Thursday, December 29, 2011

City sued by local preservation advocate, Mike Morgan for failure to follow its own procedures and guidelines!

Photo from Auditors record
Well-known local Preservation advocate, and author Mike Morgan has filed a lawsuit against the City of Cincinnati in an effort to compel the city to follow its own legal procedures and guidelines. The lawsuit is an effort to save a property he owns that continues to deteriorate because of the city of Cincinnati failure to issue permits and approvals that would allow him to save the historic Over the Rhine property on Walnut Street

The six-count complaint has been filed against the City of Cincinnati Historic Conservation Board; Charles C Graves, director of city planning; City of Cincinnati, and the office of the Urban Conservator, Larry Harris

The suit by Mr. Morgan involves his property at 1623-1625 Walnut Street. The six-count complaint alleges:

Count 1:

SEC. 1435-13(b) CMC REQUIRES IMMEDIATE ISSUANCE OF A CERTIFICATE OF APPROPRIATENESS TO CONDUCT CONSTRUCTION WORK ON   1623-1625 WALNUT ST

Count 2:

SEC. 1435-15 CMC REQUIRES APPROVAL OF SPECIFIC ASPECTS OF THE APPLICATION FOR COA AND SEC. 1435-17 REQUIRES ISSUANCE OF A DECISION BY THE HCB

Count 3:

RESPONDENTS-DEFENDANTS HAVE KNOWINGLY AND INTENTIONALLY DENIED RELATOR-PLAINTIFF DUE PROCESS OF LAW

Count 4:

ACTIONS IN THE CASE AT BAR ARE MERELY ONE EXAMPLE OF A KNOWN AND ONGOING ABUSE OF POWER BY THE HCB, A PATTERN OF UNCONSTITUTIONALLY ARBITRARY AND CAPRICIOUS ACTS AND OMISSIONS, AND VIOLATIONS OF LAW COMMITTED BY THE OFFICE OF URBAN CONSERVATOR.

Count 5:
RESPONDENTS-DEFENDANTS REFUSE TO FULFILL AN OBLIGATION TO ENFORCE SEC. 1435-25 AND SEC. 1451-13 CMC

Count 6
THE OVER-THE-RHINE HISTORIC GUIDELINES ARE VOID FOR VAGUENESS

To overview the suit essentially alleged that the city via the Historic Conservation Board and planning department have failed to follow its own city building codes, its own set procedures regarding notifications, failed to provide proper recourse for property owners to remediate building problems and essentially resulted in further damage to their properties because they are prevented form effecting repairs that would prevent further water damage.

The suit also alleges that there is ambiguity in the ordinances and procedures and that it is part of an on-going pattern of selective enforcement and that those named including Charles Graves and city solicitors are aware of this and have failed to enforce proper procedures and the ordinances of the city as written.

Mr. Morgan, who is an attorney, has taken this action because he is essentially prevented from fixing his property and it continues to deteriorate. In a recent email conversation he stated his overall goal.

“I hope to force the HCB to function within the boundaries of the law.  They are supposed to be both restricted by and bound to honor the guidelines established for each historic district.  My lawsuit makes a challenge to one aspect of the Over-the-Rhine guidelines, but this is only an example of a much broader problem.  By making the law up as it goes along, the HCB both permits demolition of buildings that should be saved and makes appropriate redevelopment of properties unnecessarily difficult.  No property owner in this city can possess a reasonable expectation of what will or will not be permitted in a rehab until the HCB arbitrarily concocts whatever law they decide to manufacture in your particular circumstance on that particular day.  They refuse to be bound by the governing guidelines.  They refuse to create or be bound by their own precedent and, in some instances, change positions in the same case from one hearing to the next.  This does a disservice to everyone.  It makes it ridiculously -- and I believe unconstitutionally -- cumbersome to do the right thing with historic buildings, and far to easy to destroy them.”

He also pointed out that this is a “taxpayer action” filed on behalf of the citizens of this City.  Additional plaintiffs may be welcome.

Tuesday, October 11, 2011

West End: More low income or more demolitions? Time for real Preservation

The West End face's another familiar challenge. More Low income crime ridden housing or more demolitions.

