Regulations and Guidelines:
4.0 lows City Historic Preservation Guidehnes forAlteffitions
4.3 Doors
4.11 Siding
4.13 Windows
5.0 Guidelines for Additions
5.2 Decks and Ramps
staff Comments
This one and one-half story gable roof house features a projecting front gable wing and a projecting gabled
entry. There is a small gable addition to the side and a shed roof addition and shed roof dormer addition on
the back of the house. Windows throughout are double hung vinyl and the home has vinyl siding. A newer
double car garage is located in the rear of the lot. The house appears to date circa 1945-1950 and may be
referred to as a Minimal Traditional house, blending the feeling of the 1920s period cottages and the very
simplest type of post -WWII ranch.
The applicant is proposing to remodel the kitchen and bathroom and remove the existing deck and replace it
with a larger deck. The windows on the north and south ends of the rear addition would be removed. The
current back door would be removed and the opening filled in and sided to match the existing. A new half-
lite steel Waudena door will be located on the north end of the existing rear addition facing the garage. On
the east or rear side of the existing addition, one of the three windows would be removed, leaving the pair of
windows on the north side to allow for a bath and laundry area. The openings of the removed windows
would be sided to match the existing vinyl siding.
The guidelines recommend that for noncontributing properties in conservation districts, if a window opening
is to be closed on a framed structure, appropriate siding that matches the existing should be used with its
members being placed across and randomly extended beyond the opening. If windows are relocated, it should
not detract from overall fenestration patterns. Synthetic siding use on noncontributing properties in
conservation districts will be evaluated on a case -by -case basis. Siding for additions should be encouraged
which will not further degrade the property. It is recommended to add new door openings that are trimmed
to match the other doors and windows in the building.
Decks should be located on the back of a primary building, opposite the street -facing fagade and set in from
the side walls at least 8 inches. Railings and balusters visible from the street must be painted or stained. Deck
railing design is illustrated in the guidelines and their review, individually, is a minor review that does not need
to go to the full commission.
In Staffs opinion, this renovation is mostly interior. The home is non-contributing so matching the existing
vinyl siding seems most appropriate. The removal of three windows and the relocation of the door are all on
the exterior and will not impact any window location pattern. While the removed door, which will be replaced
with a steel door, is original, it is not visible, is on the back of the house, and replacing it will not have a
negative impact on a house that is already non-contributing for reasons beyond the vinyl siding and windows.
The deck will follow the setback and railing design guidelines.
Recommended Motion
Move to approve a Certificate of Appropriateness for the project at 920 Dearborn Street, as presented in the
staff report.
Application foi• Historic Review
Application for alterations to the historic landmarks or
Properties located in a historic district or conservation district
Pursuant to Iowa City Code Section I4.4C. Guidelines for
the Historic Review process, explanation of the process and
regulations can be found in the Iowa City Historic
Preservation Handbook which is available in the
Neighborhood and Development Services office at City Hall
or online at: www.icgov.org/HPhandbook
For Staff ]use:
Date submitted: I/ li 11�
❑ Certificate of No material Effect
❑ Certificate of Appropriateness
❑ Me)orreview
❑ Intermediate review
❑ Miinorreview
The HPC does not review applications for compliance with building and zoning codes. Work must
comply with all appropriate codes and be reviewed by the building division prior to the issuance of a
building perinit.
Meeting Schedule: The HPC meets the second Thursday of each month. Applications are due in the office of
Neighborhood and Development Services by noon on Wednesday three weeks prior to the meeting. See
attached document for application deadlines and meeting datos.
101
Property Owner Name:
Email: —jAakr
Address: o'q 3 8
icant Information
Contact pawn)
Phone Number: ($1,3) svo -lyb`i
City: _ '&rl Q State:Zip Code: 5
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Contractor / Consultant Name: 5
Email; Phone Number:( )
Address;
Chr State: Zip Code:
Proposed Project Information
Address: a M
Use of Property: ri;cDate Constructed (if known):
toDesignation
(Maps ere loested iathe Ru micp,,w aeon Fh,%D k)
This Property is a local historic landmark
OR
91 This Properly is within a historic or conservation district (choose location):
❑ Brows Street Historic Diskiot El Clink Street Coasscystioo District
❑ College Oman Historic District ❑ Collega Hi11 Conservation Dlatriat
❑ East College Street Historic District J� Dearborn Shea Conservation District
❑ LongBellow Historic Dishier ❑ poowtown / Horace Mann Conservation District
ElNorthside Historic District ❑ LrovemorrI.ucas Street Conservation District ��'b`_
O Summit Street Historic District r11
❑ Woodlawn Historic District
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Within the districS this Property is classified as: 3'
11 Comnlmtimli 13 Nonwmn'buting 13 Nonhistoric
Application Requirements
Choose appropriate project type. In order to ensure application can be processed, please include all listed materials.
Applications without necessary materials may be rejected.
Q Addition
UnicallY Projects entailing an addition to the building fbolprbrt such as a room, porch, dear, etc.)
❑ Building Elevations ❑ F1oorPhas ❑ Phorographs
❑ Product Information ❑ site Plam
Alteration
(Typically projects entailing work such as siding and window replacement, skylights, window opening slteratians, deck or porch
replacemantfconsnuction, baluster repair, or similar. If the project is a minor alteration, pbomgraphs end drawings to describe the
scope of the project are sufficient)
❑ Building Elevations ,RI Photographs ❑ Product Information
❑ Construction of new building
❑ Building Elevations ❑ FloorPlans ❑ Photograpbs
❑ Product Information ❑ site Plans
❑ Demolition
(Projects entailing the demolition of a primary sb ucMe or outbuilding, or my portion of a building, such as porch, chimney,
dwaratm trier, baluster, eta)
❑ Photographs ❑ Proposal ofPuturePIM
❑ Repair or restoration of an existing structure that will not change its appearance.
❑ PboLogrephc ❑ Product Information
❑ Other:
Please contact the Preservation Planner at 356.5243 for materials which need to be included with application.
Proposed Project Details
Project Description:
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d CITY OF I O WA CITY
' ' ';' EM RANDUM
Date:
January 8, 2016
To:
Historic Preservation Commission
From:
Ginalie Swaim, Chair
Re:
Meeting Procedures
We have had some recent cases that included considerable input from neighbors and other
interested parties (for example the demolition request for 610 Ronalds Street). We currently do
not have written procedures for how such input is received by the Commission. To help
improve the flow and efficiency of future Commission meetings I suggest that we review our
bylaws and establish written procedures for how we conduct our meetings.
The Planning and Zoning Commission has adopted meeting procedures (see attached
"Planning and Zoning Commission Procedures for Public Discussion") that may serve as a
model for our commission. The Historic Preservation by-laws and Planning and Zoning by-laws
are included for your review and comparison. Articles VI and VII of the P&Z by-laws are not
applicable to the Historic Preservation Commission and are therefore not represented by similar
Articles in the HP by-laws. Please make note of this if you compare the two.
The National Trust for Historic Preservation's "Procedural Due Process in Plain English" is also
include in you packet.
I would like to discuss these documents at our January meeting with the goal of identifying
appropriate updates to our bylaws and procedures.
Planning and Zoning Commission
Procedures for Public Discussion
To ensure that interested parties have adequate time to address the Commis-
sion and that discussion can proceed in a timely manner regarding issues
before the Planning and Zoning Commission, it is the intent of the Commission
to observe the following procedure.
After introducing the item for discussion, the Chairperson of the Commission
will:
1.Ask the City planners for a staff report.
2.Ask for questions from members of the Commission to the City staff.
3.Ask the applicant if they would like to present information.
4.Open the issue for public discussion:
A.Each speaker is asked to limit their comments to five minutes.
B.After everyone who wishes to has spoken, a second round of
discussion may be held. Each speaker is asked to limit their
comments to two minutes.
5.Close public discussion and ask the Commission members for the appropriate
motion.
6.Moderate Commission discussion and call for the vote.
General Information:
1.Questions regarding the issue under, discussion should be addressed to the
Chairperson.
2.Speakers are asked to approach the podium, give their name and address,
print their name and address on the form provided, and speak into the
microphone.
3.The Chairperson may place time limitations on application presentations or
total time for public discussion.
Thank you for your cooperation.
Public involvement is the cornerstone of good government.
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BY-LAWS
IOWA CITY HISTORIC PRESERVATION COMMISSION
ARTICLE I.
MEETINGS
Section 1. Regular Meetings. Regular meetings of this Commission shall be held once each month.
In addition, a date and time shall be reserved for a second meeting each month for the purpose of
reviewing Certificate of Appropriateness applications. If no applications are filed for review at the
second meeting, the meeting need not occur.
Section 2. Special Meetings. Special meetings of the members may be called by the Chairperson
and shall be called by the Chairperson's at the request of three or more members of the
Commission.
Section 3. Place of Meetings. Regular meetings shall be in the City Hall or other appropriate
meeting place in Iowa City, Iowa. Should these places be unavailable, another meeting place shall
be selected.
Section 4. Notice of Meeting. Notice and agenda for all regular meetings shall be distributed to all
members of the Commission and the press. Special meetings may be called upon notice to all
members of the media at least 24 hours before a special meeting is held. All provisions of the State
Open Meetings Law shall be followed.
Section 5. Quorum. A majority of the members of the Commission shall constitute a quorum at any
meeting and a majority of votes cast at any meeting at which a quorum is present shall be decisive
of any motion or election.
Section 6. Proxies. There shall be no vote by proxy.
Section 7. Public Discussion. Time shall be made available during all regular meetings for open
public discussion.
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MEMBERSHIP
Section 1. Membership. The Historic Preservation Commission shall consist of one representative
from each historic district and four members selected at -large. The Chairperson and Vice -
Chairperson will be elected annually by the Commission members. All members shall be qualified
electors of the City of Iowa City, Iowa, and shall serve as members without compensation, but shall
be entitled to the necessary expenses, including travel expenses, incurred in the discharge of their
duties.
Section 2. Nomination. The City Council shall appoint members to the Historic Preservation
Commission as vacancies occur. If a position/appointment becomes vacant by reason of resignation
or otherwise and results in an unexpired term, the Council may choose to fill the unexpired term in
such a manner that the appointee shall continue in the position not only through the unexpired term
but also through a subsequent regular term.
Section 3. Terms. Members shall be appointed for three-year terms. All terms expire March 29 and
no more than four terms may expire in any given year.
Section 4. Absences. Three consecutive unexplained absences of a Commission member may
result in a recommendation to the Mayor from the Commission to discharge such member and
appoint a new Commission member.
Section 5. Orientation for New Members. Prior to the first regular meeting following their
appointment, new members shall be provided with copies of the pertinent portions of the City Code,
Historic Preservation Commission By-laws, and other documents that would be useful to
Commission members in carrying out their duties.
OFFICERS
Section 1. Number. The officers of this Commission shall be a Chairperson and Vice -Chairperson,
each of whom shall be elected by members of the Commission.
Section 2. Election and Term of Office. The officers of this Commission shall be elected annually.
Section 3. Vacancies. A vacancy in either office shall be filled by Commission members for the
unexpired portion of the term.
Section 4. Chairperson. The Chairperson shall, when present, preside at all meetings of the
members, appoint committees, call special meetings and in general perform all duties of the
Chairperson and such other duties as may be prescribed by members from time to time.
Section 5. Vice -Chairperson. In the absence of the Chairperson or in the event of death, inability or
refusal to act, the Vice -Chairperson shall perform the duties of the Chairperson and when so acting
shall have all the powers of and be subject to all the restrictions upon the Chairperson.
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CONDUCT OF COMMISSION AFFAIRS
Section 1. Agenda. The Chairperson or a designated representative, together with appropriate
members of the City staff, shall prepare an agenda for all regular Commission meetings. Agendas
are to be sent to Commission members, the City Council and the media at least three days prior to
the regular meetings.
Section 2. Secretary. A secretary, not to be a Commission member, shall be provided for all regular
and special meetings.
Section 3. Minutes. Minutes of all regular and special meetings are to be prepared and distributed to
Commission members and approved by the Commission prior to being sent to City Council, in the
manner prescribed by the Council. Specific recommendations for the Council are to be set off from
the main body of the minutes, and appropriately identified.
Section 4. Policies and Programs. Periodically, the Commission shall review the policies and
programs of the City relating to historic preservation, and make such recommendations to the City
Council as are deemed appropriate.
Section 5. Referrals from Council. From time to time letters, requests for information, requests for
recommendations, and other matters are referred to the Commission by the City Council. The
Commission shall initiate the consideration of such items at the next regular meeting following
receipt, and shall notify Council of its disposition.
Section 6. Attendance at Council Meetings. The Commission Chairperson or designated
representative are to be in attendance at all City Council meetings, including informal sessions, at
which matters pertaining to the Commission are to be discussed or when actions concerning the
Commission's responsibilities are to be taken. The Commission's Chairperson is to receive Council
agenda prior to each Council meeting, and is to be otherwise notified of meetings involving
Commission business.
Section 7. Annual Report. An annual report, detailing the activities of the Commission, shall be
prepared by the Chairperson, approved by the Commission, and submitted to the City Council.
Section 8. Liaison with Planning and Zoning Commission. At such time as the Commission
undertakes any business which is deemed pertinent to the activities of the Planning and Zoning
Commission, the Planning and Zoning Commission shall be so notified, and may send a
representative to the next meeting of the Historic Preservation Commission to act as a liaison
between the two Commissions.
Section 9. Ex parte Contacts. A member who has had a discussion of an agenda item outside of a
public meeting with an interested party shall reveal the contact prior to staff report, naming the other
party and sharing specifics of the contact, copies if in writing or a synopsis if verbal. Provided,
however, that in ruling upon applications for certificates of appropriateness, the Commission is
acting in a quasi-judicial capacity. In these maters, ex parte communications item outside of a public
meeting between members of the Commission and parties or persons with a personal interest in the
application should not occur, in accordance with Rodine v. Zoning Board of Adjustment of Polk
County, 434 N.W. 2d 124 (1988).
