Bill Text: IN SB0177 | 2010 | Regular Session | Amended


Bill Title: Indianapolis historic preservation commission.

Spectrum: Bipartisan Bill

Status: (Engrossed - Dead) 2010-02-08 - First reading: referred to Committee on Government and Regulatory Reform [SB0177 Detail]

Download: Indiana-2010-SB0177-Amended.html



Reprinted

February 2, 2010





SENATE BILL No. 177

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DIGEST OF SB 177 (Updated February 1, 2010 4:07 pm - DI 87)



Citations Affected: IC 36-7; noncode.

Synopsis: Indianapolis historic preservation commission. Reduces the term from four to two years of an Indianapolis historic preservation commission member who is appointed to serve a term that begins after December 31, 2010. Allows a property owner to appeal any decision of Indianapolis historic preservation commission (IHPC) on the owner's application for a certificate of appropriateness to the metropolitan development commission (MDC) on the grounds that the decision: (1) has an adverse affect on the owner's property rights; (2) deprives the owner of any reasonable use and benefit of the subject property; (3) imposes a hardship on the applicant, including that the recommendations by the IHPC respecting the proposed construction, reconstruction, alteration or demolition are: (A) infeasible from a mechanical, technical or structural standpoint; or (B) the economics of recommended action would require the property owner to make an unreasonable expenditure. Allows the IHPC to grant a certificate of authorization on the same grounds. Provides that the proceeding before
(Continued next page)

Effective: Upon passage; July 1, 2010; July 1, 2011.





Miller , Young R Michael




    January 5, 2010, read first time and referred to Committee on Local Government.
    January 28, 2010, amended, reported favorably _ Do Pass.
    February 1, 2010, read second time, amended, ordered engrossed.





Digest Continued

the MDC may be de novo. Allows a property owner to file a petition for certiorari appealing the decision of the MDC. Specifies that a property owner or aggrieved party may file a petition for certiorari to a circuit or superior court of the county appealing the decision of the IHPC. Provides that any appeal of a: (1) pending IHPC determination on an application for a certificate of appropriateness; or (2) IHPC determination on an application for a certificate of appropriateness for which a petition for certiorari has not been filed; that is taken after the close of business on June 30, 2011, must be filed with the MDC. Establishes an interim study committee to study all aspects of the IHPC and other historic preservation commissions.


Reprinted

February 2, 2010

Second Regular Session 116th General Assembly (2010)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2009 Regular and Special Sessions of the General Assembly.

SENATE BILL No. 177



    A BILL FOR AN ACT to amend the Indiana Code concerning local government.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 36-7-11.1-3; (10)SB0177.2.1. -->     SECTION 1. IC 36-7-11.1-3, AS AMENDED BY P.L.88-2009, SECTION 11, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 3. (a) The executive and the legislative body of the consolidated city shall appoint a commission of nine (9) members to be known as the "__________ Historic Preservation Commission" (including the name of the city).
    (b) The following apply to the appointment of members:
        (1) The executive shall appoint five (5) members of the commission. The executive:
            (A) may select two (2) members from lists of names submitted by the Historic Landmarks Foundation of Indiana and the historical society of the consolidated city's county;
            (B) may select one (1) member who is a member of the metropolitan development commission; and
            (C) may select one (1) member from a list of names submitted by the local chapter of the American Institute of Architects.
        (2) The legislative body shall appoint four (4) members of the

