Please note that I’ve referred to the Local Historic Districts Act (MCL 399.201, et seq) as the LHDA, the Clarkston ordinance (152.01, et seq of the Clarkston Code of Ordinances) as the Clarkston Ordinance, and the HDC charter proposal as the Charter Proposal.
Discussion:
LHDA, MCL 399.205(12), and Clarkston Ordinance 152.07(M), concern work that affects the exterior of a resource that a property owner has done without first receiving permission from the HDC through a “Certificate of Appropriateness.” This section of the LHDA and the Clarkston Ordinance allows the HDC to order a property owner to restore the property to the condition it was before the unapproved work was done or to modify the work that was done so that it qualifies for a Certificate of Appropriateness. If the owner doesn’t comply with the HDC’s order to restore or modify the work within a “reasonable” period of time, then the HDC can seek a court order compelling the owner to do so. If the owner can’t or won’t comply with the court order, then the HDC or its agents can enter onto private property and forcibly perform the work against the property owner’s will until the property can qualify for a Certificate of Appropriateness. All costs of repairs are charged to the owner and may also be levied as a special assessment against the property.
Similar to “Demolition by Neglect” orders, the Charter Proposal recognizes that “Restoration and Modification” orders are discretionary. It adds the extra step of involving the city council before the HDC enters an order against a property owner for “Restoration and Repair” and before seeking a court order to hire people to enter onto private property and forcibly start HDC-ordered repairs against the property owner’s will.
This means the HDC must explain to the council why such an order is required, including a detailed description of the restoration and modification work the HDC thinks is necessary, the time period during which the property owner must start and complete the work, a cost estimate for the restoration and modification work, and the basis for the HDC’s claim that the original work required a Certificate of Appropriateness in the first place. And, if the property owner doesn’t comply with an approved order within a reasonable period of time, then the HDC must present its case to the city council before seeking a court order to compel repair for the claimed “Restoration and Modification,” including a proposed plan for entry and repair, a proposed court order that it wants a judge to approve, and a detailed statement of the HDC’s efforts to obtain compliance and the reasons why compliance wasn’t achieved.
At both points, the city council can ask questions and approve, reject, send the HDC’s request back for revision, or take any other appropriate action. Approvals involving an HDC “Restoration and Modification” order, or an HDC request to obtain a court order, require a vote of five council members.
Notes:
The reasons for requiring council approval before an order involving “Restoration and Modification” is entered against a property owner in the historic district are similar to the reasons why the council should be involved in “Demolition by Neglect” orders. HDC commissioners are merely historic preservation hobbyists and aren’t required to have any special credentials to serve on the HDC. City council approval is appropriate because the city council is accountable to Clarkston voters, controls the purse strings, allocates money toward the legal services budget, and has the city attorney present at every council meeting to advise them (as well as the HDC commissioners seeking approval of such an order). The HDC shouldn’t fear council questions for “Restoration and Modification” orders. As with “Demolition by Neglect” orders, it’s better to address any holes in the HDC commissioners’ logic before an order is issued, because a judge will certainly ask questions.
The HDC hasn’t entered any “Restoration and Modification” orders that I’m aware of, though they’ve suggested they might do so in connection with a window replacement that occurred at a home on Miller Road and when they threatened to bulldoze a resident’s fence. I suspect the Miller Road homeowner had the misfortune of hiring a contractor that unbeknownst to her didn’t apply for a permit, since that seems to be the usual reason why a homeowner manages to attract negative attention from the HDC. (Permit requests for work to be done within the historic district are automatically forwarded to the HDC for review, but if a contractor doesn’t request a permit, then no one at the city will be aware the work is being done until after the fact.)
It’s easy to see why a homeowner might want to hire a lawyer in the window replacement cases because the HDC has indicated its preferred way of approaching the problem is to have the homeowner rip out the new windows and replace them with significantly more expensive windows that “look more historic,” which has the effect of making the homeowner to pay twice for windows. As with “Demolition by Neglect” orders, an HDC “Restoration and Modification” order can prompt an expensive lawsuit. City council involvement is appropriate because taxpayers will be forced to foot the bill for the city attorney to defend the HDC’s actions.
As explained in the “Demolition by Neglect” notes above, if the property owner doesn’t appeal but also doesn’t comply with the HDC’s “Restoration and Modification” order, it’s not a simple thing to “get a court order” because the city attorney will need to draft and serve a lawsuit complaint and motion asking for a court order on the property owner at taxpayer expense. Property owners would be foolish not to hire their own lawyers and force the HDC to prove its case in court, which can become extremely expensive for both sides if extensive discovery is involved. Taxpayers will have to pay for the city to hire an expert witness if that type of testimony is needed in the case because HDC commissioners have no particular qualifications that make them court-qualified experts.
The Charter Proposal very rationally requires the HDC involve the city council before the HDC embarks on what could be very extensive (and expensive) proceedings and/or litigation the taxpayers will have to pay for. We think our elected officials should be on board before that happens.
Please note that a “Restoration and Modification” order is unique and entirely different than the standard application process that occurs at the HDC’s regular meetings when the HDC approves, disapproves, or asks for more information about an application before approval or disapproval. The Charter Proposal doesn’t affect that process at all.
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)