At stake is a a huge chunk of West End Real Estate, specifically 1800, 1803, 1804, 1807,1809, 1813, 1817, 1819, 1901 Baymiller all up in the court of housing appeals. If those addresses sound familiar its because they are all old  Cincinnati Metropolitan Housing Authority properties that were shut down years ago because of the poor living conditions and high crime in them.  CMHA dumped these properties on the market with no protective covenants requiring restoration or Preservation, presumably to get out from under the legal problems with these properties which had gone from VBML to condemn status. Most of these properties have been 'mired' in low income housing since the 1970's

The properties were bought by "West End Renaissance Village" / CRA  (Community Revitalization Agency),which according to its website is proposing to build new "systems built" (Prefab) homes on the east side of Baymiller. According to the website:

"Community Revitalization Agency paid considerable attention to the design of the garages of the newly constructed homes.  CRA had the homes designed to provide garages entering in the front of the homes principally due to the lack of available alley entrances.  Also, community input suggested that alley entrances would present somewhat of an issue due to inner-city issues with respect to crime.  Consequently, each home will need a “curb cut” to provide adequate entry from the street".

Front facing garages would destroy the historic appearance of the West End. The historic homes will be "Rehabbed' according to the website. There are no architectural renderings of this proposal anywhere on their website

This proposed influx of 'affordable hosuing' may however come as a surprise to those along Dayton Street who have invested millions of dollars in restoring homes back to single family. Apparently no historic protections exist in that area of Baymiller.

In fact 'West End Renaissance Villages" partners are listed as: Brightstar Baptist Church, Ohio Finance Fund, Cincinnati Metropolitan Housing Authority, Whitepine Construction, All American Homes, Wichman & Gunther , the website proclaims that Renaissance Village will have  64 sites concentrated on York, Baymiller, Findley and Linn Streets  More info here:
http://www.communityrevitalizationagency.org/development/homeownership

No one seems to be able to ascertain if "West End Renaissance Village" and  the CRA , even has  the money to build this grand project. Sources tell me that there were plans to use "Hope VI" monies but given the current litigation over where previous monies were spent that seems doubtful.

In the meantime many of these properties are falling down, In fact some have orders going back 10 years and several were ordered vacated by the city . No one can explain why CMHA, funded with Federal tax dollars was 'allowed' to let these buildings fall into such disrepair in the first place not why these properties , which given their location near the Dayton Street Historic District, and have value, were essentially 'given away' by CMHA. It looks like the classic "slumlord shuffle" but with a governmentt agency and a non profit. All of this  at a time when the poor are leaving the west end for areas with more job opportunities and many of the social services churches are leaving, why there is a push to keep the West End  in stranglehold' of low income housing is a big question. Why was CMHA allowed to escape its maintence responsibilities on these properties in the first place and can CRA demonstrate it has the monies to beging immediate stabilization of these properties?

Its is also a question that property owners in the West End who have spent millions restoring their homes need to be asking now and preservationist city wide should be concerned about. What needs to happen is that these homes need historic protections and should be sold with protective covenants to people with the demonstrated funding to restore them. We must move beyond the 1960's and the idea that this area must remain a poor enclave.The West End need to be allowed to realize its full potential and be returned to the vibrant historic community it once was..

Friday, October 7, 2011

"Blight" Tours: A creative way to attract Preservation and Re-investment


A Great restoration (Photo courtesy EPNIA website)
 Generally speaking by the time most neighborhoods are holding a home tour, the "Urban Pionneers" have long moved on to other neighborhoods and the home prices have gone through the roof. One neighborhood , on its way back, is taking a different approach and "blight tours"' may soon replace the more traditional home tour.

The reasons are simple, attracting those willing to restore old houses is harder than ever before. While prices are generally down and there is a large influx of foreclosed properties , often once grand single families that have suffered the indignity of being turned into apartments, the credit markets have tightened and trying to find those willing to restore and finding resources to do the restoration have become extremely difficult.

One neighborhood in Illinois is trying a new approach of outreach to Preservation minded people and it could well become the latest tactic of emerging neighborhoods and historic preservationists who are trying to turn around a neighborhood by attracting reinvestment.

