The Question of Historic Preservation in Bexley

Undoubtedly you have seen the yard signs popping up around the city over the past couple of months - "Say No To Demo".  The signs are advocating for the denial of a demolition permit at a home at 2325 Bryden Road.  The permit was denied by the Bexley BZA/ARB, successfully appealed to City Council, and now the Council decision has been appealed to Franklin County by a group of residents who have united to advocate against the demolition of the Bryden Road House.  The same residents are, I believe, behind a Facebook page which has recently been created in protest of the possible demolition.

I'd like to provide as much insight as I can into the issue, the concerns being raised about the process, and where to go from here.  I need to stress that this is one council member's opinion.  My views don't necessarily reflect those of other council members or the administration, etc, etc. - you get the idea.

First off, I think it's great that there are residents taking interest in Bexley's laws governing preservation.  The laws are important - they dictate how the community will be shaped over the decades and centuries to come.  We need to get this stuff right - we can't afford to allow our unique community to lose all of the inherent assets that make it special, just as we can't afford to allow the community to simply stay the same and never change.

However, I think the Facebook page puts out some misleading information, especially about the city's process and the motivation of city leadership. And I don't blame them.  Quite frankly, in my opinion, the city has done a poor job of explaining the thought process of council, the administration, and the city attorney in the way they handled the hearing in the first place.  I include myself in this blanket statement.  As a council member who is usually quick (maybe too quick?) to communicate my thoughts on an issue, I have been fairly silent on this one to date.  This issue has presented a unique communication challenge; initially council members were issued a gag order from the city attorney regarding discussing the matter, and since then I've been unsure as to how best communicate, particularly given the rather litigious rhetoric coming from parties on both sides of this issue.  I'm still not sure that my sharing my thoughts isn't just going to create more conflict, but I think as an elected representative it's important that I make my position as clear on this as possible.  So here goes...

Respecting the BZA
One allegation I've heard from opponents of the council decision is that we acted in a way that disregarded and/or disrespected the BZA decision.

I very much respect all of the members of the BZA.  They are incredibly competent, talented, and judicious professionals and members of our community.  I have the utmost respect for them as individuals, professionals, and community leaders.  While I did not agree with some of them on this issue, I certainly respect them on this issue, and I feel that I understand and value their perspective.  There will be disagreements on issues in any community among leadership, and to suggest that disagreement is equivalent to disrespect censors productive conversation and substantive disagreement.  Indeed, it would be disingenuous to offer an appeals process if there is never any intent to have city council critically assess an issue.  I agree with the vast majority of BZA decisions - and they make many each time they convene as a board.  I happen to disagree with this one, but that does not mean that I disrespect, disregard, or otherwise find them in any way lacking.  To the contrary, I am supremely thankful for the expertise and insight that they bring to our city process.

Why a de novo hearing?
There has been a lot of talk about the de novo nature of the hearing - suggestions that this was an inappropriate standard of review for us to engage in.  I'm not an attorney, but I can speak to my experience of appeal hearings before council, and what I've learned from talking to other council members and to attorneys.  In my experience, appeals that have been heard by City Council have all been de novo, although we've never called it that.  I asked other council members if they've ever heard an appeal based on an arbitrary/capricious standard of review, and none could recall having done that.  So, to the best of my knowledge, de novo has historically been the standard of review for appeals to council.  Nonetheless, council members were provided with a package of the BZA minutes and the appelant's supporting documentation.  I read through them thoroughly, spoke with many of the BZA members in advance, at length, regarding their perspective, and walked through the house.  So while we did not hear this based solely on whether or not the BZA had acted arbitrarily and/or capriciously, we also did not come into this process ignorant of the history and background of what had preceded our hearing.  From my perspective, with all that went into this decision on my part, this was not a quick and summary decision that diminished or made light of the process that proceeded it.

2325 Bryden Road

Why did you adjourn into closed deliberations?
As an appellate body, city council was functioning in a quasi-judicial fashion.  Our city attorney instructed us that adjournment for deliberation was advisable in this context.  As a council member, I rely on the legal advice and instruction of our city attorney.  Any questions regarding this element of the process need to be directed to our city attorney.  I don't mean to be short with this answer, or evasive - it's just that I'm not an attorney, and I have no basis from which to argue for or against the need for us to proceed the way we did.

