Bill Text: MI HB4265 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: History and arts; other; local historic district restrictions and enforcement; modify. Amends secs. 1a, 5, 9, 10, 11, 14 & 15 of 1970 PA 169 (MCL 399.201a et seq.) & adds secs. 14a & 14b.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Introduced - Dead) 2009-02-18 - Printed Bill Filed 02/18/2009 [HB4265 Detail]

Download: Michigan-2009-HB4265-Introduced.html

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HOUSE BILL No. 4265

 

February 17, 2009, Introduced by Reps. Robert Jones, Simpson, Smith, Young, Miller, Scripps, Durhal, Tlaib, Constan and Johnson and referred to the Committee on Intergovernmental and Regional Affairs.

 

     A bill to amend 1970 PA 169, entitled

 

"Local historic districts act,"

 

by amending sections 1a, 5, 9, 10, 11, 14, and 15 (MCL 399.201a,

 

399.205, 399.209, 399.210, 399.211, 399.214, and 399.215), sections

 

1a and 5 as amended by 2004 PA 67, section 9 as amended by 2001 PA

 

67, and sections 10 and 11 as amended and sections 14 and 15 as

 

added by 1992 PA 96, and by adding sections 14a and 14b.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 1a. As used in this act:

 

     (a) "Alteration" means work that changes the detail of a

 

resource but does not change its basic size or shape.

 

     (b) "Certificate of appropriateness" means the written

 

approval of a permit an application for work that is appropriate

 

and that does not adversely affect a resource.

 

     (c) "Commission" means a historic district commission created

 

by the legislative body of a local unit under section 4.

 

     (d) "Committee" means a historic district study committee

 

appointed by the legislative body of a local unit under section 3

 

or 14.

 

     (e) "Demolition" means the razing or destruction, whether

 

entirely or in part, of a resource and includes, but is not limited

 

to, demolition by neglect.

 

     (f) "Demolition by neglect" means neglect in maintaining,

 

repairing, or securing a resource that results in deterioration of

 

an exterior feature of the resource or the loss of structural

 

integrity of the resource.

 

     (g) "Denial" means the written rejection of a permit an

 

application for work that is inappropriate and that adversely

 

affects a resource.

 

     (h) "Department" means the department of history, arts, and

 

libraries.

 

     (i) "Duly organized historic preservation organization" means

 

an organization that is 1 of the following:

 

     (i) Incorporated under the nonprofit corporation act, 1982 PA

 

162, MCL 450.2101 to 450.3192, for the purpose of preserving, or

 

promoting the preservation of, 1 or more historic resources and is

 

exempt from taxation under section 501(c)(3) of the internal

 

revenue code, 26 USC 501(c)(3).

 

     (ii) Established by congressional charter under 16 USC 469 for

 

historic preservation purposes.

 

     (j) (i) "Fire alarm system" means a system designed to detect

 

and annunciate the presence of fire or by-products of fire. Fire

 

alarm system includes smoke alarms.

 

     (k) (j) "Historic district" means an area, or group of areas

 

not necessarily having contiguous boundaries, that contains 1

 

resource or a group of resources that are related by history,

 

architecture, archaeology, engineering, or culture.

 

     (l) (k) "Historic preservation" means the identification,

 

evaluation, establishment, and protection of resources significant

 

in history, architecture, archaeology, engineering, or culture.

 

     (m) (l) "Historic resource" means a publicly or privately owned

 

building, structure, site, object, feature, or open space that is

 

significant in the history, architecture, archaeology, engineering,

 

or culture of this state or a community within this state, or of

 

the United States.

 

     (n) (m) "Local unit" means a county, city, village, or

 

township.

 

     (o) (n) "Notice to proceed" means the written permission to

 

issue a permit for work that is inappropriate and that adversely

 

affects a resource, pursuant to a finding under section 5(6).

 

     (p) (o) "Open space" means undeveloped land, a naturally

 

landscaped area, or a formal or man-made landscaped area that

 

provides a connective link or a buffer between other resources.

 

     (q) (p) "Ordinary maintenance" means keeping a resource

 

unimpaired and in good condition through ongoing minor

 

intervention, undertaken from time to time, in its exterior

 

condition. Ordinary maintenance does not change the external

 

appearance of the resource except through the elimination of the

 

usual and expected effects of weathering. Ordinary maintenance does

 

not constitute work for purposes of this act.

 

     (r) (q) "Proposed historic district" means an area, or group

 

of areas not necessarily having contiguous boundaries, that has

 

delineated boundaries and that is under review by a committee or a

 

standing committee for the purpose of making a recommendation as to

 

whether it should be established as a historic district or added to

 

an established historic district.

