Demolition by Neglect: Does Davenport Have “the Stomach for the Fight”? Print
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Written by Jeff Ignatius   
Thursday, 03 February 2011 05:33

When the Davenport City Council ended an 18-month ordeal in December by allowing John Wisor a permit to demolish a designated historic home at 1125 Jersey Ridge Road, Mayor Bill Gluba called for a moratorium on the demolition of historic properties.

He refused to sign the demolition resolution – delaying but not stopping it from going into effect – and the Quad-City Times quoted him as saying: “I hope it sends a signal to Mr. Wisor or anyone else who seeks to flaunt the gaps in the ordinances. This council will stand up to those people.”

Those wer771-Cover-Hore big words, and the council will soon have the opportunity to back them up.

The core issue here is “demolition by neglect” – when the owner of a historic structure lets it deteriorate to the point that it becomes financially impractical to repair or restore. This is one way that property owners get demolition permits for buildings that are protected as historically or architecturally significant or part of designated historic neighborhoods.

Later in December, the Davenport City Council passed a moratorium on issuing demolition and building permits for historic properties, allowing for a review of city code. The moratorium expires on April 1, and recommendations for code changes are expected to go before the Plan & Zoning Commission and the city council in March.

Davenport’s Community Planning & Economic Development, legal, and fire departments are all looking at the issue of historic-property preservation and demolition. Based on discussions with representatives of those departments, it seems likely their recommendations will be modest – such as being clearer on the demolition-permit process, requiring the marketing of a property before a demolition permit is issued, and forbidding building permits for several years after a historic structure is demolished.

But if Davenport wants to stop the deterioration of historic properties, the city council will need to demonstrate political backbone beyond those ideas. To this point, Ward 3 Alderman Bill Boom said, “we have not had the stomach for the fight.”

One approach to halt demolition by neglect is to force owners of historic structures to maintain their properties instead of merely punishing them when they don’t. The city council could do this through code changes, or it could simply mandate more aggressive enforcement of the city’s existing property-maintenance code.

And other communities have crafted ordinances specific to demolition by neglect, but they require significant resources and willpower from local government. In the February/March 1999 issue of the National Alliance of Preservation Commissions’ Alliance Review, author Dan Becker wrote that addressing demolition by neglect head-on through a specific ordinance “is not for the faint of heart. It is aggressive, proactive preservation. Recognize that such a program is staff-resource intensive, and requires great precision in the application of due process.”

A November/December 2003 article in the same publication highlighted some of the political and financial challenges in addressing demolition by neglect. It argued that effective implementation requires uniform enforcement and clear definitions and procedures. It also suggested some techniques that will likely cause Davenport leaders to balk: “Provide economic incentives to encourage the maintenance and rehabilitation of historic properties”; “authorize the government to make the repairs directly and charge the owner by putting a lien on the property”; and “authorize the acquisition of the property by local government, by eminent domain if necessary, along with its rehabilitation and resale.”

Put Up or Shut Up

The Wisor situation brought to a head a problem faced by many communities. How can a city preserve its historic properties and neighborhoods? Can it do so while still being sensitive to the property rights and financial situations of owners? And can it do so without becoming a property developer?

According to Matthew G. Flynn, a senior manager in Davenport’s city-planning division, there have been 14 requests for demolition of historic structures in Davenport since early 2006. Once the house owned by Wisor is demolished, only two of those will remain standing.

But while these situations aren’t common, Flynn said, “they tend to be pretty emotional,” pitting property owners against historic-preservation advocates.

That conflict is to some extent institutionalized, as the city code requires that members of the Historic Preservation Commission – which rules on historic-property demolition requests – show “a positive interest in historic preservation and/or cultural-resource-management issues.”

With commission members required to be pro-preservation, it’s understandable that demolition-permit requests for historic structures are oftentimes contentious. However, there are several problems with Davenport’s city code as it relates to historic properties, and several city departments are looking at ways to fix them.

One area is clarifying when a structure should come down instead of being repaired.

“There are no standards or criteria under which we as a city will evaluate documentation provided to us that would make the argument that a structure is beyond repair,” Flynn said. “There’s no threshold such as cost of repair to assessed or appraised value. [We’re] looking to quantify things more there.”