Section 10. Design Review Subcommittee. The Commission shall have the authority to establish a
historic preservation design review subcommittee to review and make recommendations to the
Commission regarding applications for certificates of appropriateness. Said subcommittee shall
consist of three members of the Commission, appointed annually by the Commission, to serve one
year terms.
ARTICLE V.
AMENDMENTS
Section 1. These by-laws may be altered, amended or repealed and new by-laws may be adopted
by the members at any regular meeting or at any special meeting called for that purpose.
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BY-LAWS
Iowa City Planning and Zoning Commission Ctrs k�qk�'� I
ARTICLE I. AUTHORITY:
The Iowa City Planning and Zoning Commission shall have that authority which Is conferred by
Chapter 414 of the Code of Iowa, Section 14-4A, City Code, City of Iowa City, Iowa and through
the adoption of these by-laws stated herein.
ARTICLE II. PURPOSE:
The purpose of the by-laws stated herein is to provide for the general welfare of the citizens of
Iowa City by establishing a Planning and Zoning Commission to advise the City Council on all
matters pertaining to the physical development and the Comprehensive Plan of Iowa City.
ARTICLE III. MEMBERSHIP:
Section 1. Qualifications. The Planning and Zoning Commission shall consist of seven (7)
members appointed by the City Council. All members of the Commission shall be qualified
electors of the City of Iowa City, Iowa.
Section 2. Compensation. Members shall serve without compensation, but may be reimbursed
for expenses incurred for travel outside the city on designated Commission business. Such
expenses must be submitted to the City Manager.
Section 3. Orientation for New Members. Prior to the first regular meeting following their
appointment, new members shall be provided with copies of the City Zoning Chapter and
subdivision regulations, by-laws, and other documentation that would be useful to Commission
members in carrying out their duties. They shall also be given an orientation briefing by the City
staff and the Commission as is doomed appropriate,
Section 4. Absences. Three consecutive unexplained absences of a Commission member from
regular formal meetings may result in a recommendation to the City Council from the Commission
to discharge said member and appoint a new Commission member.
Section 5. Vacancies. Any vacancy on the Commission because of death, resignation, long-term
illness, disqualification or removal shall be filled by the City Council after at least 30 days public
notice of the vacancy.
Section 6. Terms. Members shall be appointed for terms of five years, with tenns expiring on
May 1. Not more than one-third of the terms may expire in any one year. If a position becomes
vacant by reason of resignation or otherwise, and results in an unexpired term of six months or
less, the Council may choose to fill the unexpired term in such a manner that the appointee shall
continue in the position not only through the unexpired term, but also through a subsequent
regular term.
Section 7. Resignations. Resignations should be submitted In writing to the Mayor with a copy to
the City Manager, Director of Planning and Community Development and Chairperson of Planning
and Zoning at least 60 days prior to the date of intended departure.
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ARTICLE IV. OFFICERS:
Section 1. Number. The officers of this Cornmisslon shall be a Chairperson, Vice -Chairperson,
and Secretary, ealoh of whom shall be elected by the members of the Commission.
Section 2. Election and Term of Office. Officers of the Commission shall be elected annually at
the first regular meeting in February each year, If the election of officers shall not be held at such
meeting, such election shall be held as soon thereafter as Is convenient
Section 3. Vacancies. A vacancy in any office because of death, resignation, removal,
disqualification or other cause shall be filled by the members for the unexpired portion of the term.
Section 4. Chairperson. The Chairperson shall, when present, preside at all meetings, appoint
committees, call special meetings and in general perform all duties Incident to the office of a
Chalmarson. and such other duties as may be prescribed by the mmembem from time to time.
Section 5. Vioe-Chairperson. In the absence of the Chairperson, or in the event of death,
inability or refusal to act, the Vice -Chairperson shall perform the duties of the Chairperson and
when so acting shall have all the powers of and be subject to all the restrictions upon the
Chairperson.
Section 6. SecretsN. The Secretary shall have the responsibility of insuring that the
Commission's minutes are accurate and are circulated as prescribed; The Secretary, in the
absence of the Chairperson and Vice -Chairperson, shall perform the duties of the Chairperson
and when so acting shall have all the powers of and be subject to all the restrictions upon the
Chairperson.
ARTICLE V. MEETINGS:
Section 1. Regular Meetings, Regular formal meetings of this Commission shall be held twice
monthly whenever possible.
Section 2. Special Meetings. Special meetings of the members may be called by the
Chairperson and shall be called by the Chairperson or Vice -Chairperson at the request of three or
more members of the Commission.
Section 3. Place of Meetings. Regular formal meetings shall be in a place accessible to persons
with disabilities.
Section 4. Notice of Meetings. Notice of regular and special meetings shall be required; meetings
may be called upon notice riot less than twenty-four (24) hours before the meetings. The news
media shall be notified by staff as required under Section 14-6U, City Code.
Section 5. Quorum. A majormty of the members of the Commission shall constitute a quorum at
any meeting.
Section 6. Proxies. There shall be no vote by proxy.
Section 7. Public Discussion. Time shall be made available during all regular formal meetings for
open public discussion.
Section 8. Motions. Motions may be made or seconded by any member of the Commission
except the Chairperson.
Section 9. Exparte Contacts. A member who has had a discussion of an agenda item outside of
a public meeting with an interested party shall reveal the contact prior to staff report, naming the
other party and sharing specifics of the contact, copies if in writing or a synopsis if verbal.
Section 10. Conflict of Interest. A member who believes they have a conflict of interest on a
matter about to come before the Commission shall'state the reason for the conflict of interest,
leave the panel of Commissioners before the discussion begins, shall not participate in the
discussion and may return to the panel after the vote.
Sactlon 11. Votinc. A maority (but not less than three) of votes cast at any meeting at which a
quorum is present shalt be decisive of any motion or election. A two-thirds vote of the members of
the Commission present or not less than four votes shall be required In consideration of a
substantial amendment to the Zoning Chapter and the adoption of the Comprehensive Plan or
part or amendment thereof.
Upon request, voting will be by roll call and will be recorded by yeas and nays. Every member of
the Commission, including the Chairperson, is required to cast a vote upon each motion. A
member who abstains shall state the reason for abstention.
Section 13. Roberts Rules of Order. Except as otherwise provided herein, Roberts Rules of
Order as amended shall be used where applicable.
ARTir E VI. POWERS AND DUTIES:
The City Planning and Zoning Commission, in addition to the powers conferred by Chapter 414 of
the Code of Iowa, possesses the following powers established by Section 14-4A, City Code, City
of Iowa City, Iowa:
Section 1. To make such surveys, studies, maps, plans or plats of the whole or any portion of the
City and of any land outside thereof, which in the opinion of such Commission bears relation to
the Comprehensive Plan, and shall submit such plan to the Council with its studies and
recommendations and it may publish the same.
Section 2. To make recommendations for the location of public buildings, bridges, viaducts,
street fixtures, public structures or appurtenances and the sites therefor, and the location or
erection of statuary, memorials or works of art in public places.
Section 3. To make recommendations upon plans, plats, or replats of subdivisions or
resubdivisions in such city which show streets, alleys or other portions of the same intended to be
dedicated for public use.
Section 4. To make recommendations for street, park, parkway, boulevard, traffic way or other
public improvements, or the vacation thereof.
Section 5. To carry on comprehensive studies of present conditions and the future growth of
such city in order to guide and accomplish a coordinated, adjusted and harmonious development
of such city in accordance with the. present and future needs thereof to the end that the heafth,
safety, order, convenience, prosperity and general welfare may be promoted.
Section 6. To conduct public hearings upon the adoption of such comprehensive plan or any
amendment thereto
Section 7. To prepare a zoning ordinance regarding the height, number of stories and size of
buildings and other structures; the percentage of ground that may be occupied; the size of yards,
courts and other open spaces; the density of population, and the location and use of buildings,
structures, and land for trade, industry, residence, or other purposes and to this and shall prepare
a preliminary report and hold public hearings thereon and after such hearings have been held, to
submit its final report and recommendations to the City Council.
Section 8. To recommend to the City Council, from time to time, as conditions require,
amendments, supplements, changes or modifications in the comprehensive plan prepared by it.
Section 9. To do all things necessary or advisable in order to carry out the intent and purpose of
this article and all other ordinances relating to the state as they now exist or as the same may be
hereafter amended or supplemented.
ARTICLE VII. HEARINGS:
Section 1. Comprehensive Plan. Before the adoption or amending of any part of the
Comprehensive Plan, the Iowa City Planning and Zoning Commission shall hold at least one
public hearing thereon, notice of the time of which shall be given by one publication in a
newspaper of general circulation in the municipality, not less than seven days or more than 20
days before the date of hearing. After adoption of said plan by the Commission, a copy shall be
forwarded to the Council. If the plan, or any modification or amendment thereof, shall recelve the
approval of the Council, the plan, until subsequently modified or amended as authorized by this
section, shall constitute the official city plan of Iowa City. After the City Council has adopted all or
part of the Comprehensive Plan, the Planning and Zoning Commission shall:
(a) Investigate and make recommendations to the City Council upon reasonable and practical
means for putting into effect the Comprehensive Plan in order that it will serve as a pattern
and guide for the orderly growth and development of the city. The measures
recommended may include plans, regulations, programs, financial reports and capital
budgets.
(b) Prepare a biannual report to the City Council on the status of the plan and progress on its
implementation.
(c) Endeavor to promote public interest in and understanding of the comprehensive plan and
regulations relating to it.
(d) Consult with and advise public officials and agencies, public utility companies, and civic,
educational, professional and other organizations, and citizens generally, on the
Implementation of the provisions of the Comprehensive Plan.
ARTICLE Vill. CONDUCT OF COMMISSION BUSINESS:
Section 1. Agenda. The Chairperson, or a designated representative, together with staff
assistance shall prepare an agenda for all regular Commission meetings. Agendas are to be
posted at least 24 hours before the meeting and shall be sent to Commission members and the
media prior to regular formal meetings. Copies will be available to the public at the meeting.
Section 2. Minutes. Minutes of all regular formal meetings are to be prepared and distributed to
Commission and City Council members. Speck recommendations requiring Council action are to
be set off from the main body of the minutes and appropriately identified.
Section 3. Review Policy. The Commission shall review all policies and programs of the City,
relating to the Commission's duties as stated herein, and make such recommendations to the City
Council as are deemed appropriate.
Section 4. Referrals from Council. From time to time letters, requests for information, requests for
recommendations, and other matters are referred to the Commission by the City Council. The
5
Commission will initiate consideration of each item at the next regular Commission meeting and
shall notify Council of its disposition.
Section 5. Attendance at Council Meetings. The goal of the Commission is to have at least one
representative at each regular formal. meeting of the City Council. It is the responsibility of the
Chairperson to designate the method by which this goal is achieved. The Chairperson or
designated representative may also be requested to attend informal Council sessions at which
matters pertaining to the Commission's responsibilities are to be discussed.
Section 6. Annual Report An annual report detailing the activities of the Commission shall be
prepared by the Chairperson, approved by the Commission, and submitted to the City Council.
ARTICLE iX. SUBCQMMITTEES:
The subcommittees of this Commission Including composition, duties, and terms shall be
designated by the Chairperson.
ARTICLEX. AMENDMENTS:
These by -fawn may be altered, amended or repealed, and new by-laws adopted by an affirmative
vote of not less than four members of the Commission at any regular meeting or at any special
meeting called for that purpose. Amendments shall be approved by the Council to become
effective.
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PROCEDURAL DuE PROCES
in Plain English
A GUIDE FOR PRESERVATION COMMISSION
BnADFonn J. Wmu
PAUL W. ftmomsm
NATIONAL TRUST FOR HISTORIC PRESERVATION
This publication was produced as a result of the Procedural Due Process Project, a cooperative
project of the following organizations:
National Trust for Historic Preservation
National Park Service, U.S. Department of the Interior
National Alliance of Preservation Commissions
National Center for Preservation Law !
University of Virginia School of Law
Funding for this project was provided by a grant from the National Park Service, U.S. Department o
the Interior and administered through the National Trust's Critical Issues Fund. The views expressed
herein do not necessarily represent those of the National Park Service.
Bradford J. White is Vice President of Clarion Associates Inc., a real estate consulting form with
Offices in Chicago and Denver. Paul W. Edmondson is Deputy General Counsel to the National Trust
for Historic Preservation, in Washington. Both Mr. White and Mr. Edmondson have written and
lectured extensively on preservation law issues, and each provides advice and assistance ou
preservation law matters to government agencies, nonprofit preservation organizations, and others.
Kate Hermann Stacy; Deputy City Attorney for the City of San Francisco, and Robert L. Zoeckler,
Assistant City Attorney for the City of Atlanta, are both extensively involved in preservation law issue
at the local level. .
The authors and the National Trust wish to express their appreciation to the following individuals
who contributed significantly to this project:
Extensive research for this project was conducted by the following law students, each of whom
prepared papers on different issue areas within the broader topic of procedural due process:
Willcox Dunn, University of Virginia School of Law; Joseph H. Jones, Jr., Marshall-Wythe School of
Law, College of William and Mary; Melissa A. MacGill, Washington College of Law, The American
University; David Alan Meyer, Boston University School of Law
Additional advisors to this project included: Stephen N. Dennis, National Center for Preservation Law
Julia Hatch Miller; Edito; Preservation Law Reporter, National Trust for Historic Preservation;
Dorothy Mine; Counsel, New York Landmadis Preservation Commission; Stephen Morris, Preservatior
Planner, Interagency Resources Div., National Park Service; Katherine Raub Ridley, General Counsel
and Associate Director Preservation League of New York State; Gail Rothrock, National Alliance of
Preservation Commissions Larry Weng; Law Librarian, University of Virginia School of Law
The authors particularly wish to express their appreciation to Bridget D. Hartman, Director, Critical
issues Fund, National Trust for Historic Preservation, -who coordinated all work for the project, and
to Robert E. Stipe, Professor cf Design, North Carolina State University whose longstanding call for
better public Information on this issue served as the inspiration for the project.