Known as "Blight Tours" or their more sanitized name "Urban Pioneer Tour"s, the Enos Park Neighborhood in Springfield Illinois is holding its "Urban Pioneer Home Tour' tommorrow (October 8th) from 1-4 PM and is offering the public an opportunity to see some of its "land banked homes', in progress homes, and see the preservation opportunities that exist in the Enos Park Neighborhood. the neighborhood group which has its own land bank and has been strategically buying property and vacant land and has amassed over 40 properties. The goal is to find those "Urban Pioneers" who want to restore and live in a great neighborhood. The group has partnered with lending institutions and other resources who will be on hand to provide information and resources. More info on the tour and Enos Park is available here:

http://www.epnia.com/events/urban-pioneer-house-tour-sat-oct-8-1-4-pm/

I find this to be a great and solid approach to attracting preservation oriented people and is similar to the small private tours I have been giving of our Knox Hill neighborhood for some time and ties into our "Preservation Opportunity Tour" that Knox Hill Neighborhood Association is planning for Spring of 2012 when we will showcase two under restoration properties and several "opportunity' homes.

Clearly with changing times and challenges presented to neighborhoods new strategies are important.

Tuesday, October 4, 2011

Historic Preservation : A criminal offense. City Council are you listening?

"Basically, they are saying homeowners are not allowed to restore their houses because it takes too long... unless they can afford a team of contractors to do the work. So they are discouraging historic preservation for anyone but the wealthy. If I had left it covered in ugly, faded 40+ yr old aluminum siding covering all the architectural character, they'd be happy.  I'm being punished for doing historic preservation of my house."

That's a quote from a lady named Nina who is facing criminal; prosecution in Lakewood Ohio for RESTORING her house. You can read the entire story on her blog:
http://1914foursquare.blogspot.com/2011/09/historic-preservation-criminal-offense.html

It must be something in the water in Ohio maybe?

Of course her problem is an everyday one for most of us restoring a house in Cincinnati. I know of one Preservationists in Cincinnati who is on house arrest and Of course we all know one highly regarded person in OTR was recently arrested and spent days in jail. Meantime a local slumlord purchased  a large number of properties at the County forfeiture sale earlier this year, placed them in his sons name and  is "patching together" a condemned house (with real structural problems) in my neighborhood with city approvals.

While other cities , in other parts of the country, encourage Historic preservation by sponsoring workshops and conferences on Preservation and "How to "  seminars and some cities are even offering 1/2 price or no cost permit fees to encourage people to buy and restore distressed foreclosures, our city plows along in the last century more intent on squeezing that last drop of blood they can out of you before you get fed up and make that one way trip across the river to Newport or Covington to restore a house, never to be seen again.

Unfortunately it happens all too often in Cincinnati. One can look across the river to Newport or Covington and see the "preservation energy" People restoring old houses , bringing back neighborhoods and improving the tax base. While we do nothing to encourage Preservation other cities move forward, I hope all those running for council or those who currently have seats on the council realize that unless the council enacts some common sense policies they will be presiding over the next Detroit, because it looks to me like those 30,000 people we lost in population all moved across the river and are restoring houses and buildings over there.

At a time when we have a great resources our historic houses, that could expand our population and thereby our tax base we , much like Lakewood Ohio are caught in downward spiral of bureaucracy.

Wednesday, September 28, 2011

Why Cincinnati Needs Historic Preservation? Jobs!

Historic preservation is a powerful economic development strategy, creating more private-sector jobs per dollar of investment than new construction. According to the federal Advisory Council on Historic Preservation, "One million dollars spent on rehabilitation, compared to the same amount spent on new construction, yields between five and nine more local construction jobs, creates 4.7 more new jobs elsewhere in the community and provides $107,000 more in community income. It also generates $34,000 more in retail sales."

Those are powerful arguments for Preservation Advocacy in Cincinnati. We clearly have the Historic Building Stock. Urban neighborhoods are increasingly the preferred location for your Professionals employed downtown and other, tired of long commutes, are being attracted to the idea of Urban Living, The biggest drawbacks to Urban living for younger people with children is schools, but CPS has embarked on reopening schools like the Old Fairmount High school as the Quebec Heights Academy and new private schools like the Roosevelt school are opening on Treemont.

