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HomeMy WebLinkAboutLandmarks WHS HP Commission Training Chapter 7Commission Preservation Processes Chapter 7 Page 1 – Due Process in Public Preservation Hearings Commissions should apply due process standards to all their proceedings and decisions to ensure fair and equitable treatment for all parties. A fundamental concept of the American legal system is the right to "due process," or equal treatment under the law. When due process is applied in the courtroom, the court's procedures are open and applied impartially and equally to everyone. This standard of fairness also applies to commissions and their proceedings. Due Process Standards Commissions should apply due process standards to all public hearings and property decisions they make. They can do this by:  Following set policies and procedures  Being impartial  Making consistent decisions based on established guidelines  Keeping clear and complete records Commissions should strictly follow their local public hearing policies and provide ample public notice of hearings. This can be done through individual mailings, published notices in local newspapers, and posted notices. Individual mailings should be sent to people who are most directly affected, such as owners and residents of the property in question, and adjacent property owners. Commissions should also keep the State Historic Preservation Office informed with copies of notices, agendas & meeting minutes. Applying Due Process to Public Hearings Public hearings should be held prior to governmental action affecting a property. Public hearings should be fair and efficient, and conducted in an orderly and business-like manner. It is helpful if at least one member of a commission has a good working knowledge of parliamentary procedures. For the proceedings to be fair, the hearing must:  Be held in a meeting open to the public  Give fair notice of the proposed action and the grounds asserted for it  Be conducted as an unbiased tribunal  Provide an opportunity to present reasons why the proposed action should or should not be taken  Provide an opportunity to present witnesses and relevant evidence  Include a record of the proceedings with a statement of reasons Public hearings have many of the same elements of courtroom proceedings, such as the presentation of evidence and testimony of witnesses. However, public hearings do not need to be as formal as courtroom proceedings as long as opposing interests have a reasonable opportunity to present their views. Most jurisdictions do not require that witnesses be sworn in at public hearings, but some municipalities have statutes that do require testimony under oath. Commission members should check with their local counsel to make sure they are complying with local laws. Any interested parties have the right to be heard at a public hearing and should be given the opportunity. The commission can set reasonable time limits, but these limits must be applied equally to all parties. For example, the commission may allot a set amount of time to each party with a brief opportunity for rebuttal, and they may allow anyone to submit written comments for a period of time following the meeting. It is important that commission members treat everyone fairly and impartially throughout a public hearing. Members should be polite, respectful, and give speakers their full attention. They should never express personal feelings about individuals. Commissions should always maintain control and decorum and not allow a meeting to get out of hand or become disruptive. Good record-keeping of the proceedings is essential. Meticulous minutes will be helpful if questions arise later. In the case of an appeal, meeting minutes can help to support the commission’s decision. Hearings should be audio or video recorded, and transcriptions should be made available to the public. Page 2 – Defensible Decision-Making for Preservation commissions If a commission uses a reasonable and fair due process and follows legal policies and procedures, its decision-making record should be defensible in the case of an appeal or court battle. When rendering a property decision, a commission must follow its own established criteria. By linking its decision to the applicable criteria, the commission will make certain that each party is treated fairly, and commission decisions will be consistent from case to case. General Decision-Making Practices When making a decision, commission members should follow these general practices:  Listen closely to the evidence presented by both proponents and opponents, ask questions to clarify issues, and weigh the facts against the criteria.  Base decisions on only the evidence provided.  Avoid making a decision on a case until all the evidence and testimony has been reviewed.  Clearly explain and present the rationale behind all decisions. If a commission member has a conflict of interest, whether personal, financial, or otherwise, he or she should excuse himself from that particular case. If it is unclear whether or not a conflict of interest exists, the member should consult the commission’s legal counsel. If a commission has provided reasonable and fair due process and followed its legal policies and procedures, its record should be defensible in the case of an appeal or a court battle over its actions or decisions. Review Process The following points for ensuring the efficiency and legality of the review process are based on an article by Stephen Dennis, former Executive Director of the National Center for Preservation Law:  Commission members must avoid appearing arbitrary or capricious. Decisions must be based on and supported by evidence presented at the hearing.  Commission decisions should be clear and comprehensible, with specific and substantial details that explain and support the decision in both the meeting minutes and decision letters to applicants.  Commission decisions should indicate the significance of the structure or district involved. The propriety of a decision might be based on the historical significance of a historic resource, and it is important to place the property in a context that can be easily and convincingly explained.  Commission members need to have a thorough knowledge of existing precedents. Decisions should be consistent with precedents and based on accepted criteria. If a commission approves a project and months later denies a similar project, the denied applicant could use the earlier decision against the commission in an appeal. If there are unique reasons or circumstances why a project is appropriate for one property and not another, the rationale must be clearly explained to justify the decision.  Commission members need to anticipate potential controversial issues and arguments that might come before them. Good legal counsel can help guide commissions on particularly complicated issues.  A commission should address each issue of an application individually. Some applications have a variety of issues that require separate decisions, and the commission must not allow the applicant to confuse the issues.  