Photos: WI), vii, 5, 35: NTHP audiovisual collection; 1, 13, courtesy New York Landmarh
Preservation Commission; iv(2) courtesy Maryland -Nat'l Capital Park & Planning Commission.
Copyright ® 1994, National Trust for Historic Preservation in the United States
1785 Massachusetts Avenue, N.W., Washington, D.C. 20036. Second Printing
CONTENTS
FOREWORD . ..................................... .
I. PROCEDURAL DUE PROCESS: AN OVERVIEW ................. .
II. THE LEGAL FRAMEWORK ...... ..................... .
A. The Constitution and the Courts ...................
B. A Practical Approach for Looking at Procedural Due Process
II. WHAT PROCESS IS DUE? .... ........................ .
A. Notice ...................................
General principles ...... . ... ........... . .. .
Special considerations .................. . ... .
B. The Public Hearing ...... . ................... .
Timing of hearing .............. . .......... .
Role of commissioners and staff ................ .
Role of preservation organizations .............. .
Swearing in of witnesses ..................... .
Cross-examination and rebuttal ................ .
Voting............................
"Sunshine acts" ............. I ..... I ... I .. .
Maintenance of a record ............... . ..... .
Role of the expert ......................... .
Role of counsel ........................... .
Timing of witnesses ........................ .
Relevancy of admitted information .............. .
Access to information prior to hearing ............ .
C. Record -Based Decisionmaking ................... .
Preparation of the record .................... .
Consistency in decisionmaldng ................. .
Minutes, recordings, and transcripts ............. .
D. Bias, Conflicts, and Other Complications ............ .
Bias...................................
Conflicts of interest ........................ .
Personal conduct ......................... .
Ex parte contacts ....................... . . .
Advisory commissions ....................... .
Ill. TEN TIPS FROM THE CITY ATTORNEY ................... .
experiment in democratic government has alwa
special sense of "fairness" — the idea that all c
to be treated equally before the law. This sense i
and equality are what the Fourteenth Amendment and equivalent provisions in
,^ constitutions are all about. Without these words, the Arnerisan Constitution -- i,
grand adventure itself — would be meaningless.
The concept of fairness or ,due process" embodied in the f
Amendment embraces two central Ideas. One is that the process of making laws wi
to everyone. The other is that in admi►dWering and enforcing the law, the;
empioyad will not only be open, but essentially neutral as well. In other wordy
`.^ not be passed without the knowledge of citizens sub}ect to them, and the prod
which they are enforced will be impartial ---- applicable equally to 0
Nowhere are these concepts more important than In the
administration, and enforcement of historic district,
" landmark, and other preservation regulations of local
and state governments. These are the principal tools by
which the owners of private property are specially
burdened with the task of preserving the heritage of the
urger socnety , ;.
But there is a difficult problem that arises from the increasing
use of these tools. In the ordinary situation, the enforcement of most regu
heavily on lawyers and judges familiar with legal processes and the special lar
law, On the other hand, local preservation ordinances are
increasingly administered by lay persons who, though
typically untutored in the Saw, are nonetheless field to its
very high standards of performance and accountability.
The courts have made it clear in case after case that the ba!
i fairness to be observed in administering our preservation regulations
a.
applicable to lay persons than to lawyers and judges. But these laws are
technical, sometimes almost to the point of unintelligibility, and the many lay
our historic district and landmarks commissions must often -times act like
judges, like it or not, quaiifled or not.
This pubkcation his been crafted in the hope of bringing
complex rules arising from the concept of "procedural due process" down to e
lay commission. it is essenriai that they take this essay seriously and conduce
according 10 the precepts set forth. The preservation of the American heritage
underlying democratic traditimts require no less.
I RUME EmU17ZjS
NATIONAL AUST FOR HI5rQttic PRESEBYATION.
PROFESSOR OF DEsiGN, N.C. STATC UNIVHRsrr
I. PROCEDURAL DUE PROCESS: AN OVERVIEW
pr
ERM "PROCEDURAL DUE PROCESS"short-hand for a set of legal andactical principles, derived from the
Constitution, court decisions, and state and
local statutory provisions, intended to en-
sure that government agencies at all levels-
-federal, state, and local —act fairly in
making decisions affecting the interests of
individual citizens. In the chapters that
follow, this publication sets out the basic legal framework that the
courts use in approaching procedural due process questions, as well
as specific guidance on topics that commonly arise in the context
of local ordinances granting regulatory powers to historic preserva-
tion commissions or review boards.
As the information in this publication is considered, it may be
useful to keep the following overview in mind:
1. "Procedural due process" refers to procedures designed to
safeguard individuals from arbitrary governmental action.
These procedures help to ensure that the substance of a
decision by a government agency or official is reasonable,
publicly accepted, and not susceptible to legal challenge. In
the preservation context, procedural due process includes the
need for notice of a commission action, the need for and type
of hearing required, and the procedures necessary for fair
and informed decisionmaking.
2. The baseline to look for procedural requirements are those
procedures imposed by statute —state enabling legislation,
preservation ordinances, state sunshine laws, administrative
procedure acts, and others. Because due process requirements
vary from state to state, these statutory sources —as well as
relevant case law from the state —must, be consulted in
determining what procedures apply in any given case.
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 1
3. It is the responsibility of each preservation com
establish and follow its own rules of procedure
the requirements of this statutory baseline, and that
those requirements as necessary to provide addition
satisfy constitutional and fairness requirements.
4. Property owners, neighbors, and interested meml
general public must be provided a reasonable opporl
heard on any matter considered by a preservation c
that affects their interests. There can be no opport
heard, however, without appropriate notice of an
action by a preservation commission. Therefore, p
commissions must provide reasonable notice of any
action to affected property owners, neighbors, other
parties, and the general public. Notice may it
individually mailed notice, (2) published notii
through local newspapers), and (3) posted notice
ly, the closer the distance a person is from a prop
consideration by a commission, the more appropri
use individually mailed notice. Notice should be
detailed so that the person receiving the notice unde
nature of the action the commission is considerin@
time, and place for any public hearing, and the c
for public participation.
5. A public hearing should he held prior to a c
action on a specific application or proposal. One e:
the case of interim controls, including preliminai
tions of historic properties, in which case tempos
tions on the use of property may be put into plac
final action by the commission on a nominated p
order to prevent demolition or significant alb
properties under consideration for protection.
6. Public hearings by preservation commissions must
out in a business -like manner, but need not
formality of trial -like hearings. Consequently, excel
particular jurisdiction may require it (consult
attorney), swearing -in of witnesses and formal cross
2 PROCEDUM DUE PROCESS IN PI
lion are generally.not required. Hearings should be open to
the public, consistent with state "sunshine acts," and
managed in a way that permits a meaningful opportunity for
interested parties to present their views and relevant informa-
tion. Commissions may use reasonable time limits and
other means to manage the conduct of the hearing, so long as
these requirements are applied even-handedly to all parties.
Above all, every participant in a public hearing has the right
to be treated fairly, and with respect.
7. A preservation commission's decision should adequately explain
the basis of the decision, with specific reference to infor-
mation in the record and the relevant standards and
criteria included in the preservation ordinance.
8. The commission should carefully record its actions through
written minutes. It is also advisable to maintain an audio
or video recording of commission meetings and hearings,
which can be transcribed as necessary (or as may be required
as a standard procedure by local practice).
9. The tenets of procedural due process require decisionmaking
by a fair and unbiased tribunal. Consequently, preservation
commission members should avoid even the perception of bias
or prejudgment in their conduct, particularly by avoiding
extraneous commentary during —or outside of —commission
meetings. Commission members should also be careful to avoid
conflicts of interest, or even the appearance of a conflict,
due to a personal, financial, or professional interest in the
subject matter of a proceeding (or with an interested party).
Where a potential conflict exists, advice should be sought from
a competent outside source, such as a city or municipal
attorney. If a conflict is found to exist, a commissioner may
not participate in the decisionmaking process.
10. A commission's decisions should be made on the basis of
information contained in the public record and available to all
interested parties. Ex parte contacts (private communi-
cations between an interested party and a commissioner on an
issue before the commission) should be prohibited.
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 3
11. Commission members should work closely with thi
municipal attorney to establish workable proce
particularly to ensure that any local or state -level w
procedural requirements are addressed and incorp
a commission's own rules of procedure.
4 PROcEDllRAL DUE PROCESS IN PL
II. THE LEGAL FRAMEWORK
nor shall any State deprive any person of life,
liberty, or property without due process of law. "
—U.S. Const. Amend. XfV
HE DUE PROCESS CLAUSE Of the FOUr-
teenth Amendment, and the Due
Process Clause of the Fifth Amend-
ment (which applies to the federal govern-
ment) together enshrine one of the most
fundamental concepts of American democra-
cy: that government agencies and officials
at all levels must act fairly in making
decisions that affect the rights of the indi-
vidual. The term "due process," as it has come to be interpreted
over the years, effectively stands as shorthand for a set of legal
principles designed to safeguard individuals from arbitrary govern-
mental action.
The various federal and state courts have recognized two
categories of protections as coming within the broad framework of
"due process." The first, 'procedural due process," refers to the
manner in which government decisionmaking is carried out. The
second, "substantive due process," addresses the rationality or rea-
sonableness of the substance of the decision. Thus, the Constitution
requires that both the process and the result of governmental
decisionmaking meet basic constitutional standards of fairness and
rationality. From a practical standpoint, however, careful attention
to the procedural aspects of decisionmaking—in the preservation
context, as in any other an help to ensure that the substance of
the decision is reasonable, accepted by the public, and likely to be
upheld if challenged in court.
What is "procedural due process"? The procedural protections
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 5
emanating from the Due Process Clause generally are co
cover three related subjects:
(1) the need for, and type of, notice required
governmental actions;
(2) the need for, and type of, hearing required; an
(3) the need for fair and informed decision
making.
What the Constitution may require for different types of g
tal actions, however, depends on the particular circ
involved. As remarked by Supreme Court Justice Thurgooc
"[wle have often noted that procedural due process mi
different things in the numerous contexts in which it a]
"Procedural
In the context of local historic preservation commi
due process
review boards, the issue of procedural due process may
as the following question:
means many
different
What rights do the various parties who may be inte
things in the
in either (1) the designation of a historic property i
the issuance of a permit relating to a designated pri
numerous con-
have in the decisionmaking process of the goverr
texts in which
agency responsible for those actions?
it applies::
From a constitutional standpoint, the answer to this qm
be found through application of an analytical franu
considers four separate factors (as described below). It i
to note, however, that many procedural requirement;
expressly set out in state or local laws, independent of tl
ments of the Constitution. Those statutory procedures m;
or less stringent than those required by the Constitution,
case must be followed. Another complicating factor is thg
often state -by -state differences in the way different court
the law in this area; these jurisdictional differences shoe
noted in determining how much "process" should be
any particular case.
6 PROCEDURAL DUE PROCESS IN PI
A. THE CONSTITUTION AND THE COURTS
From a legal standpoint, procedural due process, like many
other constitutional doctrines, may be described as a set of general
principles, the application of which depends on a balancing of
several different factors.
There are four basic factors considered by the courts in
determining which procedural standards apply to specific govern-
mental actions affecting the interests of private individuals. They
are: (1) the nature of the governmental action; (2) the nature of
the interest of the person in question; (3) the nature of the
interference by the proposed governmental action; and (4) the
nature of the government's interest in carrying out the action.
1. Wbat is the nature. of the governmental action
in question? Courts addressing, procedural due process issues
often make a distinction between two types of governmental actions:
those that are "legislative" in nature, and those that are considered
"adjudicative."
"Legislative" actions —those that involve the adoption of
general public policies —usually are not considered to require
extensive procedural protections for individual members of the
public. The reason for this is that the public process involved in
making legislative decisions itself addresses many fairness concerns,
because of the large number of persons affected, the openness of the
process, and the degree to which elected officials are directly
accountable to the public through the electoral process. Consequent-
ly, legislative actions are not generally subject to detailed hearing,
notice, or public participation requirements.
"Adjudicative" actions, on the other hand, usually involve the
application of previously -adopted policies to individual cases and
specific factual circumstances, and are more likely to pose questions
of fairness and impartiality. Consequently, such actions generally
require more extensive procedural protections for the individual.
Where do the actions of local preservation commissions and
review boards fit into this conceptual framework? The answer,
unfortunately, is not totally predictable —because of the different
ways in which preservation ordinances work, and because of
jurisdictional differences in case law from one state to another.
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH
Fi
51
P
d
tr
d
SI
P
al
w
01
01
di
fc
In the context of local preservation ordinances;
generally two different types of governmental actions.
action of designating a property, or a district of pri
historic. Second is a local preservation commission
board's action in considering a specific permit applicah
to a particular property, once that property has been
These actions are carried out in different ways by differe
nities. In some communities, for example, designation
the local legislative body (often after recommendation i
tion by a historic preservation commission); in other ca<.