commission. The legislative body:
            (A) shall select one (1) member who is a resident of a historic area of the consolidated city;
            (B) may select one (1) member from lists of names submitted by the Historic Landmarks Foundation of Indiana and the historical society of the consolidated city's county; and
            (C) may select one (1) member from a list of names submitted by the local chapter of the American Institute of Architects.
    (c) each appointment to the commission is for a term of four (4) years, commencing on January 1 following the appointment, and until a successor is appointed and is qualified. A member is eligible for reappointment. A member appointed to the commission to a term beginning after December 31, 2010, is appointed to serve a term of two (2) years. A member's term commences on January 1, following the appointment and the member serves until a successor is appointed and qualified. A member is eligible for reappointment.
    (d) If a vacancy occurs in the commission during any term, a successor shall be appointed by the appointing authority to serve for the remainder of the vacated term. Any member of the commission may be removed for cause by the appointing authority. All members must be residents of the county.
    (e) The members receive no salary, but are entitled to reimbursement for any expenses necessarily incurred in the performance of their duties.
    (f) At its first scheduled meeting each year, the commission shall hold a meeting for the purpose of organization. The commission shall elect from its membership a president, vice president, secretary, and treasurer who shall perform the duties pertaining to those offices. The officers serve from the date of their election until their successors are elected and qualified. The commission may adopt bylaws and rules for the proper conduct of its proceedings, the carrying out of its duties, and the safeguarding of its funds and property. A majority of the members of the commission constitute a quorum, and the concurrence of a majority of the commission is necessary to authorize any action.
    (g) A member of the commission is not disqualified from hearing and voting upon any matter coming before the commission because that member owns or occupies property within or adjacent to a historic area, unless that property is the subject property or located within two hundred (200) feet of it.
    (h) A member of the commission who is absent from three (3) consecutive regular meetings of the commission shall be treated as if the member had resigned, unless the appointing authority reaffirms the

member's appointment. However, the counting of such a member toward a quorum requirement or the voting by such a member does not invalidate any official action taken by the commission before the time that the minutes of the commission reflect that the member has resigned.

SOURCE: IC 36-7-11.1-9; (10)SB0177.2.2. -->     SECTION 2. IC 36-7-11.1-9 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 9. (a) A person may not construct any exterior architectural structure or feature in any historic area, or reconstruct, alter, or demolish any such exterior or designated interior structure or feature in the area, until the person has filed with the secretary of the commission an application for a certificate of appropriateness in such form and with such plans, specifications, and other material as the commission may from time to time prescribe and a certificate of appropriateness has been issued as provided in this section. However, this chapter does not:
        (1) prevent the ordinary maintenance or repair of any such exterior or designated interior architectural structure or feature that does not involve a change in design, color or outward appearance of it;
        (2) prevent any structural change certified by the department of metropolitan development as immediately required for the public safety because of a hazardous condition; or
        (3) require a certificate of appropriateness for work that is exempted by a historic preservation plan under section 7 of this chapter.
    (b) The commission shall hold a public hearing on any application for certificate of appropriateness. At least ten (10) days before the date set for the hearing, notice shall be published in accordance with IC 5-3-1, and notice shall be given additionally to the affected parties in accordance with the commission's rules of procedure.
    (c) Upon hearing the application for a certificate of appropriateness, the commission shall determine whether the proposal will be appropriate to the preservation of the area and to the furtherance and development of historic preservation.
    (d) In determining appropriateness of any proposed construction, reconstruction, or alteration, the commission shall consider, in addition to any other pertinent factors, the visual compatibility, general design, arrangement, color, texture, and materials in relation to the architectural or other design standards prescribed by the plan or any applicable zoning regulation, the design and character of the historic area, and the architectural factors of other structures in it. In determining appropriateness of any proposed demolition, the

commission shall consider, in addition to any other pertinent factors, the character and significance of the subject structure in relation to the historic area and any other structures or sites in it, including its relative contribution to the historic and architectural values and significance of the area.
    (e) However, if the commission finds under subsection (d) any application to be inappropriate, but: that
         (1) its denial would result in:
            (A) an adverse effect or injury to the property owner's property rights;
            (B) depriving the property owner of any reasonable use and benefit of the subject property; or
            (C) any hardship on the property owner, including that the recommendations of the commission regarding the proposed construction, reconstruction, alteration or demolition:
                (i) are infeasible from a mechanical, technical or structural standpoint; or
                (ii) would require the property owner to make an unreasonable expenditure; or
        (2) the effect upon the historic area would be insubstantial;

substantial hardship or deprive the owner of all reasonable use and benefit of the subject property, or that its effect upon the historic area would be insubstantial, the commission shall issue a certificate of authorization, which constitutes a certificate of appropriateness for purposes of this chapter.
    (f) Issuance of a certificate of appropriateness is subject to review by the metropolitan development commission as to its appropriateness in relation to the comprehensive plan. This review must be in accordance with the same procedures and limitations applicable to appeals of decisions of boards of zoning appeals, as provided in IC 36-7-4, and must be initiated only upon notice of appeal by the division of planning and zoning certifying that this determination interferes with the comprehensive plan. All proceedings and work on the subject premises under the certificate of appropriateness are automatically stayed upon notice of the appeal.

