REGULAR AGENDA ITEMS:
Conduct public hearing regarding the structure located at 1019 Kentucky Street, and make a determination based on a consideration of all relevant factors that there is/is not a feasible and prudent alternative to the proposed demolition of the structure and that the proposed demolition includes/does not include all possible planning to minimize harm to the listed property. This is an appeal of the Historic Resources Commission determination (DR-09-112-06).
Mayor Amyx called a public hearing regarding the structure located at 1019 Kentucky Street.
Lynn Zollner, Historic Resources Administrator, presented the staff report. She said the property for the demolition request was located in the environs of several properties that were listed on the National Register of Historical Places and the Lawrence Register of Historic Places. She said when the applicant first proposed demolition of this structure, that district was not in place. The property was presented to the Historic Resources Commission not as a non-contributing structure to a historic district, but as an environs project.
The HRC review under K.S.A. 75-2724 for projects that are within 500 feet of a property listed on the National or State Register of Historic Places have to be reviewed for their impact on the listed property. The City of Lawrence had an agreement with the State Historic Preservation Office to conduct those reviews on a local level, and Historic Resources Commission conducted those reviews on behalf of the City. She said for the projects in those environs, the Historic Resources Commission must use the standards and guidelines for evaluating the affected projects on the environs.
She said they did know the structure was constructed circa 1885 and was known as the Barber House in the National Historic Register Nomination. She said the HRC had used the standards and guidelines for evaluating this project and the first of two standards the HRC found were the most relevant to the project was standard 1, addressing the character of the property’s environs. She said retaining and preserving that character was of the utmost importance. She said things like landscape features, space relationships and characteristics of the environs should be preserved and the demolition or reduction of those should be avoided.
She said standard 4 specifically spoke to demolition. She said demolition of character defining building, structure, landscape features and historic property’s environs should be avoided. She said when the severity of deterioration required removal within the environs, compatible reconstruction should occur. She reviewed the guidelines that went with those standards, which was retaining the features, and if removal was warranted, there should be compatible new construction.
She said the HRC found that based on the applicant’s proposal and since there was not a compatible replacement structure as part of that proposal, it did not meet the standards and guidelines they were required to use to review this project.
The applicant was repealing the decision per K.S.A. 27-24, as amended, and that was the reason for this public hearing to determine if there was a feasible and prudent alternative to the proposed project. If no feasible and prudent alternative was available, the City Commission should determine if all possible planning to minimize the harm to the listed property associated with the project was identified and undertaken.
Commissioner Rundle asked if a replacement structure could be placed at that location under the current code.
Zollner said yes. She said as far back as 1889, even though this was one platted lot, it showed the two parcels existed with individual structures on those parcels and was a non- conforming lot, so there was provision and residential could be constructed.
Commissioner Schauner said if there were to be a replacement structure built, he asked if it would require some architectural conformity with its neighbors.
Zollner said it needed to be a compatible replacement structure. She said compatibility issues looked at size, scale, massing, materials and setbacks, but not architectural style.
Commissioner Schauner said the structure could be a square or rectangular box with no architectural features and that would be compatible with their review.
Zollner said if the size, scale and massing were compatible.
Commissioner Schauner asked if “feasible and prudent” required information about the cost of repair and maintenance.
Zollner said yes, and that information was included in the City Commission’s packet materials in terms to what the applicant had addressed as the cost factor to rehabilitate the existing structure versus new construction.
Mayor Amyx said the Commission made the determination on feasible and prudent alternatives that were sensible or realistic and asked if that was to the property owner.
Zollner said it was what the City Commission determined was sensible or realistic, feasible and prudent.
Commissioner Schauner asked if there was a metric in which that was measured or was it a subjective call on the Commission’s part.
Zollner said it was based on the definitions in the state statute.
Commissioner Highberger said on the surface, the structure did not look like it was falling down. He asked if the structural damage was caused by termites or were other things going on.
Zollner said she thought there were several things going on with this structure. She said upon rudimentary inspection by staff, there had been termite damage in the structure for some time. She said in the 1950’s someone tried to make repairs to that structure and those repairs were not modern day up to code repairs. She said a lot of the stabilizing structural joints were cut off and they slapped something underneath it. There was water damage in the basement and deferred maintenance on the structure. She said she and Neighborhood Resources thought it was fairly marginal on whether the structure could be repaired or not, but the further the applicant investigated the structure, more deterioration was found.