Why did you hold this hearing in council chambers, without enough space?
We've had many experiences with contentious issues in my time on council, but none of them have overflowed into the hallway the way this one did. It's my understanding that the BZA hearings, which were also contentious and actively participated in, also did not overflow into the halls. In the days leading up to the hearing, based on the sheer volume of emails and calls we all received from residents on both sides of this issue, it became more apparent that this issue had grown since the BZA hearings and was capturing the attention of residents beyond the initial hearings. We are bound to provide public notice in advance of hearings along with location information (I think the law is 7 days advance notice as to time and location). Public notice had already been provided that this would be heard at council chambers, so switching to an alternate site was not an option.  Even with all of the energy around the issue, I was personally very surprised at the turnout.  We've had other big issues with similar volumes of correspondence, but without the same turnout.  I think the level of participation by proponents and opponents speaks to how truly passionate and engaged residents are on this issue.  We  have many things to learn from this experience, and one of them is that we need a better solution for instances that result in larger turnout than expected.  I can't speak on behalf of the entire city government, but I am personally sorry that our council chambers provided a difficult and uncomfortable environment for the hearing.  For our reading of the actual council decision several weeks after the hearing, we had council chambers cleared of the conference table, additional seating brought in, and a speaker added to the hallway in the event of high turnout.  It turned out to be much more than was needed, but I think this experience teaches us that having this sort of accommodation as an option is something that we need to do.

The Big Picture: Why Did You Overturn the BZA?
I think the main challenge surrounding this issue is that Bexley doesn't really have a comprehensive preservation law (our zoning code can be downloaded here - the relevant section is Chapter 1223). What we do have is an ordinance that was mostly written to prohibit people from tearing down a house just to expand their lot; this was in response to a wave of this sort of activity throughout the 1990's and early 2000's. However, while it addresses certain aspects of demolition, it does not holistically address preservation. True preservation laws are much more encompassing and specific.  The lack of greater specificity in our code is, I believe, one of the reasons this issue has become so contentious.

The concept of neighborhood fabric and neighborhood context has been broached frequently by opponents of the Bryden Road demolition. However, neighborhood fabric and/or context are not benchmarks referred to in our city ordinance. I think more than a dozen demolition permits have been issued since the demolition law was enacted in 2003, and arguably all of those houses also contributed to “neighborhood fabric”. I am not saying that neighborhood fabric isn’t important and good and worthy of preservation – but I am suggesting that our law was not written, nor was it intended, to prohibit demolition on the basis of neighborhood fabric or context.  It was not written that way, based on the recollection of those who wrote the law it was not intended that way, and it has not functioned that way in the past.  This would be the first time our law was interpreted that way, and it would be inconsistent with past decisions.

Even beyond this question, our law provides substantial accommodation for applicants who wish to demolish their home on the basis of "financial hardship".  The property owner had expert witnesses testify to the nature and extent of their financial hardship.  While the expert witnesses' numbers are certainly able to be critiqued, there was no alternative evidence to suggest they were wrong.  Again - if you believe this standard is unfair, then the law needs to be addressed - not this one application.  I was attempting to honestly and openly view this application based upon my best effort at an unbiased interpretation of our law.

All this to say - if we don’t want property owners to have the power they currently do to demolish their homes (within the limits of the ordinance), then we should revisit the law and modify it appropriately. We should explore further the concept of neighborhood fabric, or neighborhood context, or patina, or whatever standard(s) we want to address, and make sure that we have definitions that can be easily understood and universally applied.

Moving Forward
There are many people in Bexley on both sides of this issue that are up in arms.  It’s discouraging to see.   A positive and productive conversation is due regarding how we handle historical preservation issues in the City of Bexley.

Earlier this year, prior to this issue even coming up for consideration by the BZA, I brought up the idea to the Bexley Historical Society of creating a Bexley registry of historic homes.   I was more focused on civic pride aspects of a registry like this, but a registry could also help to establish a community metric for homes that are "worthy of preservation".  The fabric and context of our neighborhoods should be protected and preserved.  I am 100% in favor of continuing a discussion about our demolition law and how it can be reformed into a more meaningful historic preservation law.

And I believe that we can have this conversation in a productive and positive way, that edifies the community and brings us closer together instead of dividing us.  In a recent letter to the editor, I wrote the following:

“It is deeply regretful that the recent hearing regarding the Bryden Road demolition has caused a rift among city leadership. Regretful because all of the members of all of our boards and of city council have one very unifying motivation in common: we are all, at our very core, 100 percent committed to the prosperity of Bexley.
While we do not always agree on the best way to protect, preserve, and enhance the city of Bexley, we are all driven to do just that. I've been thinking a lot about how we can prevent an issue like this from dividing city leadership in the future. The answer is certainly not to seek greater homogeneity among council and board members. And it's naive to think that there won't be divergence in the future as we continue to work for the good of the city. But that doesn't mean that we shouldn't take a close look at the language and intent of our city code in order to ensure that the law is perfectly clear on controversial issues such as this one.
I think we owe it to everyone to make sure that we learn from what happened, and honestly work toward the betterment of the system and, by extension, the betterment of the city and its residents.”

This is true.  Let's move forward together, and as a unified community lets work on finding a better balance and common ground from which to approach historic preservation issues.

Postscript: This is a big issue.  I will respond in the comments section if you want greater clarification on any of these items, or on something I haven't addressed.  I only ask that comments be kept respectful, and that we all approach each others perspectives civilly, and with an open mind.  Thank you!