SOURCE: IC 36-7-11.1-10; (10)SB0177.2.3. -->     SECTION 3. IC 36-7-11.1-10 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 10. (a) If the commission determines that the proposed construction, reconstruction, alteration, or demolition will be appropriate, the secretary of the commission shall forthwith issue to the applicant a certificate of appropriateness.
    (b) The commission may impose any reasonable conditions, consistent with the historic preservation plan, upon the issuance of a certificate of appropriateness, including the requirement of executing and recording covenants or filing a maintenance or performance bond. If the commission determines that a certificate of appropriateness should not be issued, the commission shall forthwith place upon its records the reasons for the determination and may include recommendations respecting the proposed construction, reconstruction, alteration, or demolition. The secretary of the commission shall forthwith notify the applicant of the determination transmitting to him the applicant an attested copy of the reasons and recommendations, if any, of the commission.
    (c) Every determination of the commission upon an application for certificate of appropriateness is subject to review by certiorari upon petition to the circuit or superior court of the county by any aggrieved person, in the same manner and subject to the same limitations as a decision of a board of zoning appeals under IC 36-7-4. However, upon notice of the filing of the petition for writ of certiorari, all proceedings and work on the subject premises are automatically stayed.
    (d) An appeal may be taken to the court of appeals of Indiana from the final judgment of the court reversing, affirming, or modifying the determination of the commission in the same manner and upon the same terms, conditions, and limitations as appeals in other civil actions.
SOURCE: IC 36-7-11.1-10.5; (10)SB0177.2.4. -->     SECTION 4. IC 36-7-11.1-10.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 10.5. (a) Except as provided in subsection (b), a property owner may petition the metropolitan development commission to conduct an informal review of any decision of the commission on the property owner's application for a certificate of appropriateness on the grounds that the commission's decision:
        (1) has an adverse affect on the owner's property rights;
        (2) deprives the owner of any reasonable use and benefit of the subject property; or
        (3) imposes a hardship on the applicant, including that the recommendations by the commission regarding the proposed construction, reconstruction, alteration, or demolition under section 10 of this chapter:
            (A) are not feasible from a mechanical, technical, or structural standpoint; or
            (B) would require the property owner to make an unreasonable expenditure.
    (b) If a property owner files a petition for certiorari under section 10.6 of this chapter, the property owner may not subsequently file a petition with the metropolitan development commission under this section.
    (c) The owner shall file a written petition, asserting the matters in subsection (a) not later than thirty (30) days after the date of the commission's decision on the application for a certificate of appropriateness. The metropolitan development commission shall provide notice of the filing of the petition to the commission. The commission shall fix a reasonable time for conducting an informal review of the petition in the manner of a review by a second agency under IC 4-21.5-3-30. The metropolitan development commission shall adopt rules concerning the filing of appeals with the metropolitan development commission, including rules governing the giving of notice and the conduct of hearing. At the hearing before the metropolitan development commission, the property owner may appear in person, by agent, or by attorney.
    (d) The commission shall, on the request of the metropolitan development commission, transmit to the metropolitan development commission all documents, plans, and papers constituting the record of the action before the commission. The proceeding before the metropolitan development commission may be de novo. The metropolitan development commission may make its determination
upon:
        (1) the record of the commission; and
        (2) any evidence, including testimony that the metropolitan development commission determines to be necessary to supplement the evidence.

    (e) A person may not communicate with any member of the metropolitan development commission before the hearing with intent to influence the member's action on a matter pending before the metropolitan development commission. Not less than five (5) days before the hearing, the commission may file with the metropolitan development commission a written statement setting forth any facts or opinions relating to the matter.
     (f) In the hearing on the petition, the metropolitan development commission shall determine whether the facts support any of the grounds in subsection (a). The metropolitan development commission may:
        (1) dismiss the property owner's petition;
        (2) affirm the commission's decision on the certificate of appropriateness; or
        (3) reverse the commission's decision and grant:
            (A) a certificate of appropriateness; or
            (B) a certificate of authorization under section 9 of this chapter.