It is advisable
preservation commissions are solely responsible for des!
to check with
Designations, particularly those made by a local
local counsel
body through the adoption of an ordinance, are more ]
considered to be legislative in character (meaning that
to find out
may expect less stringent procedural requirements). Ufl
how courts in
clear under state law, however, it is advisable to check
any given
counsel to determine whether designations (or the
jurisdiction are
formally recommending properties for designation) she
likely to
the stricter notice and hearing requirements that ma
"adjudicative"
proceedings. In any event, commissions i
characterize
making or recommending designations should establish b
the various
dures for notice and public participation to ensure that it
actions that
are publicly accepted as fair and reasonable.
may be taken
Commission actions on permit applications or cer
by the
appropriateness, as a general rule, are more likely to be
adjudicative, and subject to a higher level of procedur
preservation
ments. (This, as discussed below, does not usually mea
commission.
procedures.) Again, because of state -by -state variations,
able to check with local counsel to find out how courts it
jurisdiction are likely to characterize such permit actions
requirements may flow from that characterization in th,
2. Wbat is the interest of the person on,
procedural protection? Governmental actions affect
of land affect different parties in different ways. The gene
that the interest of any individual varies in accordance 1
her proximity to the property that is the subject of the gor
action —in other words, the greater the distance a persi
that property, the less procedural protections may be rec
8 PROCEDURAL DUE PROCESS IN PI
In the case of historic preservation ordinances, the owner or
occupant of a particular property under consideration for designa-
tion, or that is the subject of a permit proceeding, clearly has a
strong interest that may be affected by the government action —an
interest in the legitimate use of land. Adjacent landowners, who are
likely to be directly affected by changes to a historic property, also
have a strong interest. In the case of a historic district, other
property owners within that district may have a lesser, but nonethe-
less distinct, interest in any action that may affect the integrity of
the historic district. Even members of the general public have an
interest in the action, although generally their interests are less
tangible than those so directly affected.
Each of these interested parties may be entitled to some
procedural protection, through notice or an opportunity to partici-
Th
pate in a public hearing. Nonetheless, the degree of protection
cle
afforded may vary, depending on the interest. For examplh, a
landowner who has applied for a permit to alter his or her property
re
has such a strong interest in the outcome of the preservation
lei
.commission proceeding that he or she should be entitled to receive
of
individual written notice of an upcoming hearing on that applica-
pr
tion. However, a landowner three blocks away has a lesser interest
be
in the proceeding, and may have to rely on some lesser degree of
notice —such as a notice published in a local newspaper, or a sign
posted in front of the property in question. Thus, the answer to the
CO
question "What amount of process am I due? may depend to a
Sh
certain degree on the person asking the question.
3. To what degree does the proposed governmental
action actually interfere In a protected interest?
Procedural due process applies to any governmental action that
affects a "life, liberty, or property" interest recognized by the
Constitution. Different types of governmental actions have different
impacts on each of those interests. The constitutional analysis of
procedural due process used by the courts requires an examination
of the nature of the interference, in order to adjust the procedures
accordingly.
Historic preservation regulations affect private property or
economic interests, rather than interests relating to life or liberty.
Within this area of interests, however, the degree of actual regula-
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 9
tion may vary considerably, depending on the legal aW
to the local historic preservation commission or reviev
example, a preservation ordinance that merely imposes 2
delay has far less of an impact on the property an.
interests of the owner of a property than does a regulatic
ing a demolition denial. The less the degree of regulati
the degree of procedural protection will be requir
constitutional standpoint. (In certain situations, a cc
actions may be considered merely ministerial, and :
extensive procedures.) Conversely, the stricter the degree
included in a local preservation regulation, the greater
of procedural protections that may be due individuals I
The public
p
4. Wbat is the nature of the government's
In any regulatory proceeding, the public has an interest
interest in a
that the government conducts its activities in a man.
workable
efficient both -from a standpoint of time and economy of
decision-
public interest in a workable decisionmaking process al
making
as a legitimate limit on procedural steps. Notice requin
example, must be reasonably tailored to balance the inte
process
individual with the broader interests of the community.
serves as a
high cost and time-consuming nature of mailed notice i
legitimate
resorting to newspaper announcements or posted r
limit on
individuals other than those directly affected by a c
procedural
proceeding. Similarly, public hearings —when required -
steps.
reasonably limited in time and in scope. Otherwis
"process"
could prevent governmental action altogether.
B. A PRACTICAL APPROACH FOR LOOKING AT
PROCEDURAL DUE PROCESS
The constitutional framework described above
understood as general guidance that can help local go
understand the way that the courts approach the issue of I
due process. From a practical standpoint, however, this cm
al framework gives little specific direction for determij
procedures should be used in any particular context. Nc
several basic principles can serve as a practical approacl
10 PROCEDURAL DUE PROCESS IN PL,
preservation commissions that recognize the need to establish a
workable set of procedures to govern the various actions that may
be taken by a local historic preservation commission or review
board.
1. Look first at statutory sources. The term "proce-
dural due process" generally refers to the constitutional require-
ments emanating from the Due Process Clause. From a practical
point' of view, however, procedural requirements may be imposed
both by the Constitution, and by independent statutory sources.
These sources, in the preservation context, may include state
enabling laws for preservation regulations at the local level (or
home rule laws for those ordinances based on home rule powers),
the terms of the local preservation ordinance itself, or other
laws —state or local —specifically designed to set out procedural
requirements for administrative decisionmaking (often called
administrative procedure acts).
In many cases, these laws include some minimal reference to
notice and hearing requirements; in a few, procedural requirements
are much more detailed. In any case, the basic requirements
imposed by statute should be considered to be the baseline for
procedural requirements for any local preservation commission, and
must be followed carefully. Those baseline statutory require-
ments —where sketchy —should be supplemented with more detailed
procedural guidelines to ensure that constitutional due process
requirements are fully met.
2. Understand state case law variations. It is
important that local preservation commissions be aware of any
special procedural rules that have been recognized by the courts of
their particular state. In some cases, the general constitutional
requirements of procedural due process have been addressed by state
courts in contexts that may be of direct relevance to local preserva-
tion commissions —particularly in the context of zoning and other
land use controls. These decisions may give special attention to
issues such as cross-examination, whether hearings must be taken
under oath, and whether transcripts may be required.
It is advisable for local preservation commissions to seek the
guidance of a local attorney —either a municipal attorney or lawyer
in private practice —with a working knowledge of the particular
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 11
Th
pr
re
irr
Of
be
to
be
pr
rel
Foi
Pr
Co.
an
fol
cal
court decisions in their state that may be relevant in c
the procedures that should be followed by the com
exercising its authority.
3. Establisb basic procedures that art
individual citizens, but that are also workab
government. And stick to tbem. Once the minim
requirements and state variations are understood,
constitutional framework described above should be us
preservation commissions to establish an expanded set of
requirements addressing the various decisions or actioi
the commission in carrying out its responsibilities.
dures—which may be adopted by the commission in t
guidelines or regulations —should be as fair as possible I
al property owners, and to members of the public gen(
should not, however, be so detailed or onerous tha
unworkable for the commission. Procedures that are too i
not likely to be followed to the letter, and may later
challenge the substantive decisions of the local p
commission. Both flexibility in approach, and con;
application, are key to effective —and defensible—proc
12 PROCEDURAL DUE PROCESS IN PI
III. WHAT PROCESS IS DUE?
=7�
"The fundamental requisite of due process of law is
the opportunity to be heard. "—Grannis v. Ordean, 234
U.S. 385 (1914)
HAT TYPE OF notice requirements
apply to the different actions taken
by historic preservation commis-
sions? When is a hearing required? What
type of proceedings must be followed at a
hearing? Must transcripts be taken? Is cross-
examination required? What factors are
necessary for fair decisionmaking? When
should a commissioner consider recusing
himself or herself because of a potential conflict of interest? What
form should a final decision follow?
While there are few unequivocal answers to any of these
questions, application of the various principles described in the
previous section of this publication can help to establish a work-
able, and legally defensible, set of procedural guidelines for carrying
out the work of a local preservation commission.
A. NOTICE
General principles. The need for notice stems from the re-
quirement that people have a right to be heard before a government
agency or official takes an action affecting a protected interest.
Interested parties cannot properly exercise their "right to be heard"
unless the local government or administrative agency informs them
in advance of the action that may be taken. In other words, a hear-
ing is not meaningful —and may be legally challenged —if inter-
ested parties are not given a reasonable opportunity to participate.
PROCEUeRAL DOE PROCESS IN PLAIN ENGLISH 13
Wbat does the procedural due process requiremen
mean for local preservation commissions? It means
type of notice should be provided to all interested parti
commission takes an action affecting any specific prop
should be given, for example, prior to a Commission de
landmark or historic district (or formally recommending
or district for designation), or before approving or denyh
relating to the alteration or demolition of a historic 1
before acting on a claim of economic hardship.
In addition to
Who should get notice, and what form should it tak
place to look for notice requirements is in the historic p
notifying
ordinance. To the extent that notice requirements are sp(
individuals
the ordinance, commissions should follow them closely l
directly
requirements are included in the ordinance —or other la
affected it is
ing state enabling acts —other local land use reguh
advisable hand
provide a useful framework for developing notice req
in many cases
Beyond this, the following guidelines should be follower
Who sbould receive notice? The individual whose
required by
under consideration for historic designation should be g;
statute) that a
of any upcoming hearing by a preservation commission I
commission
posed designation. Also, the individual who has applied fr
give some
to alter or demolish a designated property should be give:
type of public
the commission's planned consideration of that applicat
Are neighbors and other nearby property owners
notice
notice? While their legal entitlement to notice may be le
concerning its
as a matter of fairness —and to ensure broad public ace
upcoming
commission decisions —some provision for notice to near]
actions.
owners should be established. (The different ways that r
be accomplished are described below.)
What about the general public? Although the inter
public at large may not be as obvious as those directly ;
the actions of a preservation commission, it is advisabi
many cases required by statute) that a commission give
of public notice concerning its upcoming actions. After s
vation commissions are designed to promote the educati
tural, economic, and general welfare of the public thi
preservation and protection of historic and architectural
and to provide a sense of community identity. Consistent
14 PROCEDURAL DUE PROCESS IN PL
purpose, preservation commissions should provide notice of up-
coming actions to the. general public, as well as to interested
parties. (Some communities, in addition to providing general public
notice of pending actions in the newspaper, provide individual
mailed notice as a courtesy to interested organizations and
individuals.)
Mat type of notice is required? The most common types of
notice are: (1) individual mailed notice; (2) published notice
(usually through local newspapers); and (3) posted notice (general-
ly on a sign on the property that is the subject of the action). These
three types of notice vary in degree in both cost and effectiveness.
The use of individual mailed notice is generally only required
for those persons who will be directly affected by a local commis-
sion's actions —particularly the owner whose property is under
consideration for designation, or the person who has applied for a
permit to alter or demolish a designated property. A number of
communities, as standard practice, also provide individual mailed
notice to adjacent property owners within a set distance from the
property —three hundred feet, for example. For these individuals,
mailing notice to the "owner of record" listed on the property tax
rolls is generally considered sufficient. Due process does not require
that a title search be undertaken to establish ownership (although
a few state statutes and local ordinances require that ownership be
established from deed information). In most cases, consistent use
of an established database, such as property tax records or water
department records, is sufficient for purposes of identifying owners
for this type of notice.
For others in the area, who may be interested in the proceed-
ings but who are not required under local procedures to receive
individual mailed notice, the posting of a sign on the subject
property is generally considered sufficient to meet procedural due
process requirements.
For the general public, public advertised notice is generally
both effective and cost-efficient. While not always considered neces-
sary as a matter of constitutional law, notice through publication
in a newspaper of general circulation in the community is generally
considered an appropriate method to provide notice to the general
public of impending actions that a commission is considering.
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 15
ThI
MC
not
ma
(2)
not
thr
nee
am
not
What about content? Regardless of the type of noti,
content of the notice should be sufficiently detailed to
person receiving the notice to understand the nature of
that the commission is considering, the date, time, an
any public hearing, and the opportunity for public part
any proceeding. A good measure of determining whether
meets requirements of fairness and due process is
reasonable person would be able to understand the
consequences of the action being considered by the con
Special considerations in the notice are
these general principles, there are a number of issues
from time to time in the notice area that are worth
While not a
particular. They include the following:
Designation by reference to another source may,
constitutional
notice. Some preservation ordinances provide for local i
requirement,
of properties on the basis of eligibility or listing in tt
it is a good
Register of Historic Places. The National Register was nc
idea, where
intended to be used as a local regulatory tool, and do(
possible, to
P
the same impact on private property interests as local I
does. (See discussion above on pages 9-10.) Conseq
record local
federal government (which administers the Register) mg
historic desig-
applied the same notice requirements for a National Regi
nations in
that would ordinarily apply to a local regulatory progra
local land
requirements for National Register nominations are s
records.
federal regulations, and differ from those described her
quently, any local preservation ordinance and preservatic
sion that provides for local designation on the basis of el
listing in the National Register should provide separate a
property owner before locally designating the property bec
potential effect of local designation on private property
Notice to new purchasers of property. Most court:
that new purchasers have a responsibility to investigate
status of the property, particularly as to matters that are
public record, such as zoning classifications or historic di
Therefore, most new purchasers cannot claim that the,
given notice of a property's local historic designation st
they were legally "on notice" at the time of purchase. N
while not a constitutional requirement, it is a good ii
16 PROCEDURAL DUB PROCESS IN P]
possible, to record local historic designations in local land records.
Some communities include historic designation as an item on a
seller's disclosure form. In addition, some communities make it a
practice to mail information to new purchasers notifying them of
the property's prior designation and explaining the procedures
under the historic preservation ordinance. With the proliferation of
Geographic Information System (GIS) technology allowing local
governments to record a wealth of information about each parcel
located in a community in a data base, information regarding
historic designation should be simple to archive and obtain, and
should satisfy any notice concerns relating to subsequent purchasers
of designated buildings.
