Elizabeth Schrey received late yesterday a copy of the letter sent by Bill Weeks, who heads the City’s Inspection Services, to contractor Greg English. The letter officially suspended the demolition of the John Sunday House on Romana Street until the Zoning Board of Adjustments reviews Schrey’s appeal of Pensacola Mayor Ashton Hayward’s decision to permit the demolition without approval by the city’s Architectural Review Board (ARB). That hearing will be on June 15. Read JSunday_Stay.
Schrey told Inweekly that the reason the stay order was sent to English and not the owner of the property was the city had already issued the demolition permit. Fortunately, she had filed the appeal before the demolition work had commenced.
Meanwhile attorney Erick Mead, who serves on the ARB, has questions about the mayor’s decision to overrule the ARB decision to table the demolition issue until its next meeting. Late Tuesday night, he sent this email to Weeks. Mead wants Weeks and City Attorney Lysia Bowling to attend Thursday’s ARB meeting.
He has asked Bowling to “assist us on a question of our process in demolition applications for contributing structures, and the interoperation of the City’s Boards and officials in this regard.”
Dear Mr. Weeks:
I write personally as a City resident concerned about the City’s review processes, and as a member of the ARB concerned about my duty to assure the integrity of my Board process as laid out in the City Code, and its purposes of protecting historic structures in districts conferring such protection.
As I was in trial today, I earlier asked Board staff to ask Ms. Bowling on my behalf if she may attend our Thursday ARB meeting to assist us on a question of our process in demolition applications for contributing structures, and the interoperation of the City’s Boards and officials in this regard. As I have returned from my trial this evening, I repeat that request to her personally now, by copy to her of this email. I likewise personally ask if you might also attend and assist with your experience and perspective, and because of your further review role under the Code as noted below. As courtesy and appropriate notice to the interested parties of my below stated concerns in this regard, I also copy Mr. Charles Liberis, Esq. since he has appeared before the ARB on the matter that prompted my process questions.
I intend to move at our next ARB meeting in open forum for the ARB to invite Ms. Bowling’s input on these process questions, I have as addressed in this email. While I am a lawyer, I recognize that I am one Board member only, that I do not represent or advise the ARB or the City in my capacity as an attorney. Hence, my concern that we as a Board be properly advised by the City Attorney. But in faithfully carrying out my duties as an ARB member to support the City Charter and its Code, I cannot fail to note legal concerns that I do see, and bring them to the attention of the appropriate persons.
My process questions arise from the following.
If I understand correctly, the City building official may proceed tomorrow on issuing a demolition permit for the contributing structure in the Governmental Center District. Board staff has informed the ARB members that a City Attorney opinion, (which I have not yet seen), has concluded that the disposition of the demolition application for 302 W. Romana St. (the John Sunday house) will be effectively taken from the ARB by your issuance of a building permit to be applied for, reportedly tomorrow, Wednesday, April 18th, before the ARB meets the next day on Thursday April 19th.
The Governmental Center District in which the property is located, is assigned to the ARB for review by Section 12-13-3 (E) with the following applicable directions:
“It shall be the duty of the board to approve or disapprove plans for buildings to be erected, renovated or razed which are located, or are to be located, within the historical district or districts and to preserve the historical integrity and ancient appearance within any and all historical districts established by the governing body of the city, …”‘
Section 12-2-22 (B)(2) sets forth review and approval authority for the Governmental Center District by the ARB and states that review and approval by the ARB will be according to the standards of Section 12-2-2 “applicable to the historic zoning districts.”
As a policy matter, I believe that essentially allowing a “default” demolition of a historic structure governed under historic district standards and now under pending review by ARB required by the Code is deeply contradicted by the applicable historic district standards governing that review. See Section 12-2-10(A)(9):
“Demolition of a contributing structure constitutes an irreplaceable loss to the quality and character of the Historic District and is strongly discouraged. Therefore, no permit shall be issued for demolition of a contributing structure unless the owner demonstrates to the board clear and convincing evidence of unreasonable hardship.”
But more pointedly, I also am concerned that it may be legally premature for any demolition permit to issue, without further review by the City — and by your office — of the City’s requirements. I do not believe the ARB process is complete or concluded in accordance the Code, and as a member of the ARB I am obviously concerned that it be properly completed in accordance with the Code. I will outline the sources of my concern in that regard.
It is my understanding that this reported conclusion on issuing a permit because of delay beyond 31 days flows from Section 12-13-3 (G), which reads:
“Review and decision. The board shall promptly review such plans and shall render its decision on or before thirty-one (31) days from the date that plans are submitted, to the board for review.”
It is reported to me that a permit may issue Wednesday by your office under the following provision of Section 12-13-3(I):
“Failure to review plans. If no action upon plans submitted to the board has been taken at the expiration of thirty-one (31) days from the date of submission of the plans to the board for review, such plans shall be deemed to have been approved, and if all other requirements of the city have been met, the building official may issue a permit for the proposed building.”
