Comments on Ben Kessler - Mayor's Minutes: The Question of Historic Preservation in Bexley

Dave, I greatly respect your well-considered posi...

2011-10-11T08:36:07.909-07:00

Dave,

I greatly respect your well-considered position on these issues. And I agree that in many ways this is “no longer about the demo”.

It seems to me that a lot of what you are saying here hinges on the impropriety of a de novo hearing. Regardless of council’s own precedent, de novo is a legitimate standard of review - one that is properly employed in similar situations in many communities. You say “the de novo review was wrong because it replaced BZA's due process with the arbitrary judgment of the Council” - here, you are juxtaposing the orderly process of the BZA with council’s “arbitrary judgement”. You might profoundly disagree with me on the vote I cast, but I believe that my decision was not “arbitrary”, although granted you were speaking of council in general and not addressing individual votes.

You and I are not attorneys. But common sense tells me the de novo standard would be “wrong” if our city code told us we were to use another standard, such as arbitrary/capricious, and we used de novo instead. As our code simply provides the right to appeal, and does not specify the standard of review, de novo is not, at least technically, the “wrong” standard, just as an arbitrary/capricious standard of review would also not be “wrong”, at least as far as our code is concerned.

In saying all of this, I am not trying to dig in my heels and defend the de novo standard as the right standard into perpetuity. I’m suggesting that it is consistent with Bexley precedent and not unusual in other jurisdictions, but that doesn’t mean that we can’t discuss an alternative standard that might be better for Bexley. This brings me back to one of my original points and goals in placing some of my thoughts on the table here. I hope that, regardless of the outcome of the Franklin County decision, we provide the demolition ordinance itself with greater clarify, and in doing so provide greater specificity as to the standard of review. If we can do that, I believe and hope that our common concern here will be satisfied, and that future issues will leave less room for controversy and will be provided with greater clarity of process.

Ben

@ "kc3168" - First off - sorry for the ...

2011-10-10T07:05:31.420-07:00

@ "kc3168" -

First off - sorry for the delay in replying - busy weekend with my family. And thank you for your question - it's a fair question.

I am acutely aware of the frustration (and I know that “frustration” is an understatement) with the council vote by those opposed to the demolition of the Bryden Road home. I can only affirm again my respect for the BZA membership, and my belief in their judgement. I think the controversy over the demolition ordinance has highlighted that, at the very least, there is confusion as to how we best interpret and apply that ordinance. And note that when I say "confusion" I mean this in a value-neutral sense; I'm simply stating my belief that the ordinance itself lends itself to confusion by virtue of its at times vague and open-ended language.

I don't think that the same confusion exists with respect to the vast majority of our laws and standard, and more specifically I don't think there is the same confusion over the BZA/ARB role in approving new builds. I look forward to proving in the future that this council member is not interested in micromanaging decisions made by the boards and commissions of Bexley.

Thanks,

Ben

It’s no longer about the demo Thank you for your ...

2011-10-08T11:09:47.161-07:00

It’s no longer about the demo

Thank you for your recent post regarding the conflict around the proposed demolition 2463 Bryden Road. I take your comments as a reminder that we Bexley residents must be as careful of our neighborhood’s social fabric as physical fabric. I agree with you.

As a citizen of Bexley, I am most concerned by Council’s process in addressing the appeal, rather than the specific outcome. I believe Council acted beyond the proper limits of due process. I also feel, in specific instances, it acted with arrogance and demonstrated disrespect to residents who were acting in good faith while participating in the process.

BZA has the responsibility for applying the existing ordinances and standards of Bexley following appropriate process to the limited questions placed before it. BZA members are appointed due to their expertise, experience and judgment. The limits within which they appropriately operate are quite narrow.

An appeal of a BZA decision is not be about if you disagree with the decision, but rather if the process of their decision-making was flawed. That is, did they misunderstand the applicable ordinances, misapply the standards, or otherwise act in an arbitrary manner. Similar to the narrowness of BZA’s limits, Council is also constrained in its freedom to act.

Ben, in your response to Janet's post, you seem to imply that BZA's interpretation of the current Bexley ordinance was inappropriate. Unfortunately, this is not the statement made in Council's findings.

The de novo review was wrong because it replaced BZA's due process with the arbitrary judgment of the Council.

That Council has apparently always treated appeal hearings as de novo in no way makes it appropriate. If the currently pending appeal before the Franklin County Court of Common Pleas does any good, I hope it will provide clear guidance to Council regarding the limits of its discretion.