Commissioner Schauner said if the City Commission believed the damage and cost of repair did not match the reasonable and prudent standards, what authority did the Commission or anyone else had to cause this building to be put into habitual conditions. He asked if the building could just sit there and deteriorate further. He said they have had long discussions in the past about garages that were falling apart and that became a substantial effort on Neighborhood Resources. He asked what happened if the denial to demolish was upheld.
David Corliss, City Manager, said it was his understanding the City had not initiated any dangerous or unsafe structure proceedings on the property.
Zollner said correct.
Corliss asked if there were any current citations as far as any other code violations on the property.
Zollner said not that she was aware of.
Corliss said staff did not have jurisdiction over the property in order to require the property owner to rehabilitate the property. He said staff might be able to initiate the rehabilitation if staff had blight evidence, but he did not know if that was the fact. He said if the City Commission denied the appeal and sustained the Historic Resources Commission’s determination and deny the demolition, then the status quo stayed.
Commissioner Schauner said in looking at the applicant’s letter, it stated the owner had also agreed to write a letter stating the property was beyond rehabilitation and asked if that was Zollner’s position.
Zollner said the Historic Resources Commission submitted the letter, stating the HRC recognized the fact the structure might have reached that point where rehabilitation might actually create a new structure as opposed to a rehabilitated one. There was so much historic fabric already gone and so much compromise, so if the structure was rehabilitated, the structure might be a new structure and no longer historic. In other words, there would be less than 20% historic fabric left. She said while the HRC recognized that fact, they wanted to make sure the Commission understood the HRC had to deny the demolition request because there was no replacement structure as part of the project.
Commissioner Schauner said to the HRC, the replacement structure was the missing element.
Zollner said yes.
Commissioner Rundle said if demolition were to occur, he asked if the applicant wished to build another structure or leave the lot empty.
Mayor Amyx said they would ask that question to the applicant during the hearing.
He asked if the City Commission made the determination on whether it was realistic to have the property owner rebuild a structure on that lot.
Zollner said the City Commission made a determination whether or not there was a feasible and prudent alternative to the demolition of this structure.
Mayor Amyx opened the public hearing.
Ellie Le Compte, applicant, said they looked into rehabilitation and found they could rehabilitate the structure, but an engineer named John Lyle from Topeka indicated the stability of the structure was so uncertain, they would need to remove all of the interior plaster and examine every single member of the frame of the house to determine if the house could be lifted up, held up in the air, because the entire foundation had to be replaced. The foundation and repairs of foundation were all failing. She said the foundation had to be replaced and in order to hang on to the house, they would end up with a frame and siding, which made it a contributing structure, but the siding was like a wave because of the movement of the house on the land that where the structure sat. She said the structure would probably need to be extensively repaired and replaced as well.
She said the professional engineer, Lyle, stated that regarding the feasibility of this project, a rough estimate to renovate this structure would likely be around $200,000 and very well might cost $250,000 or more, if it could be done at all. She said she owned both of the properties on either side--1017 Kentucky to the north and 1023 Kentucky--and had renovated both of the properties successfully. The appraised value of 1017 Kentucky, to the north, which was essentially the same as 1019 Kentucky except it had a small addition on the back, was $107,000. The appraised value of 1023 Kentucky, which was completely renovated, on the other side, considerably larger and on a full size lot, was $74,300. She said to replace that property, it would cost approximately for the no frill structure $175 a square foot for a very basic structure and the most basic 1200 foot structure would cost about $180,000. She said the Historic Resource Commission recommended replacing the building with one of similar mass and adding another 300 square feet to the rear property, which had been done on 1017 Kentucky before she bought it. She said the result would be building approximately 1500 square feet with price ranging $225,000 - $262,500, not including the original price of $74,000 for which she bought the property, or the demolition costs of the existing structure which would be around $10,000.
