§ 70-85. Criteria for issuance.

Pursuant to the Secretary of the Interior's Standards for Rehabilitation, the commission and the city shall use the following criteria in granting or denying certificates of appropriateness:

(1)

General factors. General factors are as follows:

a.

General appearance of the land, building or improvement under consideration;

b.

Structural condition of existing building or structure;

c.

Structural composition of existing building or structure or improvement and proposed alteration;

d.

Architectural design of existing building or structure or improvement and proposed alteration;

e.

Size of existing land parcel, building or structure or improvement and proposed alteration;

f.

Historical significance of existing land, building, structure or improvement;

g.

Economic use of existing land, building, structure or improvement;

h.

Relative cost of the proposed project and alternatives;

i.

The owner's legitimate right to earn a reasonable return from his investment in the site, building or structure; and

j.

The relationship of the above factors to, and their effect upon, the immediate surroundings and, if within a historic district, upon the district as a whole and its architectural and historical character and integrity.

(2)

New construction. New construction (additions to existing resources and infill construction on vacant properties) shall be as follows:

a.

The following aspects of new construction shall be visually compatible with the buildings and environment with which the new construction is visually related, i.e., the height, the gross volume, the proportion between width and height of the facades, the proportions and relationship between door and windows, the rhythm of solids to voids created by openings in the facade, and materials used in the facade, the texture inherent in the facade, pattern and trim used in the facade, and the design of the roof.

b.

Existing rhythm created by existing building masses and spaces between them should be preserved.

c.

The landscaping plan should be sensitive to the individual building and its occupant and needs, and should be visually compatible with the buildings and environment with which it is visually related.

d.

A new street facade should blend directionally with other buildings with which it is visually related, which is to say, when adjacent buildings have a dominant horizontal or vertical expression, that expression should be carried over in the new facade.

e.

New construction must be compatible with the original construction of the historic resources, and should be distinguishable from the original construction and should enhance the architectural characteristic of the historic district.

f.

No single architectural style shall be imposed. Stylistic character consistent and harmonious with the resources in the district shall be encouraged.

g.

The quality and excellence in design should be major determinants.

(3)

Exterior alteration. Exterior alteration shall be as follows:

a.

All exterior alterations to a building or structure should be compatible with the building itself and other buildings with which it is related, as is provided in subsection (2)a of this section, and in applying these standards, the original design of the building or structure must be considered.

b.

Exterior alterations shall not diminish the architectural character or historic quality of the building.

(4)

Signs. Signs shall be as follows:

a.

The scale and design of any sign should be compatible with the building and environment with which it is related.

b.

The materials, style, size, color and patterns used in any sign should be compatible with the buildings and environment with which it is related.

(5)

Demolition. In considering an application for the demolition of a landmark or a resource within a historic district the following shall be considered:

a.

The individual historical or architectural significance of the resource.

b.

The importance or contribution of the resource to the aesthetics of the district.

c.

The difficulty or impossibility of reproducing such a resource because of its texture, design, material or detail.

d.

The proposed replacement structure and the future utilization of the site.

(6)

Reconstruction. The reconstruction of a building destroyed by fire, storm or other act of God shall be regulated in accordance with the criteria set forth in subsection (3) of this section.

(7)

Denial of application. An application for a certificate of appropriateness shall only be denied upon a determination that the proposed changes or project would:

a.

Result in such disharmony of scale, materials, massing, spacing and/or style between the proposed project and its immediate surroundings and the historic district, landmark or landmark site as a whole so as to undermine the architectural integrity and character of the historic district, or landmark site or landmark and inhibit the accomplishment of the purpose of this article;

b.

Result in such a change in the architectural design or character of an existing building or improvement so as to undermine the architectural integrity or character of a historic district as a whole and inhibit the accomplishment of the purposes of this article;

c.

Result in the loss of or irreparable harm to an existing building or improvement of architectural or historical significance; or

d.

Notwithstanding subsections (7)a—(7)c of this section, a certificate of appropriateness should not be denied if that denial would deprive the owner of earning a reasonable rate of economic return from the building or site.

(8)

Demolitions. Demolition of a landmark building or site, or a building or site in a historic district, constitutes an irreplaceable loss to the quality and character of the city. Therefore, all demolitions of such buildings or sites shall require a certificate of appropriateness. Such certificates shall be granted according to the following standards:

a.

Conditions. Certificates of appropriateness for demolition shall be issued by the commission or city only when one or both of the following two conditions have been established pursuant to the standards and criteria required as follows:

1.

The demolition is required to alleviate a threat to public health and safety; and/or

2.

