The ballot proposal opponents raise the specter of bulldozers coming up Main Street to knock down buildings and houses to construct a big four-lane highway.
They’re making it all up.
When one resident asked at the September 23 special city council meeting what in the ballot proposal would allow that, Historic District Commission (HDC) commissioner Melissa Luginski answered as follows:
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- “It’s not in the amendment.”
- It’s in the “consequences,” the “impact” of the ballot proposal.
- If the charter “takes over” and “tries to supersede the [historic district] ordinance,” “those protections [of the ordinance] are no longer there.” (She gave an incorrect citation for the state Local Historic Districts Act, but we assume that is what she was referring to.)
- Federally-funded highway projects will no longer need to consider the effect on historic properties because Clarkston is no longer under the historic district ordinance “and the charter owns the historic district,” something she referred to as a “106 review.”
Sounds scary!
But being scary is what the campaign against the proposed HDC charter amendment set up by Melissa Luginski’s husband, Joe Luginski, is all about. Their campaign is long on fear, short on facts, and has no problem lying about things to scare Clarkston voters – like sending a postcard to you with a one-liner telling you to “Vote no if you are against a FOUR LANE Main Street” and never, ever explaining why you should believe that claim.
I thank Mrs. Luginski for candidly admitting that there is nothing in the ballot proposal that would result in a four-lane Main Street. The remainder of her reasoning is unsound and not based in fact.
The basic premise of Luginski’s argument is that the ballot proposal will abolish the city’s historic district ordinance and ignore the state Local Historic Districts Act, so that the “charter owns the historic district.” True, a city’s charter takes precedence over its ordinances (but not over state law). But there is nothing in the ballot proposal that can be read as saying “the charter owns the historic district.”
The ballot proposal specifies procedural requirements for the HDC to follow—things like giving advance notice to property owners before enforcement action, trying to informally resolve disputes before taking formal enforcement action, and getting city council approval before taking measures that would cost the city significant fees that were not previously budgeted.
The ballot proposal does not disband the historic district.
The ballot proposal does not disband the HDC.
The HDC will continue to have the authority that state law and the local ordinance give it. It will continue to operate in the vast majority of cases without any changes—considering and approving or negotiating changes in applications for work that changes the exterior appearance of a building. And, with city council approval, it will continue to have the authority to order owners to take action when there is “demolition by neglect” or work that was improperly done without a certificate of appropriateness. In fact, the ballot proposal expands HDC authority by allowing it to issue civil infraction citations and fines when that is justified, something the HDC currently has no authority to do.
So, the basic premise of Luginski’s argument is false: the ballot proposal does not supersede the historic district ordinance and does not take away the protections for the district that are mandated under state or federal law. Luginski’s theory that there would be no more historic district in Clarkston is plain wrong. The ballot proposal preserves the district, preserves the HDC, and even increases its authority.
But, even if Luginski’s theory that there would be no more historic district were correct (and it’s not!), that has nothing to do with federally-funded highway construction (which is what Luginski was getting at when she referred to the “106 review”). To understand why, one must dive into a complex set of federal statutes and regulations, which I will try to summarize here. But the bottom line is that federal authorities must consider the effect of federally-funded projects on historic properties regardless of whether they are part of a formal historic district.
The basic requirement is that the Secretary of Transportation may not approve a project that requires land from a “historic site” unless there is no other feasible alternative and the program uses “all possible planning to minimize” the harm. 23 USC 138(a)(1), (3). (USC is an abbreviation for United States Code, the compilation of federal statutes.) Also, the head of any federal agency that has jurisdiction over a federally-funded “undertaking” must “take into account the effect of the undertaking on any historic property.” 54 USC 306108.
What is a “historic property”? It’s a property that is included on (or eligible to be included on) the National Register of Historic Places. 54 USC 300308. Clarkston’s historic district is on the National Register. It was placed on the register on May 15, 1980. You can find it on the National Park Service’s web site on the National Register, and I’ve linked to Clarkston’s 89-page application and approval for being placed on the National Register here.
So, the “protection” that Luginski theorizes will be lost is not dependent on whether there is a historic district at all. It depends on Clarkston’s listing on the National Register of Historic Places. And that’s something that the ballot proposal doesn’t mention and doesn’t affect. Clarkston is on the National Register and has been since 1980. Even if there were no historic district, Clarkston would still be listed on the National Register and the limits on federally-funded highway projects would apply regardless of the ballot proposal, just as those limits apply today.
But wait, you say. If we destroy the historic district, doesn’t that mean that Clarkston will lose its National Register listing?
No!
Because listing on the National Register has nothing to do with whether there is a historic district under state law. The Secretary of the Interior sets the criteria for including a property on the National Register. 54 USC 302103(1). The Secretary must promulgate regulations for including properties. 54 USC 302103(2)(E). Those regulations are in the Code of Federal Regulations at title 36, part 60. The criteria for including a property on the National Register are at 36 CFR 60.4. That regulation contains a whole list of pretty subjective criteria that includes, for example, a property’s “distinctive characteristics of a type, period, or method of construction.” 36 CFR 60.4(c). You can look up the whole list. Nothing in the list requires that the property be in a historic district under state law. Clarkston qualified in 1980 when it was listed on the National Register. And it’s still on the register.
So, Clarkston is on the National Register now and has all the protections under federal law that limit use of federal funds affecting historic property. And once you are on the register, it’s hard to get off. 36 CFR 60.15 is the regulation about removing properties from the National Register. The only basis for removing Clarkston from the National Register is that “The property has ceased to meet the criteria for listing in the National Register because the qualities which caused it to be originally listed have been lost or destroyed ….” 36 CFR 60.15(a)(1); § 60.15(b) (this is the only condition that applies to properties listed before December 13, 1980).
There’s a long procedure for someone to petition to remove a property from the National Register. 36 CFR 60.15(c)-(k). So, someone would have to petition to remove Clarkston and get a favorable decision for removal. But what could removal be based on? Clarkston met the criteria for listing on the National Register in 1980 and nothing of any significance has changed with respect to the properties since then. You can read the extensive description of historic properties and of Clarkston’s history in Clarkston’s application to be listed on the National Park Service’s web site and see that the properties described there, and their historical significance haven’t changed since 1980.
Clarkston is and will remain on the National Register of Historic Places. And that means that the federal limits on use of federal funds affecting historic property remain in place, even if there were no historic district. But, since the ballot proposal preserves and enhances the historic district, that is all the more reason why Clarkston will remain on the National Register.
Luginski’s theory is just wrong. The bulldozers will not be coming up Main Street. These historic properties are protected by limits under federal statutes that have nothing to do with what is in the ballot proposal.
Guest post by Richard Bisio.
(If you’re tired of HDC abuse and favoritism, then please consider voting yes on the proposed HDC charter amendment on November 5! And because I’ve just said that and even though I haven’t spent any money, I’m going to add the following text though I’m not sure I have to:
Paid for by Susan Bisio, P.O. Box 1303, Clarkston, MI 48347 with regulated funds.)