Flynn said it will be a council decision whether there will be a “magic formula” to make that determination, or whether some subjectivity should be built into the process.

Repair estimates are currently requested in the demolition-permit procedure, but the code “doesn’t talk about how it’s actually applied” to the decision whether to issue a demolition permit, Flynn said. He added that a separate change could be to allow the city to order a second cost estimate at its own expense.

Another question the council needs to answer is whether appeals of Historic Preservation Commission rulings should go to the city council (as they presently do) or straight to district court. Bypassing the council would remove the politics from the situation, but it would also deny city elected officials the opportunity to speak on issues that affect the community. (Of the 14 recent demolition-permit requests, only two have gone to the city council; both were approved there.)

Still another potential change would be to build into the demolition-permit process a waiting period during which an owner would be required to investigate alternatives to demolition, including marketing the property to potential new owners. If this is approved, “the whole act of demolishing a historic property kind of takes the path of a moratorium in itself,” Flynn explained. “You apply for demolition, but what it does is prohibits demolition for a period of time.” He called it “kind of a cooling-off period ... . It allows the whole community to step back and give one more chance to try to find solutions.”

Davenport Corporation Counsel Tom Warner said the 180-day waiting period common in other communities is “kind of a put-up or shut-up approach to the situation” for preservation advocates. “Either come forward and take over the property yourself or let it go.”

Warner said that one potential downside of that policy, however, is that the default position in many communities is the automatic approval of the demolition permit if the waiting period passes without a sale.

For his part, Warner said he’s looking at two specific areas for code changes.

One is increasing the fine for intentionally damaging a historic property. Right now, he said, a first offense carries a fine of $30. “The way things are structured right now, there’s really not that great of a penalty,” he said. Warner said he might recommend increasing the penalty, and allowing violations to be written either civilly or criminally. (While this addresses a different situation from demolition by neglect, it’s a related issue.)

His second area of exploration is making an owner wait to redevelop a historic property post-demolition. “We’ll ask the council to put in there that for a certain number of years, you wouldn’t be able to get a building permit,” Warner said. He added that he doesn’t know what time frame he’ll recommend, but “it’ll be at least two years. So it may be enough to make people think long and hard about whether they’re going to take the approach of sitting on a property and letting it rot. Because they don’t have that reward then, where they can immediately start building.”

It’s critical to note, however, that nearly all of these would kick in when a building has already deteriorated. Neither Flynn nor Warner is presently offering ideas to address the problem before it’s likely too late.

Tools in Theory

Like Davenport, Rock Island has struggled with demolition by neglect. A few years ago, said city urban planner Jill Doak, “we were definitely facing these issues with some of our landmarked buildings – long-term deferred maintenance ... – and our existing codes were not handling it.”

At the same time that the city was exploring whether to draft an ordinance specific to demolition by neglect, it was also looking at adopting a property-maintenance code – an ordinance that applies to all properties in the city, and requires owners to properly maintain their buildings. Complaints – typically health-and-safety issues such as broken windows or holes in a roof – trigger property-maintenance-code enforcement, and owners can ultimately be subject to fines, court orders, and liens against their person and property if they don’t make repairs.

Rock Island adopted its property-maintenance code in 2005, and Doak said it made it unnecessary to adopt a demolition-by-neglect ordinance. “This ordinance, we felt, was going to not protect only historic properties but all properties,” she said.

She added that the city has prevented several demolition-by-neglect situations through the code. “In a typical ownership situation, I think it’s a good tool,” she said. “The property-maintenance code is ideal.”

But Thomas G. Ayers, Rock Island’s chief building official, stressed that enforcement of the property-maintenance code requires coordination and will: “It takes competent, aggressive legal support ... .”

Moline similarly applies its property-maintenance code to all properties, and economic-development manager Patrick Burke said he thinks the city has used it to effectively avoid some demolition-by-neglect issues.

But a property-maintenance code can’t address all problems. Rock Island officials said an absentee owner can make enforcement difficult. And if a property owner doesn’t have the financial resources to make repairs, there’s little that can be done. “All these things [repairs] cost money,” Ayers said. “If you don’t have the money, you don’t have the money.”

Davenport, like Rock Island, has a property-maintenance code that applies to all structures. But there are differences.