Failure to give notice. Failure to give notice to an interested
party may not invalidate an administrative proceeding, such as a
public hearing, if the party in question learns of the proceeding
If I
some other way and ends up participating. (This is referred to as a
ad
party having received "actual notice.") In some states, however,
m4
failure to comply with statutory notice requirements, even if such
requirements are more stringent than those constitutionally required
w4
c�u
by due process, may invalidate the preservation commission's
actions. Therefore, when drafting a preservation ordinance or
on
preparing rules and regulations regarding notice, local communities
ne
should be careful not to over -complicate notice requirements,
me
because of the potential for technical failure. In any case, a
qu
commission should carefully follow the notice requirements in the
ordinance or statute.
New notice requirements. If a hearing has been called after
proper notice, but new matters are addressed that were not included
in the original notice, new notice may be required. The need for
new notice and further proceedings depends on simple issues of fair-
ness—i.e., whether a member of the public might reasonably have
anticipated that the new matter would arise at the hearing. Most
courts will take a practical approach in dealing with this issue —for
instance, if a new subject is brought up at a hearing, the preserva-
tion commission may be able to leave the record open for a set
period of time for additional written public comment. The best
solution to this problem is to ensure that the initial notice is
sufficiently detailed to permit a member of the public to understand
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 17
what will be addressed at the hearing, but not so limite
that it can be read to exclude consideration of related D
Interim or preliminary controls. In some cases,
necessary for local communities to adopt interim or p
protections for properties prior to formal designation, i.
preserve the status quo while a detailed preservation p
established. Generally, courts have permitted interim rests
the use of property, particularly in emergency situation
prior notice. Affected individuals should be given noti
Those affected
restriction within a reasonable amount of time after it
by commission
effect. However, whenever possible —and when it does not
decisions must
purpose of the interim regulation —prior notice should be
have a fair
opportunity to
B. THE PUBLIC HEARING
be informed of
There are three basic purposes of a public hearing.
factors to be
hearing provides the property owner an opportunity to h
considered, to
with regard to decisions about his or her property. Se
present
hearing provides the decision makers with information ,
information
opinion on public policy matters. Third, the hearing p
forum for the presentation of specific facts concerning a
relevant to the
Courts have not rigidly applied standards for public
decision, and
to meet these purposes. Instead, the courts generally weig
to understand
interests relating to an individual's "right to be heard" a€
the basis for
public interest of fair but efficient hearings, so that decisic
the decision
can take place at the local level on a regular basis. 'I
unless there is statutory or other legal guidance in a p
once it is
state or local community that suggests otherwise (which s
made.
carefully determined by the preservation commission
assistance of a knowledgeable attorney), public hearing;
fairly informal. How informal? "Informal" in the sense of I
"trial -like" —in other words, no swearing in of witnesses,
examination as long as opposing interests have a re
opportunity to present their views, and representation by
while generally permitted, is not mandatory. Basically,
required is that those affected by commission decisions ha
opportunity to be informed of factors that will be consider(
commission, to present information relevant to the decisioi
18 PROCEDURAL DUE PROCESS IN PLAII
understand the basis for the decision once it is made.
The basic elements of a fair hearing include:
• an unbiased tribunal;
• fair notice of the proposed action and the grounds asserted
for it;
• an opportunity to present reasons why the proposed action
should or should not be taken;
• the opportunity to present witnesses and relevant evidence;
• a meeting open to the public; and
• the making of a record and statement of reasons.
How do these elements work in the context of a local preserva-
tion commission? .The following guidelines should provide some
specific direction:
Timing of bearing. The general rule in procedural due
process is that a hearing should be held prior to a governmental
action affecting a protected property interest. In a few limited
instances, however, the hearing may be held within a reasonable
time after the government takes action.
In the case of local historic preservation commissions, the
action of designating a property, or acting on a permit application
—following the general rule —should be preceded by a public
hearing. One limited exception, however, is the use of interim
controls pending a commission's final decision on whether to
designate a nominated property as historic. In such a case, interim
restrictions may be necessary to prevent significant alteration or
demolition pending completion of the designation process. (In other
words, the restrictions may be necessary to limit a property owner's
ability to circumvent the nomination process by altering or
demolishing a historic property before the government can act.) If
a commission action involves this type of interim control (some-
times called a "preliminary designation"), the required public
hearing may take place after imposition of the restriction, in light
of the danger of demolition and the temporary nature of the regula-
tion. The necessary hearing should be held as soon as possible after
the temporary restriction is set into place.
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 19
Thi
rul
Pn
du,
the
A4
pri
err
W01
PrC
P01
Role of preservation commission mem
staff. The preservation commission is usually co,
members that have some expertise in architectural histot
ture, law, real estate, rehabilitation, .or others who
interested in the preservation and protection of historic
More and more frequently, historic preservation ordi.
requiring that some commission members include resii
in individual landmarks or within historic districts to
the commission is representative of those members of
that are subject to the commission's regulatory powers.
Commission
Questions frequently arise as to the role that the c
members are
and its staff must play in the hearing process. one of th
allowed, and
bilities of the commission is to hear evidence and make i
should be
dations or decisions regarding designation and issuance
encouraged, to
In this role, the commission must listen to the testimc
ask questions
nesses and consider other evidence presented to them, a
decision based on information in the record. Commissioi
of witnesses to
should not make decisions based on their personal kn
determine if
facts specific to a particular case if those facts are not
their testimony
record or not publicly known. This is not to say that a c
is credible.
member's personal experience does not come into play ii
Commission
sionmaking process —after all, commission members
chosen to serve because of their specific knowledge and e
members,
preservation or a related field. However, personal knov
however, must
expertise should be used simply to evaluate the rel
be careful not
evidence presented in a specific case.
to "testify" at
Commission members are allowed —and should t
the hearing.
aged —to ask questions of witnesses to determine if their
is credible. Commission members, however, must be can
"testify" at the hearing nor base their decision on inforr.
made part of the public record.
Commission staff members, however, have a different
members play an important —and often active —role i
together the record on which the commission's decision
but should not play an active role in making the decisioi
a number of jurisdictions, staff members may actual.
information regarding the matter at issue at the hearing
report on information gathered from their own investigati
20 PROCEDURAL DUE PROCESS IN PL
facts in a particular case. (This is often presented as a formal staff
report, with recommendations, which becomes part of the public
record.) In working with the commission, however, staff members
should be careful not to present facts that are not made part of the
public record.
Role of preservation organizations. In all cases, and
especially in communities that do not provide staff to the preserva-
tion commission, local preservation organizations or other interested
individuals may play a critical role in providing testimony at the
hearing. Commissions should ensure that all sides Of a particular
issue are presented for the record; where only the applicant's side
is presented —regardless of how meritorious —the commission may
find it difficult to point to any fact in the record that would justify
denying the application.
Swearing in of witnesses. Most jurisdictions do not
require that local commissions swear in witnesses at public
hearings, so long as testimony is taken in such a manner that all
those involved understand the importance of the testimony. Some
courts, however, have ruled (and some state statutes require) that
witnesses before any local administrative agency acting in a "quasi-
judicial" capacity give testimony while under oath to ensure a fair
hearing. This is one of those issues that should be checked carefully
with the assistance of local counsel, in order to determine whether
the actions of local preservation commissions are considered to
come within such a requirement.
Cross-examination and rebuttal. The ability of an
interested party to question or dispute the testimony of adverse
witnesses is an important element of due process. In the context of
an administrative proceeding, however, few courts have found that
the ability to challenge the testimony of witnesses must be carried
out through formal cross-examination. The courts have generally
recognized that hearings in this type of context may be relatively
informal in nature and do not have to be conducted as if before a
court. (Indeed, the use of court -like procedures may actually deter
public participation.) Therefore, a commission's refusal to permit
a formal cross examination would usually not be considered to
deprive the parties of a fair and impartial hearing. For example, a
designation hearing may seldom involve issues of fact that cross-
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 21
M1
ju
nc
thi
co
sM
Md
pu
he
loi
to,
tal
01
all
im
un
the
Of
tea
examination will help resolve, because opinions reg
significance of buildings to architecture, history and cuh
particularly well -suited to explanation through cross -es
Instead, the ability to present opposing views and infon
generally satisfy the interests that would otherwise bI
formal cross-examination. Testimony by all sides of a p
issue effectively places all controversies squarely before tl
Sion and 'becomes part of the record upon which c
members base their decision.
Voting. Commission members should not be allot
by proxy. If a member is unable to attend a meetin
Commission
decision is to be made, that commission member sho
members and
permitted to vote. No commission member should be able
commission
a particular designation, permit application, or economi
staff must
request unless he or she has "heard" the testimony,
know and
having been present at the subject hearing or by havin
the record, audio or video recordings, or transcripts. In a
understand
discussed in further detail below, commission members in
the "sunshine
from voting when they have a conflict of interest.
act" of their
"Numbine Acts." Many states (and some locali
state, which
adopted so-called "sunshine acts" —statutes that de
constitutes a meeting and require that every portion of al
requires
trative agency and legislative meeting be open to public e
meetings to be
except in specific situations. Typical sunshine acts define
held openly
as taking place whenever a certain number of commissiol
after public
gather to discuss commission business. Sometimes the
notice.
quantified in the statute or sometimes it is tied to
ordinance's definition of a quorum. To ensure that such
are open to the public, the commission must provide pul
of the meeting (usually under terms defined in the sunsh
other local ordinances governing public meetings). Spei
that would provide exceptions to the sunshine act ma
discussions relating to discipline of an employee or
strategy. In these cases, the information to be discussed
damaging to an individual or could jeopardize the attor
relationship and the agency is allowed to meet in executh
Commission members and commission staff must i
understand the sunshine act of their state. Questions ;
22 PROCEDURAL DUE PROCESS IN PIJ
application of the sunshine act most often arise in meetings that
take place outside of the normal course of events —for example,
when some or all commission members go to a property at the same
time to assess its significance for designation, or to better under-
stand a property owner's request,for a building permit. In these
instances, particularly when a specific date and time have been set
for the property visit, the "meeting" should be given public notice
in accordance with the notice requirements stated in the particular
state's sunshine act, or the appropriate local ordinances. It is easy
to run afoul of state sunshine acts, and commissions should make
every effort to comply with them to ensure due process.
Maintenance of a record. Commissions are responsible
for compiling and preparing records and making them available to
interested parties. The commission should be able to charge a
modest fee to cover the costs of making copies of transcripts of
testimony and minutes, or otherwise providing copies of the record
a'
of proceedings to interested parties. However, the commission should
n
also make the record available for public inspection at an appropri-
ce
ate location, such as the commission's own offices or the city
P1
clerk's office. Failure to. maintain a record may be grounds for
rE
reversal or remand of a decision that has been appealed to the
courts. (The issue of record -based decisionmaking, including what
m
constitutes a record, is discussed further below.)
CP
Role of the expert. The expert witness has become a
in
standard component of the hearing process. Technical information,
p4
accompanied by opinion evidence from experts and laypeople, help
to explain the importance of a proposed action and relate the action
to the standards and criteria included in the ordinance. In situa-
tions where a commission relies on lay testimony rather than expert
testimony, the commission may find that its decision is challenged
as "against the weight of the evidence." A commission can reject an
expert's opinion in weighing and balancing the evidence even where
there is no other expert testimony. However, in such a case the
commission must clearly establish why the testimony of the expert
is not being accepted, for example by showing that the testimony
was not credible because of inconsistencies, or because of bias,
conflicting evidence, or conflict of interest. (If expert testimony is
one-sided, some commissions are authorized to call on their own
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 23
Where
testimony by
many
individual
members of
the public is
likely to be
redundant, it
is appropriate
for the
commission to
ask that a
spokesperson
be appointed
to address a
particular
point of view.
initiative other experts to testify, to give a more balance
Role of counsel. Due process does not re
attorneys be present at preservation commission pi
Nonetheless, the participation of (or representation b'
should not be prohibited. At the same time, a preservatio
sion should not permit the presence of lawyers to turn a
hearing process into a trial -like setting.
Timing of witnesses. The commission should I
lished rules that are applied even-handedly and fairly to
es, and that provide the public with a fair opportunity
testimony. All witnesses, not just those supporting the al
proponent, should be granted a reasonable time for
However, a commission should not be forced to hear
testimony. It is appropriate for the commission to s
spokesperson be appointed to address a particular poll
Another option for the commission is to leave the recor
an established period of time to obtain written commen
A variety of techniques may be used to provide
parties with a reasonable time to be heard. One way to d,
provide proponents and opponents with a set amount of
example 15 minutes each —for direct presentation, wi
opportunity for rebuttal, as well as an opportunity for
members of the public to make a brief statement, am
record for submission of written comments for a period of
the hearing. Whatever technique is used, the commissi
apply it consistently to all interested parties, and pro
flexibility depending on the complexity of the matter at
Relevancy of admitted information. Car
unlike courts, are not required to follow strict rules of
Courts have recognized that rules of evidence in adrE
proceedings, such as commission hearings, should be g
flexibility in favor of admission of evidence. Even where
evidence has been "admitted" during the hearing pr
commission, in weighing and balancing that evidence, m,
give it little or no weight. Still, the commission she
accepting obviously irrelevantevidence into the record,
only serve to prolong hearings and add confusion to the
making process.
