CITY OF PENDLETON
REQUEST FOR CITY COUNCIL ACTION
Date Submitted:
September 9, 2013
Date Action Requested:
September 17, 2013 - Second
Reading and consideration
Type of Action Requested:
Resolution
X Ordinance 3839
Formal Action/Motion
Other
TO:
Mayor and City Council
FROM:
Evan MacKenzie, City Planner
RECOMMENDATION:
Second Reading, Consideration and Adoption
Subject: Legislative amendments Adoption of Periodic Review
amendments to Zoning Ordinance for
Historic Preservation.
SUPPLEMENTAL REPORT
September 17, 2013
DISCUSSION: At the September 3 Council meeting, staff was asked to provide the Council with a
record of the changes made to the proposed language for Historic Preservation. Rather than provide
Council with several full versions of the ordinance, staff has excerpted the language relating to
removal of properties from the ordinance.
The language below is the original language from the “model ordinance” provided by the State
Historic Preservation Office (SHPO). This language was unaltered by the committee that worked
with staff to bring the model ordinance in line with local needs.
Language in original model ordinance provided by SHPO
Section 12: Removal of Landmarks from the Local Landmark Register. A public hearing
before the Commission and a signed Certificate of Appropriateness shall be required to remove a
Landmark from the Local Landmark Register.
A. Landmarks concurrently listed in the Local Landmark Register and National Register will be
considered for removal from the Local Landmark Register only after the Landmark is removed
from the National Register and the SHPO has provided written evidence of the removal to the
Historic Preservation Officer.
B. Any individual or group, including the Commission acting on its own initiative, may initiate the
removal of a Landmark or individual property within a historic district from the Local Landmark
Register by submitting a complete application to the Historic Preservation Officer.
C. The Historic Preservation Officer shall establish standards for a complete application for the
removal of a Landmark from the Local Landmark Register. Upon acceptance of a complete
application, the Historic Preservation Officer shall schedule a public hearing pursuant to
applicable local and state laws.
D. In order to approve an application for the removal of a Landmark from the Local
Landmark Register the Commission must find the following:
1. The Landmark has ceased to meet the criteria for listing in the Local Landmark Register
because the qualities which caused it to be originally listed have been lost or destroyed;
and/or
2. The property owner at the time the property was added to the Local Landmark Register did
not provide written permission for such action as required under Section 10.
Request for City Council Action – September 17, 2013
Ordinance 3839, Zoning Ordinance Amendments – Historic Preservation
Page 2
E. Landmarks accidentally destroyed by natural or accidental act or demolished under the
provisions of Section 11 and meeting the definition of “demolished” as defined in this
Ordinance may be removed administratively from the Local Landmark Register by the Historic
Preservation Officer. Notice of this action and written evidence documenting the demolition of
the Landmark shall be provided to the Commission at their next regular meeting. This same
documentation shall be provided to the SHPO. If a Landmark is also listed in the National
Register, the Commission shall request that the SHPO remove the property from the National
Register if not requiring the owner to do so under Section 11.E.3.
Over the course of five Planning Commission meetings, there was extensive discussion regarding
the ability of property owners to remove properties from the Historic Resource Inventory. A local
citizen requested the ordinance be amended to allow property owners to remove their property from
the inventory at any time, without any specific approval criteria for removal.
The Planner and City Attorney researched the issue with other Planners and municipal attorneys in
Oregon, SHPO, and DLCD staff. All of the research pointed to ORS 197.772, and specifically the
meaning of “imposed.”
The definition of “imposed” is clear. It means a property was placed on a historic inventory over the
documented objections of the property owner during the designation process. If a property owner
objected to designation during the process, and the property was put on an inventory over those
objections, it was imposed. If a property owner did not object during the designation process, it was
not imposed because the owner had the opportunity to object but didn’t.
Staff research included looking at many other cities’ preservation ordinances, including what
provisions they included for removal of a property from a historic inventory. No other jurisdiction
has a provision allowing removal from a historic inventory at will. The City of Corvallis has a wellknown historic preservation program, and regularly updates their ordinances for consistency with
State and case law. For this reason, staff recommended certain amendments to the draft ordinance
to clarify the meaning and intent of ORS 197.772 based on language used by Corvallis.
Language suggested by staff, based on language in the City of Corvallis Development Code
D. In order to approve an application for the removal of a Landmark from the Local Landmark
Register the Historic Preservation Commission must find the following:
1. The Landmark has ceased to meet the criteria for listing in the Local Landmark Register
because the qualities which caused it to be originally listed have been lost or destroyed;
and/or
2. The property owner at the time the property was added to the Local Landmark Register did
not provide written permission for such action as required under Section 178.D.