The demolition is required to rectify a condition of unreasonable economic return.

b.

Standards and criteria. The standards and criteria required to be shown in order to establish the existence of the conditions specified in subsection (8)a of this section shall be as follows:

1.

Threats to public health and safety. To prove the existence of a threat to public health and safety, the applicant must establish, and the commission must find, the following:

i.

Demonstrate through independent analyses and supporting information that a major and imminent threat to public safety exists;

ii.

Present all reasonable alternatives for rectifying the threat and analysis of all such alternatives; and

iii.

Demonstrate that the costs associated with rectifying the threat would create a condition whereby the investments in the project are incapable of earning a reasonable economic return as described in subsection (8)b.2 of this section.

2.

Unreasonable economic return. To prove the existence of a condition of unreasonable economic return, the applicant must establish, and the commission must find both of the following:

i.

That the building or site is incapable of earning a reasonable economic return. This finding shall be made by considering, and the applicant shall submit to the commission evidence establishing each of the following factors:

The applicant's knowledge of the landmark or historic district designation at the time of acquisition, or whether the property was designated by the city, state or federal government subsequent to acquisition.

The current level of economic return on the property as considered in relation to the following:

The amount paid for the property, the date of purchase, and party from whom purchased, including a description of the relationship, if any, between the owner of record or applicant and the person from whom the property was purchased.

The annual gross and net income, if any, from the property for the previous three years; itemized operating and maintenance expenses for the previous three years; and depreciation deduction and annual cash flow before and after debt service, if any, during the same period.

Remaining balance on any mortgage or other financing secured by the property and annual debt service, if any, during the prior three years.

Real estate taxes for the previous four years and assessed value of the property according to the two most recent assessed valuations.

All appraisals obtained within the previous two years by the owner or applicant in connection with the purchase, financing or ownership of the property.

The fair market value of the property immediately prior to its designation and the fair market value of the property (in its protected status as a designated building or site) at the time the application is filed.

Form of ownership or operation of the property, whether sole proprietorship, for-profit or not-for-profit corporation, limited partnership, joint venture, or both.

Any state or federal income tax returns and any tax abatements received on or relating to the property for the past two years.

That the property is not marketable or able to be sold, considered in relation to any listing of the property for sale or rent, price asked, and offers received, if any, within the previous two years, including testimony and relevant documents regarding:

Any real estate broker or firm engaged to sell or lease the property.

Reasonableness of the price or rent sought by the applicant.

Any advertisements placed for the sale or rent of the property.

The infeasibility of alternative uses that can earn a reasonable economic return for the property as considered in relation to the following:

A report from a licensed engineer or architect with experience in rehabilitation as to the structural soundness of any structures on the property and their suitability for rehabilitation.

Estimate of the cost of the proposed construction, alteration, demolition, or removal, and an estimate of any additional cost that would be incurred to comply with the recommendation and decision of the commission or city concerning the appropriateness of proposed alterations.

Estimated market value of the property in the current condition; after completion of the proposed construction, alteration, demolition, or removal; and, in the case of a proposed demolition, after renovation of the existing property for continued use.

In the case of a proposed demolition, the testimony of an architect, developer, real estate consultant, appraiser, or other real estate professional experienced in rehabilitation as to the economic feasibility of rehabilitation or reuse of the existing structure on the property.

The infeasibility of new construction around, above or below the existing protected building or site.

Economic incentives and/or funding available to the applicant through federal, state, city or private programs.

ii.

That the applicant has the present intent and the secured financial ability, demonstrated by documentary evidence and by those plans and materials which would otherwise be required in order to secure a building permit, to replace a landmark building or site with a replacement building, as the term "building" is defined in section 70-3, which has a total square footage at least equal to the square footage of the footprint of the building or site proposed to be demolished or moved.

(9)

Stay of demolition. If an application for a certificate of appropriateness is for the demolition of a resource within a historic district or a landmark or landmark site, action upon such application may be stayed for a period of 180 days, during which time the commission and the applicant shall undertake meetings and continuing discussions for the purpose of finding a method to save such property. During such period, the applicant and the commission shall cooperate in attempting to avoid demolition of the property. At the end of the 180-day period, the commission shall meet again to discuss the application and, if no mutually agreeable method of saving the property bearing a reasonable prospect of eventual success is underway, or if no formal application for funds from any governmental unit or nonprofit organization to preserve the property is pending, the commission shall notify the city and the building and housing official, and, upon written notice, the city may, but is not required to, issue a permit for demolition.

(Code 1971, § 15½-16)