24 PROCEDURAL DUE PROCESS IN PI
Applicant's and public's rigbt of access to infor-
matiou prior to bearing, including staff recommenda-
tions or case reports. Just as applicants and the public have
the right to review transcripts and minutes of meetings, they also
should be given reasonable access to relevant information prior to
a commission hearing. Due process does not require that the
proponents or opponents of a designation or permit application
enter into a formal "discovery" process with the commission (such
as might be required in a trial -like setting); however, any interested
party should be given the opportunity to review information that
relates to the matter of an upcoming proceeding. Generally, this
should include staff recommendations or case reports on the matter
(unless this information is deemed confidential, which is the case
in some jurisdictions; it is advisable to check this with local
counsel). If the matter involves a single property owner, informa-
tion should be provided to the property owner at the same time it
is provided to commission members prior to the subject hearing. If
many property owners are involved, it is advisable to include in any
public notice instructions as to where and how information on the
matter may be reviewed prior to the hearing.
C. RECORD -BASED DECISIONMAKING
The right to be heard also includes the right to a responsive
decision. This simply means that a preservation commission's
decision should adequately explain the basis of the decision, with
specific reference to information in the record and to applicable
ordinance criteria. Some state statutes and many preservation
ordinances require express findings of fact (or a detailed statement
Of reasons) and a written decision. These may not be necessary to
meet constitutional due process standards (for example, a hearing
transcript or written minutes, if sufficiently detailed, may suffice
instead of a formal written decision). However, it is strongly
advisable that commissions articulate —preferably in writing —a
summary of findings of fact, the basis for the decision with
references to the appropriate ordinance criteria and record, and the
decision.
To ensure that a responsive decision is made by the commis -
PROCEDDRAL DUE PROCESS IN PLAIN ENGLISH 25
A
cc
di
A
W
el
b(
de
sp
re
in
th
to
or
cri
The record is a
compilation of
testimony
from the
hearings,
written
information
provided by
witnesses,
staff reports
and recom-
mendations,
and any other
information
that is placed
into the record
and used to
form the basis
for the
decision.
Sion: (1) a record of the commission hearings and d
process must be prepared; (2) the commission must is
that lays out the rationale for the action taken by th
(3) the decision must be consistent with ordinanc
supported by facts in the record; (4) the decisi,
consistent with previous decisions dealing with similar
es; (5) minutes of the meeting at which the decis:
should be prepared, maintained, and approved at
meeting; and (6) a verbatim record in the form of
video recording or transcript should be maintained.
Preparation of the record. Preservation
should make determinations regarding landmark de
certificates of appropriateness and certificates of ecom
that set forth clear findings of fact from the record. T
together with a discussion of how the facts rely
ordinance criteria, serve as the basis for the decision
What constitutes the record? The record is a o
testimony from the hearings, written information
witnesses, staff reports and recommendations, an
information that is placed into the record and us&
basis for the decision. Testimony may be recorded it
written minutes or audio or video recordings. And
recordings are more reliable, particularly when prole
reporters are not available to prepare a formal trans[
Written information provided by witnesses and ot:
parties must be maintained as part of the record. It is
maintain the record as a history of the decisionmakir
case the decision is later challenged, or in case a si
should arise in the future.
Consistency in decisionmaking, Due prc
that all applications and applicants coming before thf
be treated consistently. In addition, the commission
every effort to make decisions that are consistent with
However, the overriding principle in the decisionmaki
that .decisions be supported by information in the rec
cases, courts have upheld commission decisions that a
inconsistent with previous decisions, so long as they
by information in the record and are consistent with tl
26 PROCEDURAL DUE PROCESS IN
For example, at least one court has upheld a commission's denial
of a permit to apply vinyl siding on a house even where the
commission had previously routinely approved such requests. The
court concluded that the findings of fact supported such a decision.
Thus, commissions should make every effort to follow precedent but
at the same time not be hamstrung by it. As a practical matter, few
cases are clearly identical. Good recordkeeping, however, is essential
in order to note different facts that may Justify different decisions.
Caution must also be taken in those cases that deal with issues
never before considered by a commission. Before making a decision,
the commission should carefully examine the facts and consider
how the decision may apply to future applicants.
Minutes, Recordings, and Transcripts. Minutes of
meetings are essential in preparing and maintaining a record for
the commission to review in making its decisions or maintaining a
history of the commission and its prior decisions for future
M
commissioners. Minutes help give the commission an institutional
m
memory and consistency, not only from meeting to meeting, but
also over a long period of time as commission members change and
C.1
are replaced. Minutes should be in writing and approved by the
P1
commission at its next meeting. Minutes should also be reasonably
m
available for review by the public.
re
While minutes serve as the detailed summary of the commis-
U
sion's meeting, a verbatim record should also be maintained by
audio or video recording. The recording need not be transcribed
(unless required by local ordinance or other statutory source), but
is available if questions arise later about evidence presented, or if
an absent commission member needs to review the proceedings in
detail in order to participate in the commission's consideration of
the matter.
D. BIAS, CONFLICTS, AND OTHER COMPLICATIONS
A wide variety of other issues relating to the conduct of
commissioners, including conflict of interest, ex parte contacts,
bias, and the role of advisory commissions, must be understood as
part of the overall subject of procedural due process.
Bias. Whether a historic preservation commission decision
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 27
meets procedural due process requirements often d
commission members remaining unbiased and free fron
apparent conflicts of interest. As many legal commen
courts have recognized, "an impartial decisionmaker is t
meeting due process requirements."
Biased commission members create two problems f
preservation commissions. First, commission decision
challenged as violating due process requirements on the
bias or conflict of interest. Second, any appearance
members of the commission are biased or have conflicts
will diminish the public perception of the preservation o
Commission
and call into question the fairness of their decisionmakit
members
Three types of bias, institutional policy bias, prejudgment
should always
and personal animus, are discussed below.
Institutional
policy bias. Allegations are occasion
refrain from
that the very mission of the historic preservation commissi
making
an institutional policy bias, since most preservation a
statements
members have some expertise or interest relating ti
regarding a
preservation. Courts have recognized, however, that the s
backgrounds of many individual commission members
particular
help to ensure fair and informed decisionmaking, becai
matter outside
complexity of issues involved. Courts also recognize that cc
of the
members inevitably will have personal opinions ref
commission
preferred course of development or solution to the iss
meeting
them. Due process does not require that commissioners
setting.
opinion about the matter before them, but.ratber, that
sioners consider the evidence with an open mind and giv
fair consideration to all points of view presented with rest
facts of a particular case.
Prejudgment of a case. Another form of bias is pre
of the facts of a case. Prejudgment may be alleged where
of a commission have made public statements regarding t.
tance of saving a particular structure prior to closing of t
for designation or permit review. To avoid allegations of
ment, commission members should always refrain fron
statements regarding a particular matter outside of the co:
meeting setting and prior to completing the decisionmakin
Personal animus. Extremely difficult to prove are al
28 PROCEDURAL DUE PROCESS iN PLA
that a particular commission member has personal animus, or is
engaged in a personal vendetta, against a particular applicant. Still,
commission members must be extremely cautious to prevent
personal feelings about an applicant from entering into the
decisionmaking process. Some extreme cases may require that the
commission member remove himself or herself from the decision -
making process.
Conflicts oflnterest. Allegations of conflict of interest are
more successful in court than any other type of bias claim.
Commission members should be careful to ensure that they do not
have any type of personal, financial, or professional stake in any
proceeding before them. When a conflict of interest exists, the
commission member should formally remove himself or herself from
the decisionmaking process. This includes leaving the room during
any hearing or discussion of the matter, and making no further
statement or comment about the matter. Most local governments
have separate conflict of interest ordinances or guidelines; in some
cases these are spelled out in the preservation ordinance or the
commission's rules and regulations. Although these provisions may
vary, they all direct commission members with real or potential
conflicts to refrain from participating in the review of the matter at
issue. Some commissions recognize only financial conflicts,
although most also recognize that conflicts may arise that are per-
sonal in nature.
As a general rule, being open about potential conflicts early in
the decisionmaking process will help to avoid later allegations of
due process violations.
Also, if any individual commission member finds that his or
her personal, professional, or business interests result in recurring
conflicts of interest, it may be advisable for that member to step
down from the commission, rather than risk impairment of the
commission's functions.
Personal conflicts. These are generally easy to identify and
usually revolve around the relationship between a commission
member and an applicant that would create a conflict between self
interest and civic obligations. Direct relationships, such as brother
or father are easy to identify: Indirect relationships, such as
neighbors or close personal friends, may pose more difficult
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 29
�I
cc
in
th
A
A
fa
re
hii
he
thi
M
pn
questions. Commission members should understand that
may exist even if a relationship creates only an appe
impropriety.
Financial conflicts. If a commission member's
interests will be directly or indirectly affected by a deck
commission, he or she should be disqualified from thI
making process. In general, financial interests are easily
For example, if a commission member owns the structu
or is a limited partner in an entity that owns the structui
a financial conflict exists. In addition, if the value of tb
owned by a commissioner will be directly enhanced by tl
of the commission, the commissioner should be disqual
Being open
will likely occur where the commissioner owns property s
a derelict landmark or potential landmark. In this type I
about poten-
commissioner may also have a personal conflict becal
tial conflicts
relationship with his or her neighbor. More difficult coral
early in the
arise when the conflict is less direct —for example, when ;
decision-
sioner owns property in the vicinity of the property at issu
making pro-
a case, it may be advisable to seek advice from an attorr
familiar with such issues in order to obtain a prior rulii
Bess will help
potential conflict. In any case, early disclosure and res,
to avoid later
any fact or relationship that may reasonably be construe
allegations of.
potential conflict may help to ward off a later claim of in
due process
Professional conflicts. These types of conflicts may
violations.
when a commissioner's professional interests conflict with
ability to make an impartial decision. Since many pre
commissioners have some professional interest in historic
tion, these types of conflicts can frequently arise. Clear
instance where a commissioner is the architect for the app
or she cannot participate in the decisionmaking process.
a case, the potential conflict is both professional and fi
More difficult are issues arising from past employers or pre
relationships, or involve commissioners who are directors
makers for a local advocacy group that is taking a public
on a particular designation or permit application. WI
association or past professional relationship with a 1
advocacy group or organization is usually insufficient to i
a conflict of interest, to avoid accusations of conflict of in
30 PROCEDURAL DUE PROCESS IN PLA
commissioner would be well-advised to note=both publicly and
early in the process —his or her relationship with the organization.
It may also be advisable in such circumstances to ask the city
attorney or outside counsel to give an opinion for the record about
any potential conflict.
Personal Conduct. Generally, commission members can be
expected to act in a professional manner, without any general
directive from procedural rules or guidelines. Occasionally, however,
a commission member will take some action, such as attending a
commission meeting while under the influence of alcohol, that will
be particularly embarrassing to a commission. Clearly, these
instances should be avoided. However, commissions should have
rules and regulations addressing personal conduct so that when
problems do occur they can be handled promptly and appropriately.
Applicants and their representatives, witnesses, and others
coming before the commission must be treated courteously and
professionally even under contentious circumstances.
Another personal conduct matter is failure to attend meetings
on a regular basis. Most preservation ordinances or rules and
regulations address regular meeting- attendance. Missing a pre-
determined number of consecutive meetings may be automatic
grounds for dismissal as a commissioner.
, Ex Parte Contacts. Another potential problem for preserva-
tion commissions is how to avoid the charge that a commissioner's
decision is tainted because of ex parte contacts or communications.
An ex parte contact or communication is an oral or written
communication that is not on the public record, and of which other
interested parties are not given reasonable prior notice. There are
a whole range of ex parte contacts that may arise in the course of
a commission proceeding. For example, a commissioner may want
to visit a property before a bearing to better understand the
significance of the property for designation or the possible impacts
of issuing a permit. While site visits are appropriate and useful,
they should be conducted carefully and openly (preferably, after
public notice) to prevent being turned into a private briefing for
commissioners by the property owner or applicant. In another
example, the commissioner may happen to speak to the appli-
cant —or to a local preservation advocate —in a social setting
PROCE➢ORAL DUE PROCESS IN PLAIN ENGLISH 31
A►F
a
be
co
mi
tre
COi
an
fet
ev,
COI
cir
unrelated to the commission proceeding.
To preserve fairness, it is important to prevent any ii
from one side of an issue to be given to the decisionmak
all interested parties having an opportunity to kno
necessary counter, that information. This type of one -side
tion may taint the decision of a commissioner who recei
may result in a subsequent legal challenge. Poe parte ct
contrary to the ideals of fairness encompassed within the
procedural due process, because interested parties cannc
Ex pare
challenge the information. It is good practice to proh.
parte communications, and to adhere to this rule. Cc
contacts are
members should politely inform callers or others that th
contrary to the
permitted to discuss a pending matter outside of the heal
ideals of
A few jurisdictions recognize ex parte 'contacts
fairness
acceptable when a commission is acting in a quasi -
encompassed
manner, such as a designation of a historic district. HoI
type of distinction is difficult to apply with any consisten
within the
any event may open the commission's actions up to chs
concept of
the basis of other types of bias.
procedural
To avoid due process challenges based on ex pad
due process,
preservation commissions should adopt rules and regula
because
clearly prohibit such contacts. Commissions should alsi
interested
commissioners from providing advice or opinion to app
potential applicants prior to a hearing,
parties cannot
Ex parte communications, however, may not be i
rebut or
proceeding, particularly if disclosed at an early date. WI
challenge the
parte contact or communication has been made, the corn
information.
should disclose for the record the nature and charact
contact. Such disclosure will give the interested parties an
pity to rebut or challenge the information.
Advisory Commissions. Due process requiremi
legal matter, may not apply tothe actions of admi
agencies Aich have only advisory functions. Nonethele
such agencies make recommendations that are relied u
decislonmaking body, it is prudent that they also follow d
principles of procedural due process in carrying out their
powers.
In the preservation context, while not common, sc
32 PROCEDURAL DOE PROCESS IN PLA
governments have established advisory commissions for each locally -
designated historic district to provide input on preservation matters.