 

     (s) (r) "Repair" means to restore a decayed or damaged

 

resource to a good or sound condition by any process. A repair that

 

changes the external appearance of a resource constitutes work for

 

purposes of this act.

 

     (t) (s) "Resource" means 1 or more publicly or privately owned

 

historic or nonhistoric buildings, structures, sites, objects,

 

features, or open spaces located within a historic district.

 

     (u) "Review board" means the state historic preservation

 

review board created by Executive Order No. 2007-53 and housed in

 

the department.

 

     (v) (t) "Smoke alarm" means a single-station or multiple-

 

station alarm responsive to smoke and not connected to a system. As

 

used in this subdivision, "single-station alarm" means an assembly

 

incorporating a detector, the control equipment, and the alarm

 

sounding device into a single unit, operated from a power supply

 

either in the unit or obtained at the point of installation.

 

"Multiple-station alarm" means 2 or more single-station alarms that

 

are capable of interconnection such that actuation of 1 alarm

 

causes all integrated separate audible alarms to operate.

 

     (w) (u) "Standing committee" means a permanent body

 

established by the legislative body of a local unit under section

 

14 to conduct the activities of a historic district study committee

 

on a continuing basis.

 

     (x) (v) "Work" means construction, addition, alteration,

 

repair, moving, excavation, or demolition.

 

     Sec. 5. (1) A permit Approval of a commission shall be

 

obtained before any work affecting the exterior appearance of a

 

resource is performed within a historic district or, if required

 

under subsection (4), work affecting the interior arrangements of a

 

resource is performed within a historic district. The person,

 

individual, partnership, firm, corporation, organization,

 

institution, or governmental agency of government proposing to do

 

that work shall file an application for a permit with the inspector

 

of buildings, the commission, or other duly delegated authority. If

 

the inspector of buildings or other authority receives the

 

application, the application shall be immediately referred together

 

with all required supporting materials that make the application

 

complete to the commission. A permit shall not be issued and

 

proposed Proposed work shall not proceed until the commission has

 

acted on the application by issuing a certificate of

 

appropriateness or a notice to proceed as prescribed in this act. A

 

commission shall not issue a certificate of appropriateness unless

 

the applicant certifies in the application that the property where

 

work will be undertaken has, or will have before the proposed

 

project completion date, a fire alarm system or a smoke alarm

 

complying with the requirements of the Stille-DeRossett-Hale single

 

state construction code act, 1972 PA 230, MCL 125.1501 to 125.1531.

 

A local unit may charge a reasonable fee to process a permit an

 

application.

 

     (2) An applicant aggrieved by a decision of a commission

 

concerning a permit an application may file an appeal with the

 

state historic preservation review board within the department. The

 

appeal shall be filed within 60 days after the decision is

 

furnished to the applicant. The appellant may submit all or part of

 

the appellant's evidence and arguments in written form. The review

 

board shall consider an appeal at its first regularly scheduled

 

meeting as soon as is practicable after receiving the appeal, but

 

may not charge a fee for considering an appeal. The review board

 

may affirm, modify, or set aside a commission's decision and may

 

order a commission to issue a certificate of appropriateness or a

 

notice to proceed. A permit An applicant aggrieved by the decision

 

of the state historic preservation review board may appeal the

 

decision to the circuit court having jurisdiction over the historic

 

district commission whose decision was appealed to the state

 

historic preservation review board.

 

     (3) In reviewing plans, the commission shall follow the United

 

States secretary of the interior's standards for rehabilitation and

 

guidelines for rehabilitating historic buildings, as set forth in

 

36 C.F.R. CFR part 67. Design review standards and guidelines that

 

address special design characteristics of historic districts

 

administered by the commission may be followed if they are

 

equivalent in guidance to the secretary of the interior's standards

 

and guidelines and are established or approved by the department.

 

The commission shall also consider all of the following:

 

     (a) The historic or architectural value and significance of

 

the resource and its relationship to the historic value of the

 

surrounding area.

 

     (b) The relationship of any architectural features of the

 

resource to the rest of the resource and to the surrounding area.

 

     (c) The general compatibility of the design, arrangement,

 

texture, and materials proposed to be used.

 

     (d) Other factors, such as aesthetic value, that the

 

commission finds relevant.

 

     (e) Whether the applicant has certified in the application

 

that the property where work will be undertaken has, or will have

 

before the proposed project completion date, a fire alarm system or

 

a smoke alarm complying with the requirements of the Stille-

 

DeRossett-Hale single state construction code act, 1972 PA 230, MCL

 

125.1501 to 125.1531.

