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

Thursday, September 8, 2011

City could face legal challenges over past demolition policies

Preservationists, concerns about an attempt by a city contractor to pull a demo permit prior to a 106 review hearing, and an admission by a city official, in an email exchange, may have opened the way for a potential legal problems for the city regarding prior demolitions performed by the Cincinnati Department of Community Development with the use of federal funds.

The issue arose regarding the attempt by Wayne Contracting to pull a demolition permit on 940 Summit Ave in Price Hill, the building had been put out to bid but the city had not issued a notice to proceed. A local preservationist who has been monitoring the pulling of permits noticed this. The actual hearing to determine Historic eligibility under Section 106 review is not scheduled until September 19th. This property is, in the belief of many historic preservationists, significant due to its rare shingle style and the fact it was originally owned by a locally prominent individual. Both factors could make it eligible under for historic eligibility.

After I learned of this issue and in order to clarify the status of the permit and the property I contacted Edward Cunningham, the division Manager of the Cincinnati Department of Community Development for the City Property Maintenance Code enforcement Division to inquire as to why a demo permit had been pulled on this property, PRIOR, to a nuisance hearing due to my concern that the city might be engaging in “anticipatory demolitions” prior to the Federal mandated Section 106 reviews taking place. As part of my inquiry Mr. Cunningham made the following statements:


“As I mentioned, we checked with the urban conservator before putting the subject out to bid and it was not listed in the City Historic inventory as eligible. This building was put out to bid prior to City Council passing the ordinance requiring the Urban Conservator to hold public
hearings to determine eligibility.”

He further stated:

“If such a building is eventually determined to  be historic it is also possible to repair it where reasonable under the recent code changes.”

At question is if the City’s previous means of evaluating historic significance – which was apparently limited to consulting its own Historic Inventory – did not constitute the “good faith effort” required by 36 CFR Section 800.4(b)(1).  

That question could be determined in Federal Court if property owners whose property was demolished prior to the city’s new policy change of public notice of 106 hearings prior to the use of Federal Funds decide to sue the city.

The legal question is: Did the city, prior to the policy change, deny due legal process by only consulting a historic building inventory and did the failure of the Urban Conservators office to make attempts to access the public for comment, deny a property owners a legal process in which they might have proved their property did meet historic eligibility and avoided an “Illegal taking” (demolition) of property by the city.

Under that scenario, that a property is determined historic eligible, the city would have been legally required by federal law to explore other options that would have included stabilization of a structure rather than demolition. While a property owner would have had a lien placed against a property for the repairs, they would have still owned a property with greater value than a vacant lot without a house, and might have had an opportunity to sell the stabilized property, pay the city for the stabilization costs (lien) and recoup their original costs on the property.

This recent change in Section 106 review policy by the council, many believe was the result of the Knox Hill Neighborhood Association which filed a citizens complaint with the department of Housing and Urban Development in 2009, regarding Section 106 compliance and the fact the city was only relying on the nuisance hearing as an opportunity for citizens to be heard regarding significance of property as potentially historic.

However, if appears, based on Mr. Cunningham’s statement, that the city has, in the past, primarily relied on if the property was on the Historic Building Inventory as a determining factor of it met eligibility. Based on that it would appear the city has not, in the past, made the good faith requirement to access the public on if a structure may have historic significance as required under Federal Section 106 guidelines.

Those Historic Building Inventories were began in 1978 and many have not been sufficiently updated. Most preservationists feel that they are inadequate as the inventories were cursory, at best, given the huge number of old properties in the city and without any historic research. The fact they some were done in back in 1978 means that many properties at that time were not 50 years old and may have been overlooked for eligibility. For example, many modern style ‘mid century’ structures would not have been even considered for eligibility as they were not yet 50 years old. Local preservationists and neighborhood groups are currently conducting surveys (mostly on the Westside) to update those historic building inventories to make sure they are up to date and many previously overlooked properties are on the inventory.

This could also mean that all the properties currently on the city nuisance list will need to be re-evaluated by the Urban Conservators office.

The reason the public is to be engaged under the section 106 review process is that members of the public may have information, say regarding a house history or historical events that took place there that could make the property historic eligible, that the Urban Conservator Office may not be aware of. Historic Eligibility would not mean a property could not be demolished but that the city must explore other options when Federal funds are used.

The city has demolished hundreds of properties with the use of federal funding (CDBG and NSP) which is regulated by the Section 106 process requirement.

One property owner I spoke to yesterday, whose property was demoed with federal funds, upon learning of this indicated they planned on seeking legal counsel on the matter.