It is strongly recommended that these advisory commissions
establish and follow basic procedural due process guidelines, by
providing proper notice of meetings, holding public meetings,
conducting proceedings in a manner that provides interested parties
a reasonable o6ortunity to participate, and making a decision
within a reasonable time.
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 33
Iv. TEN TIPS FROM THE CITY ATTORNEY
,,.g
ITY ATTORNEYS Robert L. Zoeckler and
Kate Herrmann Stacy have each
spent a considerable portion of their
legal careers advising local preservation
commissions and staff about how to carry
out their responsibilities in a manner that
is both effective from a preservation stand-
point, and fair to those individuals affected.
The following practical tips for preservation
commissions reflect some of the guiding principles that these two
attorneys have found useful in helping to keep their clients out of
trouble, and out of court.
I. Create and follow your own Rules of Procedure.
Every commission or board should compile a set of rules
governing their procedures. These rules should be simple,
clear, and easy to interpret and enforce —but also flexible
enough to handle difficult situations. Once promulgated,
procedural rules should be strictly followed. An oral summary
of your procedures is an excellent way to begin each meeting.
2. Treat every person fairly and impartially. Treating a
party fairly and impartially is more important than ruling in
their favor. Parties frequently choose to appeal a commission
decision less because they lost than out of a sense of unfair or
biased treatment. As a practical matter, a large and legitimate
part of due process is perception. Take your constitutional re-
sponsibility to provide a fair and meaningful hearing seriously:
• Treat everyone politely and with respect.
• Give every speaker your attention.
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 35
• Reciprocate courtesies —if you grant one party
automatically extend that courtesy to the othe
• Never express personal feelings about any ind:
3. Always maintain control and decorum. t
Chair bears this responsibility, but all members sh
Be fair but firm. Never let speakers cross -talk or s
turn. If necessary, gavel them down. Do not allow
demonstrations. It is unfair to others and a major
problem to allow a public meeting to get out
become disruptive. .
4. Do not delay or compromise decisi(
unnecessarily. Avoid the human urge to delay ev
versial decision in the hope that it will be resolved
compromise every problem. Accept the fact that you
able to make everyone happy, and that you mu
decision that usually makes you the enemy to a
part of the public. Delay frequently takes a hea
financial resources. Similarly, compromise always so
but frequently backfires and is often directly cent
criteria you are required by the law to follow. If
result is likely or further testimony necessary, t
compromise may be appropriate. Otherwise, take t
make the difficult decision and move on.
( 5. Remember Ms. McGillicuddy. If you encoun
deciding a thorny notice issue, it may help to in
existence of an unknown citizen —a Ms. McGillicv
stays at home reading legal notices. Think abou
would react to your conduct. Focus on what
know —not what you know. Would she be aware th
taking up an issue you did not publish? How wouli
that you decided to delay the meeting until tomor
When in doubt, defer the meeting to ensure proper
to remain objective by keging your focus on the
public when dealing with notice questions.
36 PROCEDURAL DUE PROCESS IN PI
6. Avoid Surprises. Try to avoid surprising the public with
new information at the decisionmaking hearing. Allow the
public an opportunity to review available information on the
matter before the commission ahead of time whenever feasible.
Get notices and agendas out to the public as early as possible.
7. Record, record, record. This is the most important point
to remember. A good record is an absolute necessity on appeal,
due to the type of decisions most commissions render. If you
want your decision to be upheld, you must have a good record
to support that decision:
l • Always be aware that what you say is.being recorded.
Assume it will be transcribed and read. Hearings are not
social gatherings. Flip comments, in addition to being
inappropriate, will often come back to haunt you.
• Be meticulous in your record keeping. Make an audio or
video tape of every meeting. If the machine breaks, stop
the meeting until it is repaired.
• Date every document, preferably with a colored stamp to
identify an original. Maintain all of these documents in a
master docket.
• Never go "off the record" to have private discussion unless
you first comply with your jurisdiction's sunshine laws and
consult with legal counsel, if possible.
• Never express your conclusions prior to hearing all of the
evidence.
• The person who decides must hear. Review the record. Do
not vote if you are not familiar with the record or have
not actually heard or reviewed everything in the record.
8. Listen to your legal counsel. Every commission needs
legal counsel on occasion. If you anticipate a difficult hearing,
ask your attorney to attend. If you ask a legal question, follow
the advice given. The worst posture for legal counsel is to
answer a question, only to have the client make a contrary
PROCEDURAL DUE PROCESS IN PLAIN ENGLISH 37
decision on the record —such inconsistencies are
defend in court. If you are not prepared to follow
not ask the question.
9. Explain your decisions. The public should knc
voted the way you did, and often, your jurisdiction
require some form of factual findings and conclus
• Try to make sure every decision has an expla
nale, either written or expressed at the public
• Be consistent in your decision making. Explai
for apparent inconsistencies on the record.
10. Follow your criteria. Though not always
procedural terms,. this point is critical. Read and
the criteria in your ordinance. Listen to the evide
mine the facts. Then apply those facts to the
criteria. By tying your decision to -the criteria with o
knot, you are treating all parties fairly while p
sound foundation in case of an appeal.
38 PROCEDURAL DUE PROCESS IN P1
MINUTES PRELIMINARY
HISTORIC PRESERVATION COMMISSION
DECEMBER 10, 2015
IOWA CITY PUBLIC LIBRARY MEETING ROOM A
MEMBERS PRESENT: Kent Ackerson, Thomas Agran, Esther Baker, Gosia Clore, Kate
Corcoran, Frank Durham, Andrew Litton, Pam Michaud, Ginalie
Swaim, Frank Wagner
MEMBERS ABSENT: Ben Sandell
STAFF PRESENT: Jessica Bristow, Bob Miklo
OTHERS PRESENT: Pat Lang
RECOMMENDATIONS TO COUNCIL: (become effective only after separate Council action)
CALL TO ORDER: Chairperson Swaim called the meeting to order at 5:30 p.m.
PUBLIC DISCUSSION OF ANYTHING NOT ON THE AGENDA:
There was none.
CERTIFICATES OF APPROPRIATENESS.
429 Ronalds Street.
Bristow said this property is on the corner of Ronalds and Van Buren Streets in the
Goosetown/Horace Mann Conservation District. She showed a photograph of the house with its
new front porch.
Bristow said the applicant is remodeling the kitchen and would like to remove the double hung
window and the door on the east side, which faces Van Buren Street, and save them to
potentially relocate them on the south side. She said the applicant would like to replace the
door with a fixed window with a head at the same height as the door that would fit the width of
the current door opening and match all the other windows.
Bristow said the sill height is still to be determined, based on what would be necessary for
counter clearance in the kitchen. She said staff would work with the applicant to approve the
material choice for the window, once that is decided. Bristow said that with the size of the
space on the inside, this is the best option for getting anything close to a modern -style kitchen.
Bristow said that on this house, there are no windows to align with on the second floor above
this area. She said that in the front bay there are single windows instead of paired windows, so
a single window would not necessarily mess up any window rhythm. Bristow said this house
also has numerous, smaller rectangular windows in each of the gable ends as well as the small
window next to the front door, which appears to be original also, because of the window trim
and the placement of the radiators inside.
Bristow said that the window in the bay is also a large, fixed window, so the house has some
precedent for not having just double hung windows and having something that is a little bit more
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 2 of 10
of a rectangular shape. She said staff recommends approval of this, based on the idea of
getting the window material approved. Bristow said that when the porch was remodeled, the
applicant removed some of the synthetic siding and will probably have enough to fill in the area.
She said that anything extra that is needed should be able to be matched.
Bristow showed a current image and also a Photoshop image of what this project could look
like.
Ackerson asked if the steps are poured in place or are an independent unit and what the
foundation situation would be if they are removed. Bristow responded that this was a University
partnership house, and she had asked about the steps but they were existing and not put in
place. She said staff believes the steps are independent. Bristow said that, looking at this from
the inside photographs, there does not appear to be any foundation issue. She said the
foundation is all rough -textured, concrete block.
Michaud asked if it would be possible to allow a casement window over the sink for ventilation.
Mikio said the guidelines would indicate a double hung unless a casement is needed for egress.
He said that this could be designed as a double hung.
MOTION: Corcoran moved to approve a certificate of appropriateness for the project at
429 Ronalds Street with the following condition: window product information submitted
for review and approval by staff. Clore seconded the motion. The motion carried on a
vote of 10-0 (Sandell absent).
1009 East Colleae Street
Bristow stated that this is a continuation of the Commission's discussion at its last meeting. She
said this property is in the East College Street Historic District. Bristow said that earlier this
project came before the Commission for some siding and a window resizing above the porch.
Bristow said that currently, the application is to reroof the house. She said it has a standing
seam metal roof that would be replaced with shingles. Bristow said the chimney would be tuck
pointed, some siding would be replaced as needed above the base, and an ice and water guard
product would be installed. Bristow said the part of the application that caused this to be
deferred is the gutters.
Bristow said the application is to remove the built-in gutters by roofing over them and installing a
K-style gutter on the outside. She said the crown molding would be removed to create a flat
fascia, and the K-style gutters would be installed outside of that. Bristow showed images of the
built-in gutter.
Bristow said this is a Greek revival transitioning into Italianate house. She said the gutters do
create the cornice returns and are one of the main architectural characteristics to differentiate
and define this house and its style. Bristow said that is the reason staff recommended not
removing the gutters.
Bristow said the packet contains a memo explaining that roofer Mark Anderson has looked at
the house. She said Anderson has the ability to coat the existing standing seam roof with a
coating called Acrymax, add fabric reinforcement to the gutters, and coat the gutters as well.
Bristow said Anderson confirmed that he provided the applicant with a quote to do that work.
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 3 of 10
Bristow said staff has also found a couple of articles discussing the construction and purpose of
the built-in gutters and how they can be maintained or repaired. She said that one of the
articles talks about the Secretary of the Interior Standards for Rehabilitation and how to maintain
the gutters.
Bristow referred to a photograph of a home that is not in a district and is not a landmark
property, on the corner of Market and Governor Streets, where the built-in gutters were roofed
over and did exactly what the Commission is discussing, except for the possibility of continuing
the gutter at the cornice return. She said that on the example house, the crown molding was
covered over.
Bristow said staff also looked into some of the past examples of this type of request. She stated
that there were multiple projects where the homeowners decided to repair their gutters, and a
certificate of no material effect was issued. Bristow showed photographs of these examples.
Bristow said there were also instances where the gutters were allowed to be removed. She
showed a prairie style house on Summit Street and said that she could not tell the difference
with this house between before and after, partly just because of the incredible expanse of eave
and because the eave itself is much more of a feature in this particular instance.
Bristow showed a photograph of a house for which the owner was given approval to remove the
gutter. She said it is a different style and is part way up the slope. Bristow said the owner
decided to repair and coat over the gutters, and the gutters were not removed. Miklo said the
plan was to actually remove the gutters and reinstall something very similar. He said the owner
was not going to change the molding. Bristow agreed that the molding was not going to be
impacted here, because the gutter is not down in the molding area.
Bristow said that the issue before the Commission is whether to approve removing the gutters,
removing the crown molding at the fascia, and installing K-style gutters. She said the staff
recommendation is to not do this and to repair the gutters instead. Bristow said staff has found
out from SHPO that if the Commission decides to allow the gutters to be covered over, the
recommendation is not to remove the crown molding but instead to install a half -round gutter
outside of that, keeping the molding and all of the architectural features and install the gutter
outside. Bristow said that one of the reference books discusses how to use that method instead
of using the K-style gutters.
Swaim stated that Litton is recusing himself from consideration of this, because he is the owner
of the house.
Ackerson said he is surprised that SHPO is recommending the half round gutters, which he
thinks that would be more obtrusive than the solution at 906 East Market Street. He said that in
that case, the K-style had a square base and almost looked like it had a crown molding on it and
is indistinguishable from before and after.
Bristow said that the K-style gutter has the floor that does stick out more than the molding. She
said she thinks that, from SHPO's viewpoint, it is the fact that they don't want the original crown
molding removed but want to maintain the architectural feature. Bristow said part of that is the
fact that the Secretary of the interior's Standards are very strong on being able to remove things
done to a house that are modern to put it back in more of an historic state. She said that if one
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 4 of 10
removes the crown molding, it is harder to replace than it would be to just add the gutters on the
outside, according to SHPO.
Miklo said another viewpoint of SHPO may be that the half -round gutter does allow for some
visibility of the molding behind it, whereas with the K-style, the molding is gone.
Durham said that to him it looks like the cornice on the College Street house is the thing that
one really wants to preserve. He said that the crown molding itself is secondary. Miklo said that
gets back to the guidelines, which say that one should repair the gutter instead of removing it.
Litton, the owner of the house, said that the half -round gutter would be acceptable to him. He
showed close-up photographs of the gutters. Litton said it is his opinion and the opinion of his
roofing contractor, Pat Lang, that the gutters have failed completely. Litton said he is having
water issues on the west side, and none of the gutters are draining properly. He said the pitch
somehow is now out of whack, and he has standing water issues.
Litton said that the gutters have been coated multiple times. He said he has met staff at the
house and has the bid from Anderson, who would remove any of the loose debris and then put
on another coat of EPDM. Litton said he does not think that is a long-lasting, viable solution.
Litton said the tuck pointing is close to being done, and then he will start getting all the old,
rotted wood off for a major exterior rehab. He said he needs the roof to be sound before he can
move forward on anything else. Litton said the guidelines do allow the roofline to be changed, if
the gutter system has failed, which is his opinion.
Lang said that, as a remodeler, he likes to get a feel for his customers. He said it is great to try
to preserve things, but people buy these houses, and they have no idea as to what they just
purchased.
