For eleven years the neighbors to 107 East 5th Street have suffered the ugliness and hazards of the rotting hulk of an old log house that the City’s inspectors deemed ‘Condemned’ back in 2004. The house had been unoccupied since late last century. The owner had died and his heirs declined to take title. City taxes were unpaid and it was on the City’s ‘blight list’ for remedial action. But in the memorable words of historic preservation commissioner Carrie Albee at an earlier hearing they’d rather see it sit here and slowly “turn to dust than vote for its demolition.”
So it just rotted, turning slowly to dust for eleven years after its official ‘condemnation.’
The Commission’s Guidelines do say: “Demolition will be considered only when all possible alternatives to preservation have been exhausted.” (p147)
By August 28 at the Commission’s third hearing on the 2014 demolition application it was a foregone conclusion that demolition would finally get the Yeas. Only question in the mind of this follower of HPC sagas was whether Albee herself would let go. Or get the support of fellow bitter-ender Dan Lawton. Albee’s Better-let-it-turn-to-dust sentiment is ultimately not politically viable. Her fellow commissioners can see that there are limits beyond which they risk the whole historic regulation enterprise with further resistance.
So while expressing misgivings and regrets they voted August 28 for the building to come down. (6 Cybularz, Simons, Winnette, Parnes, Lawton, Tydings voted Yes, 1 Albee No.)
City staffer assigned the case, Christina Martinkosky tweaked her earlier reports sharpening the case to support demolition, while at the same time lambasting its owner Habitat for Humanity (Habitat) for its “neglect” of the structure. She started a background chronology: “2004- Property condemned by the City” but said reasons were “unknown.” Putting City condemnation ahead of the 2005 takeover by Habitat established clearly that it was in poor condition prior to Habitat getting it in 2005
Martinkosky took Habitat to task for being a “poor stewart” of the property but its “neglect” of the building was not the sole reason for its deterioration. Now it was to the point, she wrote, where “many character defining exterior features” (siding, roof shingles, windows and doors (almost everything!) were lost “making it unable to physically demonstrate significant aspects of its past.”
Given its “negative impact” on the neighborhood (everyone finds the rotting hulk repulsive – to use regular english) Martinkosky wrote that the staff supported demolition – conditional on efforts to salvage intact elements, full documentation of the building and protection of archeological items
But Martinkosky continued the charge that Habitat “has not been a good stewart” of the building, failing to engage Habitat’s argument that from the time it acquired the building its intention had been to demolish it. City officials approached Habitat after condemning it and sold it to Habitat with the understanding demolition would follow – according to uncontested testimony from then president of Habitat now county councilman Billy Shreve.
Why would anyone in their right mind do costly maintenance on a building they bought to demo?
Who would expect any owner to be a “good stewart” of a building that was slated for demolition from the time of its purchase, with every expert consulted saying the structure was beyond repair, and confirming the need for demolition. Especially when City officials themselves had come to Habitat in the first place asking them to take the tax-delinquent property to repeat a demolish-salvage-rebuild job they’d previously done at City request with another blighted building at another location (B&O Avenue.)
If you’ve got a brain in your head – ruling out many historic preservationists it seems – you don’t spend money to maintain or repair something you plan to demolish as soon as the City allows it. Since the intention was to demolish the 107E5th St hulk spending money on maintenance would have been irresponsible and wasteful.
Blunt talk like this was not to be heard from any voice of Habitat at this HPC hearing.
Danny O’Connor a suited-&-tie lawyer and director representing Habitat did a very professional lawyerly job of reiterating (1) the City’s 2005 approach to Habitat to take the log house on the basis that it “be dismantled and new affordable housing built” in its place, (2) Habitat’s many efforts to give the property to anyone wanting to do restoration once it was clear the HPC would block the City-Habitat plan (3) most of the deterioration had occurred before Habitat acquired the building as evidenced by the City’s prior ‘condemnation’ (4) the demolition application met the Guidelines in that retention of the building was not, quoting a clause in the Guidelines, in the interests of a majority of the nearby community.
New angle on Demolition by Neglect (DbN)
Attorney O’Connor had an interesting new take on the demolition-by-neglect (DbN) provision in the City Guidelines. Intended to punish people who let buildings go by denying them a demolition permit, the DbN clause in the Guidelines reads bluntly: “Contributing properties that are greatly deteriorated because of deferred maintenance will not be approved for demolition.” (p147) The Habitat lawyer pointed out that ‘general maintenance’ is defined in the Guidelines (p154) as “Ordinary maintenance needed tokeep a building or structure in good repair; generally requires minimal or no change in materials.”
O’Connor argued that the Demolition by Neglect (DbN) provision only applies to a building in good repair to start with since general maintenance is defined as keeping the building in good repair, and without major change in materials. A building like the log house hulk at 107E5th clearly couldn’t be maintained with general maintenance, and without major material changes. So it did not fit the DbN provision of the Guidelines. And therefore it followed the DbN clause providing for denial of a demolition permit could not apply in the case of the Habitat hulk.
