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.