She said she surveyed some of the other landlords that had other property. She said she talked to John Crawford and John Snider who have properties on that same block and rent space out to people, and said the range of rent varied from $300 - $600 for an apartment or a room. She said she could not make her basic expenses how ever she rehabilitated, and she was completely ineligible for tax incentives because so much of the historic fabric of the building would be destroyed, it would not meet the standards of the National Park Service, which was the governing agency for the tax incentives for the historic preservation of the Federal Government, nor would it meet the standards for the State Historic Preservation Society, so she was completely ineligible for any tax incentives. All of the money to either rehabilitate or to rebuild the house would have to come out of her pocket and even if she had a 1500 foot structure, the most spaces she could get out of that would be 3 pretty small apartments or offices at $300 - $600 a piece, more in the range of $450 she was guessing because they would be pretty small. She said she would be losing money every month. She said she could have the entire house rigged so that each space had its own utilities, which was an additional expense she had not taken into account, so that the tenants pay the utilities. She said they were basically talking about doing this project from the ground up, either through rehabilitation or building a new structure.
She said the other concern she had was that she already had tenants on either side of this property. In the last two days there has been a toilet problem at 1017 Kentucky and they were unable to find the pipe where they could install a clean out, so they have completely dug out all of the area behind both buildings, which was extremely disruptive to the tenants. She said she was concerned about the cost, not being able to recoup the cost in her lifetime, potential damage to 1017 Kentucky considering it was 10 feet away, and how it was going to affect the tenants she had on either side. She said she was completely pro preservation, but this was not a project that was feasible financially. She said what she had experienced with historic preservation was financial feasibility was last on the list and the financial feasibility was the issue she brought to the City Commission. She said historic preservation operated on the assumption that if it was feasible (i.e., if it could be done), then it was feasible, but whether it was feasible financially was not considered an issue. She said she was also concerned about the effects on the buildings she owned on either side.
Vice Mayor Hack asked Le Compte how long she owned the property.
Le Compte said she bought the property August 16, 2006. She said the mortgage payment was $450 a month plus utilities. She said she bought the property because she was concerned that someone could buy the property for $74,000 and without doing anything to the structure, rent it out for which a $450 payment could be made easily with three tenants who were not related, paying $150 a month in rent, and asked about the type of tenant that would bring. She said she already survived a crack house on that block and right now she was struggling with a boarding house which had 15 girls living in that house with 6 parking spaces. She said there was another boarding house down the alley with boys living in it. She said she did not want to contribute to some situation that might be frightening to her tenants or their clients.
Vice Mayor Hack asked if her goal in buying that property was to protect her other properties or was it to rehabilitate the structure.
Le Compte said she was willing to rehabilitate the structure. She said when she initially went to the Historic Preservation Commission and asked for demolition, the HRC said before considering demolition, the HRC wanted her to look at everything that had to be done to rehabilitate and she followed every statement. She said she had all the exterior fiber board siding removed, all the plaster on the first floor from the floor to three feet up removed so they could assess the extent of termite damage on the inside of the house, and then had a professional engineer come and examine the house very closely and give an estimate on what it would cost or if it was feasible to rehabilitate. She said she was open to the idea but was not wildly open to the idea at that cost because she did not think there was a way for her to recoup the money. She said she was even open to the idea of building a new structure, but the cost of $175 a square foot was extremely high. She said at this point, she was asking the City Commission to consider and allow her to demolish the property.
Commissioner Highberger asked where the $175 a square foot estimate came from.
Le Compte said it came from her contractor and a professional engineer.
Moved by Hack, seconded by Highberger, to close the public hearing. Motion carried unanimously.
Mayor Amyx said if the Commission made the determination that there were no feasible and prudent alternatives, he asked if there would be a vacant piece of property if demolition was allowed. He said if the goal of the property owner was to rehab the property, but a determination was made that she could not afford the rehab, he asked if the property could be replatted so the land could be divided to the two outside properties.
Zollner said the
applicant could apply to have the property replatted.
Mayor Amyx asked
if the City Commission could require that property be replatted.
Corliss said he did not know the answer. He said it could be made a condition of the demolition permit.
Mayor Amyx said the reason he asked was because he did not want to see it become a parking lot.
Corliss said he thought as a condition of the demolition permit, the City Commission could require the applicant to replat the property. He said the Commission could condition the use of that property as well and not allow the property to be a parking lot.
Mayor Amyx asked if the land use recommendation was a better way versus forcing the applicant to do something else. He said there were business concerns on those properties and obviously that was an off street parking area.
Corliss said the City Commission had pretty extensive authority as long as they had reasonable conditions.