No response from commissioners
None of the commissioners or staff discussed O’Connor’s point directly, just as they displayed no interest in the City’s agreement with Habitat in 2005 that the building be demolished. The Historic preservation Committee is a City agency administering City code according to City rules, its members appointed by the City, and serviced by City staff. its meetings held in City Hall. Yet the HPC chairman Scott Winnette at an earlier hearing quickly dismissed the idea that the HPC was bound in any way by any City commitments to Habitat.
Winnette said “they (City departments) come to us.” As if to say: we are above the City.
Commissioner Dan Lawton seemed to completely miss the argument that the DbN clause did not apply to such an already deteriorated building, asserting without any supporting argument that it was irrelevant which building owner had neglected maintenance. He then accused Habitat officials of “completely pass(ing) the buck to previous owners” saying it was clearly documented that serious deterioration to the log building occurred in the 2005 to 2015 decade of Habitat’s ownership.
It didn’t seem to register with Lawton that Habitat had bought the building at the suggestion of City officials wanting it demolished. Also escaping this man’s comprehension was the absurdity of expecting maintenance of a building from a party that had bought it to demolish and which was planning to demolish it, once allowed to.
Commissioner Carrie Albee was the only one to suggest the DbN provision is seriously unworkable, saying: “I’m struggling with what is the purpose of the DbN clause? If by definition when you get to that point (of deterioration) when you apply (the DbN provision) of course it is going to be structurally unsound, its going to be hard to restore, its going to be all these things that make it difficult to preserve. That is kind of a given… we need to think about this clause in this situation moving forward… there have been other cases and other cases (pending) in the city right now.”
Other problems with the Guidelines chapter on demolition
A major problem with the Guidelines is that they provide no real guidance on how the extent of deterioration should govern the classification of a building as ‘contributing’ or ’non-contributing.’ In the Habitat case Commissioner Rebecca Cybularz said that so little of the log house remained salvageable – perhaps 20% – it made no sense to class it as a ‘contributing (historic) resource.’ She got support in that argument from City staffer Christine Martinkosky, and Chairman Scott Winnette.
It seems like simple commonsense.
Commonsense not in HPC Guidelines
Trouble is nothing in 160 pages of the Guidelines provides any backing for the commonsense Cybularz approach.
The Guidelines’ Introduction chapter at page 15 instructs the Commission how to judge a building as a ‘contributing (historic) resource’ or as ‘non-contributing’ – the most important decision the Commission makes in every case before it. Three qualities make a building ‘contributing’ the Guidelines say – helping define the district, adding historic or architectural value, or being over 50 years old.
Note that the condition of the building doesn’t rate a mention.
The same applies in the discussion on ‘Deviation from the Guidelines’ (p17) Again amazingly the condition of the building is not mentioned as a consideration. Nor in the chapter on Demolition (Ch 11 p147on) does the condition of a building figure as a factor in whether it gets a demolition permit. The only exception to that is the problematic Demolition by Neglect provision discussed earlier which speaks to a “greatly deteriorated” condition that is NOT to justify demolition. Nowhere else in the demolition chapter is there any reference to the condition of the building and how that should affect devisions on a permit.
The closest the Commission comes to regular consideration of condition or state of repair is often done by deployment of the fuzzy high-falutin word ‘integrity.’ Both staff and commissioners sometimes talk about the “integrity” of a ‘resource’ (building) being ‘compromised,’ and they often mean it’s falling apart, rotting away, losing bits and pieces… But again they get little guidance for judging from the Guidelines.
The Guidelines do use the foggy term ‘integrity’ but paired with an adjective like ‘historic’ ‘architectural’ or ‘design’ or in respect of the streetscape or surrounding properties to mean compatibility. There is almost no use of the term in reference to the condition or state of repair of a building.
Another bizarre guideline
Another bizarre provision of the Guidelines makes it easier to demolish a building deemed “of unusual importance” than a building deemed of lesser importance (p149). A very important building may be approved for demolition if its retention would (1) be a deterrent to a major improvement program, or (2) cause undue financial hardship to the owner, or (3) not be in the interests of a majority in the community
These important openings for demolition are not available for other buildings – those deemed contributing but not of unusual importance, or non-contributing – see p149.
That must be a drafting mistake, surely, for there is no logic to making the demolition of ‘unusually important’ buildings easier than demolition of less important buildings. Or were the drafters of our Guidelines just spinning an Alice in Wonderland tease, pretending playfully they’d been turned into, say, the Important Buildings Clearance Commission.
The learned look
Rules of Procedure, 18. C. 17 (b) ii “Use of spectacles during public hearings: commissioners and staff behind the podium shall wear spectacles (eye glasses) neatly atop the head, nested in the hair if such they have.”