I have significant concerns about this report and the apparent conclusion. I sincerely hope I have misunderstood them, thus my hope that the matter can be properly discussed by all concerned and publicly on Thursday, before the status quo may be altered incautiously.
The first concern is that review of ARB actions (or omissions of required actions) by aggrieved persons is to the City Council under the Code, not city executive officers. Section 12-13-3(M). I am unaware of any authority that exists to change this route of review from the ARB for aggrieved parties. Unless I am missing something — only the City Council can immediately review and correct a claim of substantial or procedural error by ARB, not an executive officer. It also seems to me that any question about coincident or adjoining responsibilities of City Boards and officials established under the Code, would also be appropriately addressed to the City Council, if there were any question on that score.
Demolition of contributing historic structures under historic district standards has a separate demolition process Section 12-2-10(A)(9) very different from that demolition process discussed in 12-13-3. As noted above, those historic district standards govern in the Governmental Center District. Ordinarily, to my understanding, the more specific Code provision controls over the more general.
It is my understanding that this recent delay by tabling for information brought about the present proposed permit issuance. However, some delay by ARB is contemplated by the Code in review for demolition of contributing structures. The process for contributing structures under historic district standards in Section 12-2-10(A)(9) does not have this strict 31 day time limit that is in Section 12-13-3(I), though Section 12-2-10(A)(10) for “other demolition permits” has a 30 day determination requirement. Conversely, See Section 12-2-10(A)(9) on demolition of contributing structures has no time limit and contemplates delays for additional information to show necessary hardship – and entirely consistent with my understanding of longstanding ARB practice:
“Demolition of contributing structures. Demolition of a contributing structure constitutes an irreplaceable loss to the quality and character of the Historic District and is strongly discouraged. Therefore, no permit shall be issued for demolition of a contributing structure unless the owner demonstrates to the board clear and convincing evidence of unreasonable hardship. Provided, however, nothing herein shall prohibit the demolition of a contributing structure if the building official determines that there is no reasonable alternative to demolition in order to bring the structure in compliance with the unsafe building code. When the owner fails to prove unreasonable economic hardship the applicant may provide to the board additional information which may show unusual and compelling circumstances in order to receive board recommendation for demolition of the contributing structure.”
Delay is necessary to obtain requested information, and in a Board that meets monthly, to conclude that no delay beyond 31 days is possible would eviscerate the provision authorizing requests for information on contributing structures – or else require outright denial as a condition of requesting information – which is nowhere said – and would likely simply multiply applicants’ application fees to no purpose other than to afford needed delay for information.
The audio record I have reviewed of the last ARB meeting on this requested demolition shows the applicant had agreed to a 30-day extension from the first meeting on the demolition application. We are now pending a 60-day tabling for more information on possible private sales or preservation efforts to relieve the hardship and save the historic house. While I heard opposition to the merits of the motion to table stated in the hearing audio – I heard no objection to the authority of the Board to delay by tabling for further information.
Section 12-2-10(A)(9)(c) further provides a mandatory six month moratorium on even a recommended or approved demolition of a contributing structure to allow designated public efforts at preservation to take place:
Recommendation of demolition. Should the applicant for demolition of a contributing structure satisfy the board that he will suffer an economic hardship if a demolition permit is not recommended, or, if in failing to demonstrate economic hardship, the applicant demonstrates unusual and compelling circumstances which dictate demolition of the contributing structure, either a recommendation for demolition or a recommendation for a six-month moratorium on the demolition shall be made.
In the event that the board recommends a six-month moratorium on the demolition, within the moratorium period, the board shall consult with the Historic Pensacola Preservation Board, the city of Pensacola and any other applicable public or private agencies to ascertain whether any of these agencies or corporations can preserve or cause to be preserved such architectural or historically valuable buildings. If no agencies or organizations are prepared to preserve the building(s) or cause their preservation, then the board shall recommend approval of the demolition.
(To me) it appears ARB is within its Code authority in its present 60 day extension for additional information on possible private dispositions to relieve any arguable hardship under the Code without demolition of the historic house. ARB does not appear (to me) have been divested of its jurisdiction to complete the remaining review process that has not been concluded. In any event, I am concerned that the required 6-month moratorium on a demolition permit be observed , as the Code also requires, for the mandated public preservation efforts — if and when, or by whatever process — a demolition might be lawfully approved.
For these reasons, I sincerely request that much deeper consideration be given by the City and, most immediately, by your office, in accordance with Section 12-13-3(I) to assure that “all other requirements of the city have been met,” before the building official issues any demolition permit. Among other things – approval of replacement construction plans – including ARB approvals, appears to be required before demolition permits may issue.
I greatly encourage you to come to the ARB meeting Thursday to help address these process questions, which I will move to discuss in open forum, as Board staff has suggested this is appropriate for an emergent process issue such as this. The merits of the application that prompted the concern, if I understand it correctly, are still tabled to receive the information.
Cordially,
George R. Mead, II
(Erick Mead)