Vice Mayor Hack said the property could be conditioned to residential use.
Corliss said the property was zoned for residential use.
Vice Mayor Hack said Zollner’s report indicated to the City Commission that there would not be eligibility for tax credits because so much of the historical part of the structure would be lost.
Zollner said it was not that the property was not eligible, and actually by the removal of the siding and returning it back to this state, it could now be considered as a contributing structure to the district which would allow it be to eligible for the state rehabilitation tax credit. She said if it was going to become an income producing structure, it could also be eligible for the federal tax credit. She said when the tax credit review at the State Historic Preservation office looked at this structure, they determined it to be in a status of concern because there was so much deterioration that if it was a non sympathetic contractor that came in and wholesale replaced rather than repaired, then they would end up with a new structure rather than a rehabilitated structure. She said if it were a new structure at the end, then the tax credits would not pay for a new structure and would pay for a rehabilitated structure. She said there would be that weighing there that would have to happen as that process went along. She said they were eligible for the tax credits, but the status of building was so critical as to how much needed repaired or replaced, that it could be the structure would not be eligible.
Commissioner Schauner asked if it was correct that it was only the exterior the tax credits would look at to whether it would retain its historic character.
Zollner said no. She said whether or not it was contributing or non-contributing was based on its external appearance. She said the tax credits would pay for everything from the new foundation to HVAC, to electrical and plumbing, wiring, anything that went into saving that structure.
Commissioner Schauner asked if the interior needed to be gutted.
Zollner said no, when they do the tax credits they look at the interior finish as well as the exterior.
Vice Mayor Hack said to the extent it could be preserved as much as possible, she asked if it could still be eligible.
Zollner said correct.
Commissioner Rundle said those were very different planning animals than other planning items and the HRC had a very narrow charge, as did the City Commission. He said he wanted to commend Zollner in helping clarify the process along with helping the public and applicants understand that. He said a feasible and prudent alternative for historic properties was also something that was quite different than for a normal project, in part, because some people did make some projects work. He asked if selling the property to someone who would try to rehab the structure would be included as a feasible and prudent alternative.
Zollner said it would be for this City Commission to determine.
Commissioner Rundle asked if that was something that would normally be considered.
Zollner said if the City Commission determined that was a feasible and prudent alternative. The statue laid this right at the City Commission’s feet to make those determination based on those definitions.
Mayor Amyx said if the City Commission were to make a determination based on a feasible and prudent alternative which was the sale of the property to someone else, he asked if that would be like a taking.
Commissioner Rundle said they would need to find someone who could actually verify they were going to do what the Historic Resources people at the state level wanted to do which was to keep it a contributing structure.
Corliss said they could not force the sale, but they knew from the recent acquisition what was a reasonable sale price of the property. He said the likelihood of that would be a matter of judgment and the point was the acquisition of the property was not simply for income, but protecting other property and that would have to be taken into account as well. He said if given a reasonable period of time, the property could well come to the hands of a qualified purchaser who could rehabilitate the property and met the needs of the current property owner both economically and for protection of the other property; he thought that could be an alternative. He said whether or not that was feasible, was a matter of some judgment.
Commissioner Rundle said he was not necessarily lobbying for that idea. He said there was a substantial amount of evidence that it might not be feasible even for people that did that type of work. He said for example, the Old English Lutheran Church at 11th and New Hampshire, they wanted to tear it down and someone else bought the structure, rehabilitate it, and now it was a viable structure. He said that was a much different situation than this because it was commercial. He said because the City Commission was to look at all feasible and prudent alternatives, the Commission needed to open up that as one of the remote chances that might apply here.
Mayor Amyx asked if the applicant had any other appeal other than to this body.
Zollner said there was an appeal to the court.
Corliss said this was a quasi judicial decision applying the law to the facts before the City Commission in making certain findings. He said after the findings were certified to the Historic Preservation officer, either the applicant or other parties had the opportunity to challenge the finding in court.
Mayor Amyx said because there were so many things to take into consideration, he asked the applicant’s information that she had from the engineer should be provided to the City Commission.
Zollner said that information was in their packet.
Mayor Amyx said the next thing was whatever determination the City Commission made, they had to have factors presented on whatever decision the Commission made.