Janet, Thank you for your question. I'm not ...

2011-10-08T07:59:34.688-07:00

Janet,

Thank you for your question. I'm not going to speculate regarding your house, but I believe that my house, for example, doesn't meet the standard of "encouraging the retention of buildings which have [significant] historic, [significant] architectural or cultural value or which are otherwise worthy of preservation". Our ordinance uses the word "significant" when describing that which is worthy of preservation - it's an exceptionalist standard, and my house is not exceptional. If we want to preserve what is typical of Bexley - if we want to preserve neighborhood fabric and context, or "contributing" structures, then I believe that our ordinance needs to incorporate stronger conventional historic preservation standards that expand our exceptionalist standard and cast a wider net.

It's my understanding that conventional historic preservation ordinances are more robust and well-defined than our demolition ordinance, and they do typically consider whether a building is "contributing" vs "non-contributing" (this is one of the standards David Brownstein referred to in his testimony before council). Columbus, for example, has much more specific and standard historic preservation language in their ordinance - chapter 3116 of their code. Their demolition language is much stronger and more specifically addresses the concept of "contributing" vs "non-contributing" uses. Here's a link to their code -
http://development.columbus.gov/uploadedFiles/Development/Planning_Division/Documents_Library/HISTORIC%20PRESERVATION%20AND%20ARCHITECTURAL%20REVIEW%203116.pdf

This "preservation ordinance FAQ" from the National Trust for Historic Preservation talks at length about what sorts of standards local historical preservation ordinance typically contain:
http://www.preservationnation.org/resources/legal-resources/understanding-preservation-law/local-law/ordinances.html

I believe that our ordinance falls short in many ways from the ideal for a historic preservation ordinance as defined by the National Trust and as enacted by other communities who have historic preservation standards. I think this makes sense if you consider why we have the ordinance that we have today. The creation of our demolition ordinance was primarily motivated by a desire to avoid properties being torn down and not replaced, in response to a trend of lot expansion that was changing the scale of neighborhoods. I think that it has achieved its objective. If we want to preserve "contributing" uses, or preserve neighborhood fabric and context, or give priority to patina, then I believe that we need language in our ordinance that clearly creates those standards, and that provides strong legal support to the boards and commissions of Bexley that are tasked with upholding those standards.

I know that this doesn't really say much different from what I said in my post, but I hope it more clearly described my own thought process. Again - this is just my perspective. I appreciate your question, and its implicit frustration with our city's ordinance (or at least my interpretation of the ordinance).

Ben

While I do not agree with your analysis I apprecia...

2011-10-08T07:55:52.406-07:00

While I do not agree with your analysis I appreciate you taking the time to comment. One of the many things that trouble me is that the plan for the new home was never approved by the BZA. If the council so carelessly cast aside the views of the BZA with regard to demolition what stops the council from doing the same with a new build?

Ben, Based on council's interpretation of the...

2011-10-07T18:18:51.468-07:00

Ben,
Based on council's interpretation of the ordinance, my home does not meet your criteria of being "preserved". Can you please tell me, who or what is to stop me from demolishing my home now, and putting up a new house?
Janet

Linda, Good questions. The owners were present. T...

2011-10-07T07:59:45.825-07:00

Linda,

Good questions. The owners were present. They hung back while I toured the property with their attorney.

I did not request to go through it with the BZA members, but I did talk to many of them after going through the house - both those that voted for and against.

My perspective might be a little different because I'm an appraiser. I spend a lot of time going through property and listening to people who are certainly biased in their assessment of their own property, so my automatic instinct is to take everything with a giant grain of salt and assess based on my own experience.

Ben - I have a question. From what I have heard, ...

2011-10-07T07:53:50.491-07:00

Ben - I have a question. From what I have heard, and I could be wrong, it seemed the City Council members walked through the house with the OWNERS of the house and without anyone else there to refute or challenge their unguided, one-sided tour of the home. Is this true? And if so, did you all request to go through it with the zoning board members who voted against the tear down.

-- Linda

Thanks Kevin - appreciated

2011-10-05T22:28:23.410-07:00

Thanks Kevin - appreciated

As always, I appreciate you sharing your opinion i...

2011-10-04T06:21:31.151-07:00

As always, I appreciate you sharing your opinion in a public manner that can be read by constituents, if they seek it out.