2. All of the following are true:
a. The property was placed on the Historic Resource Inventory before September 9, 1995
through a legislative action initiated by the City under circumstances outlined in ORS
197.772(3), as amended; and
b. The applicant requesting the removal of the Historic Preservation Inventory was the
owner of the property at the time the property was listed and has continued to own said
property since this listing; and
c. The applicant requesting removal from the Historic Preservation Inventory presented
written or documented oral testimony in opposition to the property's being listed in the
Local Register during the public hearing at which the property was so listed.
Request for City Council Action – September 17, 2013
Ordinance 3839, Zoning Ordinance Amendments – Historic Preservation
Page 3
At the August 1 Planning Commission meeting, the Commission recommended further
amendments to Section 180.D. Notable among those amendments was removal of the word “and”
from subsection D.2., and replacement with “or.” As noted in the previous staff report from August
23, staff has concerns that the current draft creates the impression that the written consent
requirement for inclusion on an inventory that was created in 1995 may be applied retroactively.
Language recommended by the Planning Commission
Section 180: Removal of Landmarks from the Local Landmark Register.
A public hearing before the Historic Preservation Commission and a signed Certificate of
Appropriateness shall be required to remove a Landmark from the Local Landmark Register.
A. Landmarks concurrently listed in the Local Landmark Register and National Register will be
considered for removal from the Local Landmark Register only after the Landmark is removed
from the National Register and the SHPO has provided written evidence of the removal to the
Historic Preservation Officer.
B. Any individual or group, including the Historic Preservation Commission acting on its own
initiative, may initiate the removal of a Landmark or individual property within a historic district
from the Local Landmark Register by submitting a complete application to the Historic
Preservation Officer.
C. The Historic Preservation Officer shall establish standards for a complete application for the
removal of a Landmark from the Local Landmark Register. Upon acceptance of a complete
application, the Historic Preservation Officer shall schedule a public hearing pursuant to
applicable local and state laws.
D. In order to approve an application for the removal of a Landmark from the Local Landmark
Register the Historic Preservation Commission must find the following:
1. The Landmark has ceased to meet the criteria for listing in the Local Landmark Register
because the qualities which caused it to be originally listed have been lost or destroyed; or
2. The property was placed on the Historic Resource Inventory before September 9, 1995
through a legislative action initiated by the City under circumstances outlined in ORS
197.772, as amended; or
3. The applicant requesting removal from the Historic Preservation Inventory presented
written or documented oral testimony in opposition to the property's being listed in the
Local Register during the public hearing at which the property was so listed.
For reference, staff has included the ORS language that stipulates the conditions that must apply in
order to be removed from a historic resource inventory below. Staff must remind the Council, as
well as the public, that the purpose of a historic resource inventory is to preserve historically
significant properties as long as they remain viable; not simply as long as they are occupied by the
owner at the time they were placed on the inventory.
ORS Chapter 197 — Comprehensive Land Use Planning Coordination
197.772 Consent for designation as historic property.
(1) Notwithstanding any other provision of law, a local government shall allow a property owner to refuse to consent to
any form of historic property designation at any point during the designation process. Such refusal to consent shall
remove the property from any form of consideration for historic property designation under ORS 358.480 to 358.545
or other law except for consideration or nomination to the National Register of Historic Places pursuant to the National
Historic Preservation Act of 1966, as amended (16 U.S.C. 470 et seq.).
(2) No permit for the demolition or modification of property removed from consideration for historic property designation
under subsection (1) of this section shall be issued during the 120-day period following the date of the property
owner’s refusal to consent.
(3) A local government shall allow a property owner to remove from the property a historic property designation that was
imposed on the property by the local government. [1995 c.693 §21; 2001 c.540 §19]
Request for City Council Action – September 17, 2013
Ordinance 3839, Zoning Ordinance Amendments – Historic Preservation
Page 4
197.772 can be applied retroactively if a property owner objected and was listed over those
objections. 197.772 cannot be applied retroactively to require written consent for designation prior
to 1995, when no such requirement existed.
FISCAL IMPACT: As noted previously, inclusion of a provision allowing a property owner to
remove a property from the inventory at will is not consistent with Goal 5 and would likely be
remanded by DLCD. The fiscal impact of such a remand is a significant delay in acknowledgment
due to the time and expense of additional hearings before the Planning Commission and Council to
adopt an ordinance that is consistent with Statute and Rule.
ALTERNATIVES: Consider adoption of the request on September 17, 2013.
Prepared by:
Concurrence:
Evan MacKenzie, City Planner
Robb Corbett, City Manager
Reviewed by:
Nancy Kerns, City Attorney