Corliss said the City Commission conducted the hearing and now the Commission needed to make a determination based on the factors the Commission heard, whether or not there was a feasible and prudent alternative to the proposed demolition, and whether the proposed demolition included all possible planning to minimize the harm of the listed properties.
Zollner said the applicant asked that she show the City Commission an e-mail from the State Historic Preservation Office showing they did define the building as what they called a fragile building and issued a warning so the applicant was aware it could go through the rehabilitation tax credit process, but they might not be eligible to participate.
Mayor Amyx said they had a situation where a property owner could not afford to rehab that property at the cost estimates from a licensed engineer and the determination they had to make was to consider all feasible and prudent alternatives and if none existed, then they could proceed with the demolition with conditions. He said if it was determined there were prudent and feasible alternatives he asked if the Commission needed to indicate those alternatives.
Zollner said the City Commission did not need to identify those alternatives, but staff recommended if the City Commission determined there were feasible and prudent alternatives, they identify them in case this was challenged in a legal battle.
Commissioner Schauner said the property just sold for $75,000, give or take, and the cost to demolish the structure was $10,000, which was $85,000, so they would lose $85,000 while spending additional money to build, repair it and build a new structure in its place. He said the differential between the two struck him as being a number against which they all measured fiscal prudence, not the gross number of building a new structure on a piece of bare ground.
Mayor Amyx said if this property was eligible for rehab, they would have a $75,000 loss plus $175,000 or whatever that figure was going to be.
Commissioner Schauner said they already lost $75,000.
Mayor Amyx asked if that property would be worth 2 ½ time more when it was completed.
Commissioner Schauner said he did not know. He said regarding the Mayor’s comment about conditioning the demolition permit on replatting and giving half to each side of the property and since the owner owned a house on each side, he thought if would be an easier condition to enforce.
Commissioner Rundle said he would rather not divide that property. He said if the opportunity came in the future to move an appropriate structure onto that spot, then they would have the provisional fabric restored. He said it sounded like there were plenty of ways to restrict that so it did not become a parking lot.
Corliss said he thought the City Commission could use their powers regarding the demolition permit to condition that it would not be improved as a parking lot.
Mayor Amyx asked if they, as a Commission, believed feasible and prudent alternatives existed for repair or recondition of this property.
Commissioner Highberger said it was his understanding for this to proceed they had to make two findings. He said the Commission had to find there was no feasible and prudent alternative and if found, they also had to find the proposal included all possible planning to minimize harm to the listed properties. He said he was reluctantly willing to agree there was no feasible and prudent alternative. He said he was not at the point that he thought all possible planning to minimize harm had taken place.
Commissioner Highberger said that was his concern and very much appreciated the applicant’s efforts to preserve the houses on both sides and did not want to discourage the engineering estimates presented, but found it a little difficult to believe the implication of what they were told, that infill construction in the neighborhoods was not financially feasible, and was not prepared to accept that. He said that it might not be in this case, but looked at the last line in the letter from the Historic Resources Commission and encouraged the applicant to work with the HRC and staff to see if there was not a way to better minimize the harm for the registered properties.
Commissioner Rundle said if this structure were to be demolished and time passed, he asked if a future proposal for construction would go before the HRC.
Zollner said correct.
Mayor Amyx said he did not think an alternative feasible improvement existed. He said his main concern was how to protect the structure on the other side and the environs and not ending up with something that would have a harmful effect. He said he did not want a parking lot to be put up between the properties.
Vice Mayor Hack said she agreed. She said she hated the thought of tearing down a building in that area, but at the same time she knew this looked like it was beyond hope. She said the Commission needed to do something about demolition by neglect so that future Commissions were not facing this kind of decision. She said the last thing she thought anyone wanted to do was do harm to other core neighborhoods. She said they did not want to leave empty lots or create situations where there were unsafe conditions in the neighborhood for anyone. She said they were really stuck between a rock and hard place and were put in this position because someone else did not take care of the property before Le Compte had it. She said she appreciated Le Compte’s desire to do something positive for her existing properties, but also for the neighborhood in general, which was why it was so difficult to think about tearing it down. She said she thought if it could be conditioned on the replacement of the future structure that would fit in with the character of the neighborhood, then she could reluctantly go along with it.
Commissioner Rundle asked if there would still be a 30-day waiting period for a demolition permit.