The city  has also been hard hit by the foreclosure crisis with many who bought in at the height of the market who became upside down on their mortgages simply walking away. Property assessments have declined in many Urban neighborhoods with viable housing stock, While many locals may not be interested in these Neighborhoods, Cincinnati draws increasing attention from National Preservationists drawn to the area because of that architecture. Spend anytime on a preservation forum or website and Cincinnati's wealth of riches inevitably come up.

At the same time we have a serious unemployment problem. While Fortune 500 companies continue to attract top talent we have many living on assistance or in poverty, many of thoe unemployed lack the education to be competitive and manufacturing jobs have dried up due to global competition. Restoration of Cincinnati's Historic Housing stock would create valuable construction jobs. Restored neighborhoods like OTR and West End will help contribute to a heritage tourism industry  which creates retail and hospitality service jobs.

We have the Historic Housing Stock, we have the interest of people wanting to come to Cincinnati and restore, we have the workforce and we have major Corporations telling us we need viable Urban neighborhoods to attract top talent. So whats the problem?

The problem is a city leadership mired in old policy, red tape and roadblocks and a serious addiction to CDBG and NSP funds to help supplement salaries. This fosters bad policies that hinder investment in our community. The Blight=bulldozer approach of 1960 urban renewal didnt work then and its not working now. Creation of red tape, an extremely complex and costly permitting process, the VBML which prohibits one from living in house they are restoring ( which would promote safety in Urban neighborhoods as the more eyes you have the harder it is for criminal elements to operate), demolition without city acquisition or maintenance of the remaining vacant lots, all contribute to a 'hostile' environment for Preservation.

With over FIVE THOUSAND properties on the keep Vacant/condemn/nuisance list, while attractive to city managers eager to demonstrate 'need' for more federal dollars, it send the message that Cincinnati is becoming the "Next Detroit". This fact is not lost on Corporate CEO decision makers and boards  on where to locate or relocate as we are now losing companies looking for more 'attractive' metro environments.

City Inspectors, permits and the city manager want to maintain the status quo and continue with that federal funds addiction. But those funds may be going away and without a plan to change things we will become less and less competitive and our fiscal crisis will grow.

We need real leadership and vision, city government that will lead and maintain fiscal responsibilty. The answers are simple.

Eliminate the VBML Program in favor of repair based inspections like other cities, eliminate the vacant building task force and realign the department so we have  inspector who applies the building code not one for occupied, one for vacant.  Revamp city database so health inspectors, building inspectors and permits are on the same page. Establish a dedicated housing court. Streamline the permit process, offer incentives to people buying a foreclosed property who agrees to live in it. Create CRZ's (Community Reinvestment Zones) with reduced permit fees, Tax abatement for historic restoration increased to 500K. Partner with schools to offer preservation based trades training and properly fund the Urban Conservators office (or better yet, outsource it) and create an office that will advocate and market the historic resources of this city.

In short cut the red tape and roadblocks and adopt common sense strategies to attract reinvestment in our community.

Friday, September 23, 2011

Another Court Date: Gamble House stands...for now as Preservationist await hearing results

Hamilton County Court of Common Pleas Judge Robert Winkler considered oral arguments in an appeal of findings of Magistrate Michael L Bachman.

Preservationis have argued that the  demolition of the Gamble House will impact the City of Cincinnati Historic Preservation process and require modification of existing laws.

The judge is expected to render a determination within 60 days

Monday, September 12, 2011

MSD Lick Run 'Daylighting' Plan may have serious problems with Eminent Domain precedents set in Norwood.

MSD, the city of Cincinnati, and county commissioners could face legal hurdles if it resorts to use of eminent domain to acquire parcels for the “daylighting” of Lick Run  as a remedy as somel property owners have now indicated they will not sell..

Recent court decisions  City of Norwood v Horney et all,  has determined that there is a higher standard applied than demolition for development sake and elimination of ‘blight’.