Warner said Iowa courts are likely to side with owners on property-maintenance issues, and they’ve been generally unwilling to let cities fine owners for each day of a code violation (as the city code presently allows). That, he said, renders the property-maintenance code an ineffective tool in Davenport. “There seem to be tools there in theory,” he said. “In practice, they don’t work.”

The biggest difference, however, might be one of aggression. Rock Island officials fully support using that code to try to prevent demolition by neglect of historic structures, while in Davenport there’s a clear reticence. As Boom said: “A lot of what we need is currently in the city code,” but there hasn’t been a desire to enforce the code.

For Davenport Fire Chief Mark Frese, it’s an issue of fairness and property rights. While his department conducts regular inspections of rental properties, enforcement of the property-maintenance code with owner-occupied or vacant properties is a complaint-driven process, as in Rock Island. But he said he doesn’t think it can be applied equitably in neighborhoods where “everybody’s house is suspect as far as needing some attention. ... We struggle with complaint-based because oftentimes the validity behind the complaint comes into question because of what generated it. Is it truly an eyesore to the neighborhood, or is it truly a battle between the homeowner and the next-door neighbor? ...

“How do you build that compliance factor into something that is not enforced [uniformly] across the city? It’s almost impossible to do. ... How do you build something that is fair and equitable to everybody involved?”

Furthermore, he said, the property-maintenance code raises issues about the role of government in terms of private property. “When you own a piece of property ... does the government have the right to come in and tell you what to do?” he asked. “That’s a difficult issue. ... Home ownership is a right that we have in this country. I think part of that ... is we have to live within the codes and the regulations and things we have in the city, but we have to be very careful on how we walk in and intrude on somebody’s freedoms. ...

“I certainly don’t like strong-arming people,” he added. “I think what that does is it creates a very bad relationship between government and the people.”

That makes it sound as if Frese would oppose enforcement of the existing property-maintenance code with historic properties. (He did note that he would follow any city-council mandate: “They’re my bosses. I’d have to support it.”) However, the fire chief said that under certain conditions, he would be more supportive of a property-maintenance code specific to historic properties.

Assuming that the sale or transfer of a historic property included some notice to the incoming owner about the designation and the legal obligations related to it – something that doesn’t happen now – Frese said a historic-property-maintenance code makes more sense than the current situation.

“An ordinance that allows us to react is much better than trying to find one that’s currently on the books and apply it to historic homes ... ,” Frese said. “If you’re going to tag ... an ordinance specific for historic properties, that would give us the leverage to do those things to prevent demolition by neglect.”

Flynn said on January 12 that a property-maintenance code for historic properties is not presently one of the ideas staff is studying. “We at this point haven’t had any discussions about distinguishing historic structures from the rest of the properties,” he said. “That’s not to say that it couldn’t be done ... . We recognize that there are additional responsibilities of owning a historic property, but I think there’s a concern about being too onerous ... . The idea is to not have basically two sets of standards: one for historic properties and one for the run-of-the-mill property down the street. ... There’s a concern about fairness.”

Warner said the city has lacked “the political will to ... treat historic property different than a non-historic property that might be next door or a block away or two blocks away.” Furthermore, aggressive enforcement of the property-maintenance code might require that taxpayer money be used to make repairs, and Warner said that liens to cover the cost of repairs make it more difficult to sell a property.

Ultimately, Warner said, how the current property-maintenance code is applied and whether a separate maintenance code is used to target historic properties “are the big policy questions that the [city] council gets to answer.”

Boom said he believes a larger discussion – addressing all abandoned properties and not just demolition by neglect of historic properties – will happen after staff recommendations are delivered to the council. “I’m waiting like everybody else,” he said.

For his part, Mayor Gluba is also taking a wait-and-see attitude. In written responses to questions, he supported increasing penalties for intentional damage to historic structures and developing infill standards for historic neighborhoods. Beyond that, he deferred to staff instead of offering additional ideas.

But he rejected the suggestion that the current city code could be used to prevent demolition by neglect. “It isn’t a matter of better enforcement,” he wrote. “There are limits to what we as a city can require of private property owners, and appropriately so.”

Gluba also hinted that he wouldn’t have the stomach for an aggressive approach to preventing demolition by neglect: “There is a limit to what government can do, both in terms of our legal authority and financial resources.”

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