Applications

The owner of Cedar Grove has requested that the Historic Landmarks Commission make a recommendation to the Huntersville Town Board that 20 acres now designated as part of the Cedar Grove Historic Landmark be removed from designation.  I asked Marvin Bethune to explain the powers of the Historic Landmarks Commission with respect to this matter.

Here is his memorandum.

TO: Dr. Dan Morrill, Consulting Director

Charlotte-Mecklenburg Historic Landmarks Commission

FROM: Marvin A. Bethune, County Attorney

DATE: June 8, 2001

SUBJECT: Amendment or Repeal of Ordinances Designating Historic Landmarks

What do the statutes governing historic districts and landmarks provide with respect to the amendment or repeal of ordinances designating historic landmarks, especially as they relate to a site or area designated as an historic landmark?

The statutory authority governing historic districts and landmarks is found in Part 3C of Article 19 of Chapter 160A (G.S. 160A-400.1 through 400.14). Although it is clear from these statutes [see, for example, G.S. 160A-400.8(2)] that "individual structures, buildings, sites, areas, or objects" may be designated by ordinance as "Landmarks", most of the language in the statutes seems to be directed toward dealing with individual structures or buildings, and not sites or areas. For example, in G.S. 160A-400.5, the following sentence is found:

"For each building, structure, site, area, or object so designated as a historic landmark, the ordinance shall require that the waiting period set forth in this Part be observed prior to its demolition." (emphasis added)

Although the term "demolition" is frequently used in reference to a structure or building, it is not frequently used in connection with a site or area, as it would seem to be difficult to truly "demolish" a piece of real property. For that reason, it seems to me that the word "demolish" must be interpreted broadly to include, with respect to a site or an area, any action which would alter or remove the characteristics of the area or site which made it qualify as an historic landmark.

The following statutory language that deals with amendment or repeal of an ordinance designating an historic landmark is found in the statutes governing historic landmarks:

· 160A-400.5 Designation of landmarks; adoption of an ordinance; criteria for

"Upon complying with G.S. 160A-400.6, the governing board may adopt and from time

to time amend or repeal an ordinance designating one or more historic landmarks."

(emphasis added)

· 160A-400.6. Required landmark designation procedures.

There is no specific language in G.S. 160A-400.6 that mentions amendment or repeal of such an ordinance. It would appear to me, however, that the sections of that statute which would be relevant to amendment or repeal are found in (4), which require public hearings or joint public hearings by both the preservation commission and the governing board; in (5), the action by the governing board to either amend or repeal the ordinance; the notice given to the various agencies mentioned in (6); and the notice given to the tax supervisor required by (7).

· 160A-400.8 Powers of the Historic Preservation Commission.

"A preservation commission established pursuant to this Part may, within the zoning jurisdiction of the municipality: . . .

(5) Recommend to the governing board that designation of any area as a historic district or part thereof, or designation of any building, structure, site, area, or object as a landmark, be revoked or removed for cause;"

The term "for cause" is not defined in the statute; therefore, it would be up to the Historic Landmarks Commission to decide for itself what that phrase means. If, for example, a building, structure, site, area or object was destroyed or significantly damaged, for some reason or in some manner, such that it no longer had the characteristics that made it suitable for designation, that would seem to qualify as "for cause". There are probably other examples that one might come up with, but no others come immediately to mind.

It would seem to me that if the owner of a property designated as a landmark filed an application seeking amendment or repeal of the ordinance designating the historic landmark, the Historic Landmarks Commission would have an implied duty to cooperate with the governing board to call or participate in public hearings on such repeal or amendment, if that were the wish of the governing board. I do not believe that the Historic Landmarks Commission would have the duty to recommend revocation or amendment if it did not believe that was appropriate. I realize that the statute uses the term "for cause" with respect to repealing such an ordinance, but since the term is not defined, it would be up to the Historic Landmarks Commission itself to decide whether it believes there was "cause" for the designation to be revoked. There is nothing in the statute with respect to the duty of the Landmarks Commission if a property owner asked for an amendment, but I would think that the Landmarks Commission would likewise have an implied duty to its governing body to participate in any such public hearings and to make the recommendation that it seemed appropriate as to whether the landmark status should be amended.

· G.S. 160A-400.14 Delay in demolition of landmarks and buildings within historic district.

The statute sets forth the procedure for a property owner to apply for a certificate of appropriateness "authorizing the relocation, demolition or destruction of a designated landmark or a building, structure or site . . ." If a property owner were to apply for the amendment or repeal of an ordinance for an historic site and be denied such amendment or repeal, the property owner could still apply for a certificate of appropriateness. Under normal circumstances the historic preservation commission must grant the request but the effective date "may be delayed for a period of up to 365 days from the date of approval." However, an "application for a certificate of appropriateness authorizing the demolition or destruction of a building, site, or structure determined by the State Historic Preservation Officer as having statewide significance as defined in the criteria of the National Register of Historic Places may be denied except where the Commission finds that the owner would suffer extreme hardship or be permanently deprived of all beneficial use of or return by virtue of the denial."

If you have any questions or want to discuss this matter with me, please feel free to give me a call. I am sorry that I am not able to offer you much more information than this, but the statutes really have very little information on this topic, as you can tell.

MAB:cs