The metropolitan development commission has all the powers of the commission in making its decision and is subject to sections 9(c), 9(d), 9(e), and 10(b) of this chapter in making its decision.
    (g) If a property owner withdraws a petition filed with the metropolitan development commission under this section, the metropolitan development commission shall provide written notice not later than five (5) days after the withdrawal of the petition.
    (h) Not later than five (5) days after making any decision, the metropolitan development commission shall file in the office of the commission a copy of its decision and send copies of the decision to the owner of the property.

SOURCE: IC 36-7-11.1-10.6; (10)SB0177.2.5. -->     SECTION 5. IC 36-7-11.1-10.6 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2010]: Sec. 10.6. (a) Every decision of:
        (1) the metropolitan development commission on a certificate of appropriateness; and
        (2) the commission on a certificate of appropriateness;
under section 10.5 of this chapter is subject to review by certiorari upon petition to the circuit or superior court of the county. Except as provided in subsection (b), a petition shall be in the same manner and subject to the same limitations as a decision of a board of zoning appeals under IC 36-7-4.
    (b) A petition for certiorari shall be filed with the court as follows:
        (1) This subdivision applies if the property owner does not file a petition under section 10.5 of this chapter. The property owner or any aggrieved party may file a petition for certiorari not more than thirty (30) days after the date of the commission's final decision on the certificate of appropriateness.
        (2) This subdivision applies if a property owner files a petition with the metropolitan development commission under section 10.5 of this chapter. The property owner, or any aggrieved party may file a petition for certiorari not more than thirty (30) days after the date of:
            (A) the final decision of the metropolitan development under section 10.5 of this chapter; or
            (B) the date that the property owner withdraws a petition

for review filed with the metropolitan development commission under section 10.5 of this chapter.
    (c) Upon notice of the filing of the petition for writ of certiorari all proceedings and work on the subject premises are automatically stayed.

     (d) An appeal may be taken to the court of appeals from the final judgment of the court reversing, affirming, or modifying the determination of the commission in the same manner and upon the same terms, conditions, and limitations as appeals in other civil actions.

SOURCE: ; (10)SB0177.2.6. -->     SECTION 6. [EFFECTIVE JULY 1, 2011] (a) As used in this SECTION, "commission" refers to the historic preservation commission appointed under IC 36-7-11.1-3, as amended by this act.
    (b) This SECTION applies to a determination by the commission upon an application for a certificate of appropriateness that:
        (1) is pending before the commission; or
        (2) has been rendered by the commission and for which:
            (A) a petition for certiorari has not been filed; and
            (B) the period for filing a petition for certiorari has not expired.
    (c) After the close of business on June 30, 2011, any appeal of a decision described in subsection (b) must be filed with the metropolitan development commission established by IC 36-7-4-202(c) for a county having a consolidated city.
    (d) This SECTION expires July 2, 2012.

SOURCE: ; (10)SB0177.2.7. -->     SECTION 7. [EFFECTIVE UPON PASSAGE] (a) An interim study committee is established to study all aspects of the Indianapolis historic preservation commission and the historic preservation commissions of other counties, cities, and towns in Indiana.
    (b) The legislative council shall appoint the following twelve (12) members:
        (1) Three (3) members of the senate who reside in Marion County.
        (2) Three (3) members of the house of representatives who reside in Marion County.
        (3) Three (3) members of the senate who reside in a county (other than Marion County), a city, or a town that has established an historic preservation commission.
        (4) Three (3) members of the house of representatives who

reside in a county (other than Marion County), a city, or a town that has established an historic preservation commission.
    (c) The interim study committee shall issue a final report in an electronic format under IC 5-14-6 before November 1, 2010, to the legislative council containing the findings and recommendations of the committee.
    (d) The committee shall operate under the policies governing study committees adopted by the legislative council.
    (e) The affirmative votes of a majority of the voting members appointed to the committee are required for the committee to take action on any measure, including final reports.
    (f) This SECTION expires November 1, 2010.

SOURCE: ; (10)SB0177.2.8. -->     SECTION 8. An emergency is declared for this act.

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