 

     (4) The commission shall review and act upon only exterior

 

features of a resource and, except for noting compliance with the

 

requirement to install a fire alarm system or a smoke alarm, shall

 

not review and act upon interior arrangements unless specifically

 

authorized to do so by the local legislative body or unless

 

interior work will cause visible change to the exterior of the

 

resource. The commission shall not disapprove an application due to

 

considerations not prescribed in subsection (3).

 

     (5) If an application is for work that will adversely affect

 

the exterior of a resource the commission considers valuable to the

 

local unit, state, or nation , and the commission determines that

 

the alteration or loss of that resource will adversely affect the

 

public purpose of the local unit, state, or nation, the commission

 

shall attempt to establish with the owner of the resource an

 

economically feasible plan for preservation of the resource.

 

     (6) Work The commission shall issue a notice to proceed to

 

permit work within a historic district shall be permitted through

 

the issuance of a notice to proceed by the commission if any of the

 

following conditions prevail and if the proposed work can be

 

demonstrated by a finding of the commission to be finds the work

 

necessary to substantially improve or correct any of the following

 

conditions:

 

     (a) The resource constitutes a hazard to the safety of the

 

public or to the structure's occupants.

 

     (b) The resource is a deterrent to a major improvement program

 

that will be of substantial benefit to the community and the

 

applicant proposing the work has obtained all necessary planning

 

and zoning approvals, financing, and environmental clearances.

 

     (c) Retaining the resource will cause undue financial hardship

 

to the owner when a governmental action, an act of God, or other

 

events beyond the owner's control created the hardship, and all

 

feasible alternatives to eliminate the financial hardship, which

 

may include offering the resource for sale at its fair market value

 

or moving the resource to a vacant site within the historic

 

district, have been attempted and exhausted by the owner.

 

     (d) Retaining the resource is not in the interest of the

 

majority of the community.

 

     (7) The business that the commission may perform shall be

 

conducted at a public meeting of the commission held in compliance

 

with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.

 

Public notice of the time, date, and place of the meeting shall be

 

given in the manner required by the open meetings act, 1976 PA 267,

 

MCL 15.261 to 15.275. A meeting agenda shall be part of the notice

 

and shall include a listing of each permit application to be

 

reviewed or considered by the commission.

 

     (8) The commission shall keep a record of its resolutions,

 

proceedings, and actions. A writing prepared, owned, used, in the

 

possession of, or retained by the commission in the performance of

 

an official function shall be made available to the public in

 

compliance with the freedom of information act, 1976 PA 442, MCL

 

15.231 to 15.246.

 

     (9) The commission shall adopt its own rules of procedure and

 

shall adopt design review standards and guidelines for resource

 

treatment to carry out its duties under this act.

 

     (10) The commission may delegate the issuance of certificates

 

of appropriateness for specified minor classes of work to its

 

staff, to the inspector of buildings, or to another delegated

 

authority. The commission shall provide to the delegated authority

 

specific written standards for issuing certificates of

 

appropriateness under this subsection. On at At least a quarterly,

 

basis, the commission shall review the any certificates of

 

appropriateness , if any, issued for work by its staff, the

 

inspector, or another under delegated authority to determine

 

whether or not the delegated responsibilities should be continued.

 

     (11) Upon a finding by a commission that a historic resource

 

within a historic district or a proposed historic district subject

 

to its review and approval is threatened with demolition by

 

neglect, the commission may do either of the following:

 

     (a) Require the owner of the resource to repair all conditions

 

contributing to demolition by neglect.

 

     (b) If the owner does not make repairs within a reasonable

 

time, the commission or its agents may enter the property and make

 

such any repairs as are necessary to prevent demolition by neglect.

 

The costs of the work shall be charged to the owner, and may be

 

levied by the local unit as a special assessment against the

 

property. The commission or its agents may enter the property for

 

purposes of this section upon obtaining an order from the circuit

 

court.

 

     (12) When work has been done upon a resource without a permit,

 

certificate of appropriateness or a notice to proceed and the

 

commission finds that the work does not qualify for a certificate

 

of appropriateness, the commission may require an owner to restore

 

the resource to the condition the resource was in before the

 

inappropriate work or to modify the work so that it qualifies for a

 

certificate of appropriateness. If the owner does not comply with

 

the restoration or modification requirement within a reasonable

 

time, the commission may seek an order from the circuit court to

 

require the owner to restore the resource to its former condition

 

or to modify the work so that it qualifies for a certificate of

 

appropriateness. If the owner does not comply or cannot comply with

 

the order of the court, the commission or its agents may enter the

 

property and conduct work necessary to restore the resource to its

 

former condition or modify the work so that it qualifies for a

 

certificate of appropriateness in accordance with the court's

 

order. The costs of the work shall be charged to the owner , and

 

may be levied by the local unit as a special assessment against the

 

property. When acting pursuant to an order of the circuit court, a

 

commission or its agents may enter a property for purposes of this

 

section.