The Institute of Justice effectively argued that case and based on those argument the court held that:

It is unconstitutional to take property through the exercise of eminent domain to obtain a financial or economic benefit alone. Thus, taking property solely for economic development purposes does not satisfy the public-use requirements of Section 19, Article 1 of the Ohio Constitution. This decision sets Ohio apart from the U.S. Supreme Court’s decision in Kelo which ruled that under the U.S. Constitution economic development is a valid public purpose for which private property can be taken.

Statutes that give appropriating entities the right to take property based on the standard that is in a “deteriorating area” are unconstitutional. The term “deteriorating area” is void for vagueness because it does not give property owners fair notice of the standard for taking property. The term also imper-missibly incorporates speculation about the future condition of the property, rather than basing the appropriation on the condition of the property at the time of the taking. Eliminating a “deteriorating area” does not satisfy the public use requirements of Section 19, Article 1 of the Ohio Constitution.

Courts in Ohio will apply a heightened scrutiny and will not simply yield to the discretion of legislative bodies when reviewing statutes and ordinances that regulate the use of eminent domain powers. The actions of legislative bodies will be afforded some deference, but courts will be the final arbiters of whether those actions satisfy proper public purpose requirements.

A court can enjoin or stop the appropriating entity from taking and using the property appropriated during the pendency of an appeal.

How will those arguments potentially play out for MSD,the city, and the county in an eminent domain suit?  Well for one the Mayor, various representative of MSD and the county and even certain EPA representative have all ‘touted’ the use of this “daylighting” of Lick Run for redevelopment in the area. They have rolled out nice drawings showing how they intend to attract developers to the area and how some acquired property for the project will be ‘redeveloped’ by presumably private developers.  It shows as “new construction” in their drawings.

That is problematic for the parties involved, given the court in the Norwood case determined

“It is unconstitutional to take property through the exercise of eminent domain to obtain a financial or economic benefit alone. Thus, taking property solely for economic development purposes does not satisfy the public-use requirements of Section 19, Article 1 of the Ohio Constitution.”

The legal question become: Does the  ‘daylighting’ of a creek constitute a public use. Now MSD could argue that the ‘daylighting’ is part of a ‘park development”. However there are several parks within Fairmount already that provide ample recreational opportunity. In fact the city has recreation facility on Queen City already. So the argument that this is an essential taking has problems. It is not essential as adequate facilities currently exist. Their other problem is they have identified it as part of a revitilization plan.

So the next logical argument will be that the daylighting is ‘necessary’ for the city to meet EPA requirements. However EPA has already determined that the ‘deep tunnel’ provides the necessary avenue to meet the EPA mandate. So the “daylighting’ of the waterway is not NECESARY to meet federal mandate it is just inconvenient and more costly for MSD to do so.  So the question would become, should private property rights prevail regarding the “taking’ of the property for this “purpose/mandate” which can be achieved by other avenues.

This leaves MSD/city/county with the “blight” argument and that Fairmount is a “deteriorating area” but that is even more problematic. This is similar to that argument used by Norwood and they will no doubt argue that South Fairmount is a “deteriorating area”.

However in the Norwood case the court determined that:

 ‘The use of  “deteriorating area” as a standard for determining whether private property is subject for appropriation is void for vagueness. further “ The use of deteriorating area as a standard for the taking is unconstitutional because the term inherently incorporates speculation as to the future condition of a property at the time of the taking”

In fact many would argue it is city policy such as abuse of VBML by city inspection, condemn orders and demolition that drove down property value “perhaps’ in anticipation of eminent domain, but that will likely play out as a separate legal action against the city.

There is already the debate on if South Fairmount may already be turning around. Significant restoration investment in the V&S buildings, several home restorations in the area (along Westwood and Queen City) has happening. The reopening of the old high school on White as Quebec Academy by CPS, the newly restored Roosevelt  K-12 school on Treemont. The millions of on-going investment in Knox Hill and its planned National Registry nomination, all point to a neighborhood coming back, not deteriorating, IN SPITE of city policies and implementation designed to hold those areas back.

Of course MSD has spent huge sums buying property in “anticipation” of this project but the acquisition at this point seems VERY premature and not a good use of taxpayer funds. Despite the city's history of back room deals , those deals may not help in a court of law.

More information about the Norwood case can be found here:

Norwood Decision