Zollner said the 30-day period already concluded. She said there would be a 5-day waiting period because they would have to notify the State Historic Preservation Officer of the City Commission’s determination and if that determination was to overturn the ruling of the HRC, then they had 5 days to comment.
Commissioner Rundle said he agreed it was hard to say there were feasible and prudent alternatives. He said one of the technical issues was the idea of having to phase the structure and whether it was stable or not. He said to find out if that was feasible would take a lot to invest. He said the rehabilitation process for a structure in this condition met that factor. He said the communitywide plan had an emphasis on preservation. He said that structure itself was not incompatible to the plan. He said he thought there were adequate factors to make that determination and he encouraged contacting people who had done rehabilitation, if they were interested in partnering, but he was thinking about the 30-day waiting period that would give them a chance for that to happen. He said he encouraged Le Compte not to proceed hastily with the demolition, but he was prepared to say there was a finding that there was no feasible and prudent finding prohibiting demolition.
Commissioner Schauner said on the one hand if the building came down, he guessed there would never be another structure on that location, which was consistent with the architectural character of that neighborhood. He said he looked to Commissioner Rundle who had more experience on those matters than he did in terms of he has fought over the years in doing anything but tearing the structures down. He said he went back to what Commissioner Highberger said about the two tests, the first test about prudent and reasonable alternative and the second test was making sure they did not do any harm to the other structures nearby. He said he wondered if a vacant lot, even if it was zoned or conditioned so it could not become a parking lot, if it did harm to the other structures or not. He said he suspected he preferred that to a structure that was built there that was not architecturally compatible with the neighborhood, and they see a lot of those structures in Oread which was very detrimental, in his view, to the neighborhood.
Mayor Amyx said he suggested making the first determination there was no feasible and prudent alternative and suggested staff draft language that would take care of those concerns to make sure they were not creating problems to the adjacent structures.
Commissioner Schauner said he could support that idea, but his caveat would be if the City Commission were asking staff to do that this evening it did not give them enough time.
Corliss said they could continue it until the meeting on March 6th where staff would come back with the findings. He said his question was if it was acceptable to the Commission to place conditions on the property such as no parking or those types of things so it would not turn into a de facto parking lot.
Commissioner Highberger said the property the Commission was trying to minimize harm to was the property and historic houses in historic neighborhoods and he understood the key concern for HRC was the break in the street front. He said he shared Commissioner Schauner’s concern that an inappropriate street front might be worse than nothing at all. He said he was not trying to minimize the effort put into this issue or the difficulty, but he would like to see one more shot to finding a way to put some structure at that location before they allow demolition without any replacement option.
Commissioner Schauner said he did not claim to have any great expertise in construction, but it was his sense that $175 per square foot built a pretty swell place. He said at $150 a square foot where the land was not an additional cost, it seemed it was a figure that built a whole lot of houses in West Lawrence at $150 per square foot, including land costs. He said before the City Commission actually pulled the trigger on this property, he suggested deferring the entire issue until March 6th and give the applicant an opportunity to look more into this issue.
Mayor Amyx said they held the necessary public hearing and did not need to reopen the public hearing. He said all that was left was a determination from the Commission by the 6th of March.
Vice Mayor Hack asked if they wanted staff to draft some language if the City Commission determined this was completed.
Commissioner Rundle said he hardly ever thought that one found there was no feasible and prudent alternative because they saw out in the practice of people in historic preservation; there were so many examples where structures were brought back. He said it was the size of the structure and the costs. He said he thought the size limited the potential. He said it was a very difficult project. He said he appreciated the delay and thought it was a good strategy.
Mayor Amyx said the public hearing was closed and staff understood the Commission had requested information along with conditions of the demolition permit and conditions that would eliminate harm to the structures, but also the environs.
Moved by Schauner, seconded by Hack, to entertain a motion for deferral. Motion carried unanimously.
Vice Mayor Amyx said the City Commission discussed, during their budget cycle, demolition by neglect and what type of tools the City had because currently it was complaint base.
Commissioner Highberger said he wanted to put on the record that it might not be a feasible alternative, but there were modular buildings being constructed for hurricane reconstruction in Mississippi that were structurally comparable, size comparable that were being moved out for substantially less square foot. He said he did not know if that was a feasible alternative here.