Lang said that one cannot see the built-in gutters from the street or any place around the
building. He said that if one wants the historic replication, that's fine and he would like to see it
as well and have it be mandatory so that everyone knows that and he can tell people what they
just bought. Lang said that in this case, since one cannot see that from the ground, if the crown
is left, he can do a special edging that he can tie the back of that half -round gutter in so that he
can keep the ice from climbing up and inside. Lang said that all one would see from the ground
would be a half -round gutter hanging on the outside, like people did for one hundred years.
Lang said it would be nice if there is a feel that he can take with him to all of the hundreds of
bids that he does so he can help people with restoration. He said he loves what the
Commission does, but he needs a feel in the public of what can be done.
Bristow said that she drove around taking photographs today and had no idea that there was
such an extensive number of built-in gutters in Iowa City. She said the one article discusses the
fact that they can be repaired. Bristow said they do have about a 100-year lifespan, and a lot of
these homes have hit that point. She said this will be coming up a lot.
Ackerson asked if the Commission is allowed to take into account the incremental expense of
restoring gutters like this. He said he thinks this can get real expensive really fast, and it is not
very helpful to either local buildings or contractors if the Commission's response is that it does
not care how much it costs to repair the gutters. Ackerson said that if the Commission says
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 5 of 10
that, then these houses are going to be demolished, because they can't be repaired at a
reasonable cost and so they'll be torn down. He said that to him, that is not a very good
solution.
Miklo said that at this point, numbers have not been presented. Durham said he thinks it is in
the back of everyone's mind as these things are being reviewed.
Lang said that it is very, very expensive to make all the repairs to the wood itself. He said he
has modern underlayments he can put down, but then to put metal back in those, it gets to
$15,000 in a heartbeat, and that has nothing to do with the repairs to be made when peeling all
of that system up. Lang said he just did another copper solder on a house in Cedar Rapids that
cost $18,000 just to do a canopy roof.
Swaim asked if, when one is talking about altering the roofline, is that because the layer at the
end would be removed. Bristow said it is because basically the roofline comes down, and then
it is supposed to catch in the pan that is the gutter, and then there is the crown molding. She
said the roofline would come down, but it would go over to the end of the gutter instead of to the
inside of the gutters. Bristow said it would go over to the outside, and then the gutter would be
on the outside of that. She said the guidelines do show a diagram that shows the roofline not
being straightened out but kind of ending in a lower slope over the gutter itself.
Swaim asked if the half round gutters would obscure the crown molding. Bristow said the half
round gutters are preferable for a couple of reasons. She said that the half round gutters
themselves are more historic than modern, K-style gutters. Bristow said the K-style gutters
require the removal of the crown molding so that there is a flat fascia so there is a flat back wall
of it. She said that with the half round gutter, since it curves up, one could feasibly see up in
between and see the crown molding. Bristow said it would not be overly visible from the street,
but there is the fact that the molding still exists.
Agran said that costs are not supposed to be part of the decision -making process. Having said
that, he said it seems to him that in the packet it does not say one must do this or the house will
be ruined. Male said he thinks that two feasible options have been presented. He said one
option is that the gutter is abandoned, the roof is bridged, and a somewhat equally historic half
round gutter is put on, which seems acceptable to him.
Agran said the other recommendation is to fix this, which the Secretary of the Interior seems to
think is something possible. He said if the Secretary of the Interior thinks it is possible, then he
thinks there must be some degree of possibility there. Agran said that whether that fix will last
another 100 years, perhaps they need to be made out of a different material or totally rebuilt.
Durham said that we are very comfortable as a society and as a Commission with putting
asphalt roofs on that do not last another 100 years. He said that the standard that something
has to last 100 years and costs a fortune is a possibility and the two options provided and
recommendations in the report seem like viable options to him. Durham said that if someone
wants to go back and take off the bridging and restore the gutters and take off half round
gutters, then they can do that. He said that both of the options seem good to him.
Michaud asked about the EPDM and if four coats would be required. Bristow said it would
actually be a liquid material, not EPDM. She said it would be something that would literally be
hand painted on.
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 6 of 10
Lang said the reason to put coatings on is that, although the metal itself is infallible, it is either
rusted through or there is so much wood damage below it that coats of things are put on it just
to get by.
Bristow said the research in the articles discussing built-in gutters talked about multiple things,
including the fact that if the gutters are going to be repaired that they not be coated, that one
takes out what is there, repairs any of the rotten wood and relines them with a metal that could
feasibly be repaired in small sections. She said the metal itself is literally soldered in between
the pieces so that one can make repairs anywhere along the line. Bristow said that is why it is
said that they have such an extended life.
Bristow said that at one point in our history, those were considered as something that could be
easily repaired by almost anyone, because of the fact that people had more knowledge about
how to do those things. Because this is a gutter that has a greater width and more structure,
she said it is more solid and would last longer than a modern applied gutter that people have to
have applied more often. Bristow said that they are also supposed to have a greater ability,
usually, for holding water and getting rid of water, because they are supposed to be so much
more expansive.
Bristow said these gutters look like they have been coated and filled multiple times, so they
don't have quite the capacity that most of the gutters she has found would have.
Bristow said they also are supposed to allow things like leaves to just blow out of them, because
they are not as narrow as an applied gutter. She said the holes for the downspouts are
supposed to be bigger than on modern gutters, so they are not supposed to clog like modern
gutters do. Bristow said that is why they were used so much, but they do have to be
maintained.
Durham said another thing to note is that buildings settle with time. He said that then there are
issues like this, where material is pooling in the low spot.
Lang said that when metal is filled with ice and there is nothing but a wood structure below it,
the condensation from frost and moisture is what destroys material. He said they did not have
our modern underlayments. Lang said that a special, high temperature ice guard is now put
underneath all the built-in gutters. He said that is impervious to temperature. Lang said those
modern products have to be put underneath, because when one puts a wood structure under
metal, the life of that is subject to the most severe winters. He said they were always rebuilding
those houses, because there is no protection below that.
Lang said that is when people started hanging gutters on the outside. He said that people quit
using built-in gutters, because there is so much maintenance. Lang said there is so much ice,
and there could be ice in the gutter five months out of twelve.
Michaud said it seems that the Commission has approved changes for the covering over of
built-in gutters previously. She said she would agree with Ackerson's perspective, as far as
changing the roofline slightly.
Agran said that changing the roofline is a recommended option. He said that there is no issue
with changing the roofline per se, but the issue is with the gutter system and removing the piece
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 7 of 10
of crown molding. Agran said his understanding is that it is okay to bridge this and then use a
half -round gutter or repair the built-in gutter.
MOTION: Durham moved to approve a certificate of appropriateness for the project at
1009 East College Street as presented, with the provision that half round gutters be
installed and the crown molding be repaired and maintained. Michaud seconded the
motion. The motion carried on a vote of 9-0 (Sandell absent and Litton abstaining).
Swaim said Lang talked about the need for contractors to get a sense for what is allowed and to
do that proactively. Swaim asked Lang if he had any suggestions for the Commission on how to
get the word out on the importance of the guidelines so people do not do things that are
disallowed.
Lang stated that he recently talked to the Linn County Historical Society. He said they
discussed the lead -based paint law and that if he touched any house built before 1977, it gets
into another whole realm of removal and restoration of the paint itself. Lang said he received
the letter regarding the boundaries in Iowa City, and it was very beneficial to now know the
boundaries.
Lang said that the Linn County Historical Society is going to put together a document of historic
things that they would like a realtor or a homeowner who is selling a house to have and that
would be accessible to the public. Swaim stated that the guidelines are available online, but the
Commission is always looking for ways to make the public more aware.
REPORT ON CERTIFICATES ISSUED BY CHAIR AND STAFF:
Certificate of No Material Effect — Chair and Staff Review.
620 South Summit Street.
Bristow said the owner was doing some soffit, siding, and shutter repair and window
replacement or. the south side and the rear of this house. She said the rear of the house has
quite a few windows that are non -historic. Bristow said this was found mid -project; the owner
did not talk to the City first.
Bristow said staff believes that everything the owner was doing is correct but did not have a
before image.
714 North Van Buren Street.
Bristow said the owners of this house contacted staff about reroofing and removing the
chimney. She said staff talked the owners into tuck pointing the chimney instead. Bristow said
the owners are also replacing the asphalt shingles.
530 Ronalds Street.
Bristow said the house had a little area in a roof bridge where the side wall was not brought out
flush with the fascia and water was getting in. She said the owners needed to move the little
side wall out and repair some of that.
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 8 of 10
Bristow said that on the bay, there were some crown molding problems and some roofing
problems. She said the owners were repairing the standing seam and the molding and not
changing anything.
Minor Review — Preapproved Item — Staff Review.
1115 Sheridan Avenue
Bristow said this property came up previously, because the owners were doing some porch
repair. She said the owners replaced the stucco base of the porch column on the corner and
did a really nice job.
Bristow said the owners wanted to repair the storm windows on the bay instead of replacing
them. She showed a photograph with the modern storm door that was framed down shorter
than the historic wood front door. Bristow said the owners wanted to put in a storm door that
would actually fit, so they wanted to take out that little build down area and get the right size
wood door, instead of an aluminum storm door.
DISCUSSION OF HISTORIC PRESERVATION AWARDS.
The Commission reviewed the award nominations from the award subcommittee
MOTION: Corcoran moved that the Commission accept the report of the subcommittee
regarding the historic preservation awards and approve them. Durham seconded the
motion. The motion carried on a vote of 10-0 (Sandell absent).
Swaim thanked the subcommittee members for their work. She said that a form is sent out to
the property owners to ask for details about their projects. Bristow said the awards ceremony is
to be held January 21.
Swaim said that there was a fire at 623 College Street. She said that she and Bristow and Alicia
Trimble have discussed with the owners what they would like to do and what the guidelines say
about potential demolition of the house. Swaim said the last she had heard, the owners have
not yet decided what to do.
Bristow said that when she was looking at the past agendas for discussion of gutters, she found
another house that had a fire in May that did not come before the Commission to approve the
demolition until November. She said she does not know what that means for the timing of the
College Street house if the owners decide they want to save it, but it may not be under as much
of a time crunch as she had thought.
Mikio stated that the City Council will be considering a rezoning of the City Hall parking lot next
to the Unitarian Church. He said that, as part of that package, the Unitarian Church would be
designated as a landmark to allow the development rights to occur on the City property. Miklo
said for that to happen, the City property needs to be rezoned, and that is what the City Council
is going to be considering in January.
Miklo said it is a very complex project, in that it would include replacing the City parking lot with
new parking for the City fleet vehicles and employee parking. He said it would involve a new
fire station with drive -through bays where the addition to the church was torn down. Miklo said it
HISTORIC PRESERVATION COMMISSION
December 10, 2015
Page 9 of 10
would involve residential, townhouse -style buildings lining the parking structure on Iowa Avenue
and Van Buren Street. He said there would be an additional three floors of apartments in the
middle of the block above the parking garage.
Miklo said the project requires not only zoning but some sort of agreement in terms of transfer
development rights. He said that the City would own some of the property but sell parts of it for
air rights above the garage.
Miklo said that Swaim spoke to the Planning and Zoning Commission, but not on behalf of the
Commission, about this. Miklo said it is in line with the letter the Commission sent to the City
Council several months ago. He said it is hopeful that the church can be preserved as part of
this larger, complex project.
Michaud asked if there will be any consideration for design compatibility of the protruding
second and third stories. Miklo answered that the CB-5 zoning designation that is working its
way through does have design guidelines and requirements that would apply to the property.
Corcoran said the view of Iowa Avenue toward the Old Capitol is very important. Miklo said that
is why that aspect of the project is proposed to be limited to four floors.
Michaud said it is her understanding that the setback is going to be maintained in line with the
next block east on Iowa Avenue. Miklo responded that the setback will be similar to what the
church's setback is.
CONSIDERATION OF MINUTES FOR NOVEMBER 12, 2015:
MOTION: Corcoran moved to approve the minutes of the Historic Preservation Commission's
November 12, 2015 meeting, as written. Wagner seconded the motion. The motion carried on
a vote of 10-0 (Sandell absent).
ADJOURNMENT:
The meeting was adjourned at 6:39 p.m
Minutes submitted by Anne Schulte
HISTORIC PRESERVATION COMMISSION
ATTENDANCE RECORD
2015-2016
NAME
TERM
EXP.
12M 1
118
2/12
3112
4/9
5114
6/11
719
8113
9110
10/8
11112
12/10
ACKERSON, KENT
3/29/16
X
x
X
x
X
x
X
x
X
X
X
x
X
AGRAN, THOMAS
3/29/17
X
X
X
O/E
X
X
X
X
X
O/E
X
X
X
BAKER, ESTHER
3/29/18
X
X
O/E
X
X
X
X
X
x
X
x
x
CLORE, GOSIA
3/29/17
O/E
X
X
X
X
O/E
O/E
01E
X
O/E
X
X
X
CORCORAN, KATE
3/29/16
X
X
X
x
X
x
X
X
O/E
x
O/E
x
X
DURHAM, FRANK
3/29116
X
x
O/E
x
O/E
O/E
X
X
X
O/E
X
x
x
LITTON, ANDREW
3129/17
X
01E
X
X
X
X
X
X
0/E
X
X
X
X
MICHAUD, PAM
3/E9/18
X
x
X
x
X
X
O/E
X
X
X
X
X
SANDELL, BEN
3/29/17
X
X
X
X
x
X
O/E
X
x
X
X
X
O/E
SWAIM, GINALIE
3/29/18
X
X
X
X
X
X
X
X
X
X
X
X
WAGNER, FRANK
3/29/18
0/E
O/E
O/E
X
X
O/E
X
O/E
O/E
O/E
X
X
KEY: X = Present
0 = Absent
O/E = AbsentlExcused
--- = Not a Member