Commission members need to thoroughly question "experts" hired by applicants whose testimony does not seem credible. When a commission does not discuss or question testimony, it gives the appearance of support. If commission members question witnesses and challenge their assumptions and conclusions, the record will demonstrate the commission’s decision- making process.  Local preservation organizations or neighborhood groups can supplement a commission’s work on individual applications. When a commission is faced with powerful and influential developers, public support can boost the defense of a challenged commission’s actions. Finally, a commission should ensure that all of its actions conform to relevant provisions of the state statutes and the state administrative code. Again, good legal council will assist with this matter. Page 3 – Appeals, Process and Enforcement Each commission should establish procedures for appeals to its decisions and for enforcing its decisions, including the consequences of not complying with a commission's ruling. Each commission should establish procedures for appeals to its decisions and the enforcement of its decisions. These procedures, and the consequences of not complying with a commission's ruling, should be detailed in the community's historic preservation ordinance as well as the design guidelines. Appeals Typically, appeals will be made to the local governing administrative body, such as the city or town council or to local courts. If the commission has kept good records and has been conscientious about clearly stating how it reached its decision, it will be in a good position for the appeal. Again, decisions should be based on facts and evidence, and be consistent with adopted procedures or guidelines. Enforcement Measures The enforcement of decisions is an unpleasant, but necessary, responsibility of commissions. When a property owner deviates from a Certificate of Appropriateness (COA), he or she is in violation. Work undertaken contrary to an original approval in a COA or beyond the scope of the COA requires further approval from the commission or its staff. If a violation occurs, these measures are often taken: 1. The building inspector issues a stop work order. If the work does not meet the design guidelines, the commission may require that the work be redone. 2. If the property owner does not respond to the stop work order, the building inspector may issue a citation for violating the order. The owner will be given deadlines for responding. 3. If the property owner still does not respond, the building inspector may issue a citation to appear in court. Any work that deviates from the COA without approval is considered a violation. Penalties and fines will be applied, with each day of continuing violation constituting a separate offense. It is of the utmost importance that the commission has a good working relationship with the building inspector's office and communicates well with its staff. The building inspector needs to be fully aware of the commission's policies and its enforcement regulations. It is essential that the building inspector's office and other government agencies take violations to the historic preservation ordinance seriously. Ensuring Success with Enforcement Actions Communication and good relationships are the keys to enforcement of commission decisions. Much of how enforcement plays out will depend on the image and perception that the community and local government have of historic preservation and the commission. If local officials value preservation and the work of the commission, or at least view it in a positive light, the commission will receive more cooperation with enforcement from the agencies involved. If they are unaware of what the commission does or have had little positive connections with the commission, they will be less likely to recognize its importance. Therefore, it is important for the commission to maintain good relationships with other governmental agencies and departments by:  Making sure they are familiar with the community's preservation ordinance, the role of the commission, and its policies and procedures; and  Keeping them informed of the commission's activities (encourage them to attend commission meetings and send them copies of minutes, press releases, and other information). In turn, commission members should also keep abreast of the activities of city hall and attend meetings of the city council at least once a year. The mayor should be asked to appoint a liaison from the city council to the commission. Such a liaison would increase communication between the commission and city council and keep everyone apprised as to concerns and issues. If an issue arises on which the elected officials or other agencies do not agree, the commission should make its recommendation or decision according to the commission's duties as outlined in the ordinance. Elected officials can then act on the recommendation or reject it. Working outside the governmental process or using inflammatory language or threats to elected officials often backfires and is counterproductive. It is also important to extend this proactive approach to the community at large. Advocacy, education, and public relations are often the best enforcement tools and are essential to compliance with the local preservation ordinance. The commission needs to have a good relationship with residents and owners in local districts. The commission should strive to have a good image, to be known throughout the community, and to be positive. A commission can take a proactive approach by doing the following:  Encourage public attendance and participation in commission meetings.  Launch a long-range education and advocacy campaign to enhance the community's understanding and value of historic preservation.  Ask for community input when developing preservation plans and design guidelines.  Welcome newcomers and provide them with information about the district, design guidelines, and the value of owning a historic home. Commissions need to work with local leaders to recognize that violations of commission decisions are similar to other citywide nuisance laws such as health violations, leash laws, and parking laws. Reasonable but significant fines should be applied so owners respond quickly. In some communities, such as New Orleans, the fines for violating a stop work order can be as much as $500 per day. Other communities have much smaller fines, such as $50 per day. Each community should review its enforcement guidelines to see if they have worked and are perceived as reasonable but also with some teeth. Enforcement ultimately comes back to the original decision of the commission, so the commission needs to make thoughtful, impartial decisions that are based on established criteria and procedures. If a commission decision is challenged, the courts will be more accepting of the commission's judgment if it followed established rules and procedures. If compliance with COAs is a repetitive problem, the commission should review its ordinance and guidelines.