 

     Sec. 9. (1) The commission shall file certificates of

 

appropriateness, notices to proceed, and denials of applications

 

for permits with the inspector of buildings or other delegated

 

authority. A building permit shall not be issued until the

 

commission has acted as prescribed by this act. Tabling is not

 

considered a commission action for purposes of this subsection. If

 

an application is tabled, the commission shall furnish the

 

applicant with a written explanation of the reasons for tabling the

 

application. If a permit an application is denied, the decision

 

shall be binding on the inspector or other authority. A denial

 

shall be accompanied with a written explanation by the commission

 

of the reasons for denial and, if appropriate, a notice that an

 

application may be resubmitted for commission review when suggested

 

changes have been made. The denial shall also include notification

 

of the applicant's rights of appeal to the state historic

 

preservation review board and to the circuit court. The failure of

 

the commission to act within 60 calendar days after the date a

 

complete application is filed with the commission, unless an

 

extension is agreed upon in writing by the applicant and the

 

commission, shall be considered to constitute approval. An

 

application is complete when the commission has received all the

 

information required in the application form, prescribed by the

 

applicable local ordinance, and otherwise required by the

 

commission to ensure compliance with this act or a local ordinance.

 

     (2) Local public officials and employees shall provide

 

information and records to committees, commissions, and standing

 

committees , and shall meet with those bodies upon request to

 

assist with their activities.

 

     (3) The department shall cooperate with and assist local

 

units, committees, commissions, and standing committees in carrying

 

out the purposes of this act and may establish or approve

 

standards, guidelines, and procedures that encourage uniform

 

administration of this act in this state but that are not legally

 

binding on any individual or other legal entity.

 

     Sec. 10. Nothing in this act shall be construed to prevent

 

ordinary maintenance or repair of a resource within a historic

 

district , or to prevent work on any resource under a permit issued

 

by the inspector of buildings or other duly delegated authority

 

before the historic district ordinance was enacted.

 

     Sec. 11. (1) Any citizen or resident of the local unit, a duly

 

organized historic preservation organization, in the local unit, as

 

well as resource property owners, jointly or severally the

 

department, or a resource property owner that is aggrieved by a

 

decision of the historic district a commission may appeal the

 

decision to the circuit court, except that a permit an applicant

 

aggrieved by a decision rendered under section 5(1) may not appeal

 

to the court without first exhausting the right to appeal to the

 

state historic preservation review board under section 5(2).

 

     (2) If an aggrieved applicant appeals a decision to the review

 

board under section 5(2) and any other person appeals a decision

 

concerning the matter to the circuit court under subsection (1),

 

the circuit court shall stay its proceedings until the review board

 

issues a final decision and order in the administrative appeal.

 

     Sec. 14. (1) A local unit may at any time establish by

 

ordinance additional historic districts, including proposed

 

districts previously considered and rejected; , may modify

 

boundaries of an existing historic district; , or may eliminate an

 

existing historic district. Before establishing, modifying, or

 

eliminating a historic district, a historic district study

 

committee appointed by the legislative body of the local unit

 

shall, except as provided in subsection (2), comply with the

 

procedures set forth in section 3 and shall consider any previously

 

written committee reports pertinent to the proposed action. To

 

conduct these activities, local units may retain the initial

 

committee, establish a standing committee, or establish a committee

 

to consider only specific proposed districts and then be dissolved.

 

     (2) If considering elimination of a historic district, a

 

committee shall follow the procedures set forth in section 3 for

 

issuing a preliminary report, holding a public hearing, and issuing

 

a final report but with the intent of showing 1 or more of the

 

following:

 

     (i) The historic district has lost those physical

 

characteristics that enabled establishment of the district.

 

     (ii) The historic district was not significant in the way

 

previously defined.

 

     (iii) The historic district was established pursuant to by

 

defective procedures.

