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.


  1. I am a housing director of a low-income neighborhood in Minneapolis. Our local governmental development arm is also using NSP funds as a free license to tear down anything and everything they possibly can. I would be very interested in how this issue turns out for you, and I'd like to know more about how I might be able to implement similar strategies in my community.

    Jeff Skrenes

  2. If your city is using Federal funds to demo property they MUST have a section 106 review process. Meaning property over 50 years old must be determined if it has historic eligibility. You should contact your state Preservation office if they do not AND you might consider the filing of a 'citizens complaint' with HUD as well. Cities must follow federal law.