 

     (3) Upon receipt of substantial evidence showing the presence

 

of historic, architectural, archaeological, engineering, or

 

cultural significance of a proposed historic district, the

 

legislative body of a local unit may, at its discretion, adopt a

 

resolution requiring that all applications for building permits

 

that would affect the exterior appearance of an existing structure

 

within the proposed historic district be referred to the commission

 

as prescribed in sections 5 and 9. The commission shall review

 

permit those applications with the same powers that would apply if

 

the proposed historic district was an established historic

 

district. The review may continue in the proposed historic district

 

for not more than 1 year, or until such time as the local unit

 

approves or rejects the establishment of the historic district by

 

ordinance, whichever occurs first.

 

     (4) If the legislative body of a local unit determines that

 

pending work will cause irreparable harm to resources located

 

within an established historic district or a proposed historic

 

district, the legislative body may by resolution declare an

 

emergency moratorium of all such work for a period not to exceed

 

not more than 6 months. The legislative body may extend the

 

emergency moratorium for up to an additional period not to exceed 6

 

months upon finding that the threat of irreparable harm to

 

resources is still present. Any pending permit application

 

concerning a resource subject to an emergency moratorium may be

 

summarily denied.

 

     Sec. 14a. (1) Notwithstanding any local ordinance or charter,

 

demolition of a resource or work affecting the exterior of a

 

resource shall not be performed unless the commission has been

 

notified and a certificate of appropriateness or notice to proceed

 

has been issued as required under section 5. Any other federal,

 

state, or local governmental agency approval that the applicant

 

receives does not eliminate the applicant's need to obtain a

 

certificate of appropriateness or a notice to proceed from the

 

commission.

 

     (2) The requirements of this act apply in the absence of a

 

specifically described statutory exemption from compliance.

 

     Sec. 14b. (1) The state historic preservation trust fund is

 

created within the state treasury.

 

     (2) The state treasurer may receive money or other assets from

 

any source for deposit into the fund. The state treasurer shall

 

direct the investment of the fund. The state treasurer shall credit

 

to the fund interest and earnings from fund investments.

 

     (3) Money in the fund at the close of the fiscal year shall

 

remain in the fund and shall not lapse to the general fund.

 

     (4) The department shall be the administrator of the fund for

 

auditing purposes.

 

     (5) The department shall expend money from the fund, upon

 

appropriation, only for historic preservation purposes.

 

     Sec. 15. (1) A governmental agency or a duly organized

 

historic preservation organization may bring an action in circuit

 

court to enjoin a violation of this act or a local ordinance

 

substantially corresponding to this act. The court may award a

 

prevailing plaintiff in an action under this section expert witness

 

fees and other costs of bringing the action that the court finds

 

appropriate.

 

     (2) An individual, partnership, firm, corporation,

 

organization, institution, or governmental agency that performs

 

work on a resource in violation of an injunction issued under this

 

section is guilty of a misdemeanor punishable by imprisonment for

 

not more than 90 days or a fine of not more than $500.00, or both.

 

     (3) A governmental agency, including, but not limited to, the

 

department and the attorney general, may initiate proceedings to

 

enforce this act or a local ordinance substantially corresponding

 

to this act.

 

     (4) (1) A person, An individual, partnership, firm,

 

corporation, organization, institution, or governmental agency of

 

government that violates this act is responsible for a state civil

 

violation infraction and may be fined not more than $5,000.00

 

$50,000.00. If the infraction involves demolition of a resource,

 

the court may impose a fine of not more than $150,000.00. In

 

determining the fine to be imposed under this subsection, the court

 

shall consider the nature and extent of the infraction, the length

 

of time over which the infraction occurred, the frequency of past

 

violations, and any voluntary corrective action taken. To the

 

extent permitted by law, the civil fines collected under this

 

section shall be placed in the state historic preservation trust

 

fund created in section 14b. A commission may recommend

 

expenditures from the fund for any preservation purpose.

 

     (5) (2) A person, The court may order an individual,

 

partnership, firm, corporation, organization, institution, or

 

governmental agency of government that violates this act may be

 

ordered by the court or a local ordinance substantially

 

corresponding to this act to pay the costs to restore or replicate

 

a resource unlawfully constructed, added to, altered, repaired,

 

moved, excavated, or demolished.

 

     (6) A court that finds an agency of a local unit responsible

 

for violating this act may bar the local unit from receiving or

 

using state funds at the site where the violation occurred for not

 

longer than 5 years. If a violation by an agency of a local unit of

 

government involves demolition of a resource, the court may also

 

order that a building permit, certificate of appropriateness, or

 

notice to proceed shall not be issued by any local authority with

 

respect to the demolition site for not longer than 5 years from the

 

date of demolition.

 

     (7) This section does not prohibit a person from being charged

 

with, convicted of, or punished for any other violation of law

 

arising out of the same transaction as the violation of this

 

section.