, Muskogee, OK

January 29, 2013

Preservation rule changes approved

Revision begun after dispute over permit for razing of Kress Building

By D.E. Smoot
Phoenix Staff Writer

— City councilors approved a revised ordinance Monday that clarifies procedures that historic preservation commissioners use to determine whether the demolition of certain structures is appropriate.

Commissioners recommended this month the revisions to the amended ordinance that deals with buildings that may have some historical significance. The revisions addressed concerns expressed in December by city councilors, who rejected an earlier version of the amended ordinance.

Councilors’ primary concerns centered on the potential financial burden for property owners relying on economic feasibility to prove the necessity for demolition. Another concern was based on proposed rules that would have prohibited applicants from presenting new evidence during an appeals hearing.

City Attorney Roy Tucker said the recommended revisions attempt to balance councilors’ concerns with commissioners’ duties. That balancing act proved productive, as councilors unanimously approved the second round of revisions.

“What this (first part) does is it no longer restricts the evidence that may be considered, it opens it up,” Tucker said, noting that it also validates the commission’s authority and better defines its duties.

Tucker began drafting the ordinance after the Historic Preservation Commission denied a certificate of appropriateness needed for a demolition permit to be issued to the owner of the former S.H. Kress Building. City councilors overturned the commissioners’ decision, saying they failed to consider the economic feasibility of saving the structure.

The council’s decision sparked a debate about the role of the Historic Preservation Commission and the evidence its members could consider. Most city councilors said economic feasibility of restoration, if it is proven to be a deterrent, should trump historical preservation.

The amended ordinance includes less stringent language that would “strongly encourage” the production of a professional report for commissioners to consider during a hearing. An earlier version would have made it mandatory.

The new guidelines also provide commissioners the authority to consider all evidence before city councilors rule on a decision that is being appealed. If an appellant submits new evidence during an appeals hearing, city councilors will be required to “return the application” for a certificate of appropriateness “to the Historic Preservation Commission for further consideration” within five days or as soon as practicable.

Besides requiring commissioners to include economic feasibility in its equation for certifying the appropriateness of an application for restoration or demolition, the amended ordinance imposes new duties for property owners. In the case of a demolition permit, applicants would be required to present “documentary evidence” that “tends to establish” at least one of three things:

• The structure contributes nothing to the integrity of the historical district, and demolition would have no adverse effect.

• The structure poses an imminent threat to public health and safety, and demolition would remove the threat.

• The structure has no viable economic use.

An owner of a building eyed for demolition would have to provide documentary evidence sufficient to prove any one of those factors. Evidence could include reports from structural engineers or other professionals or detailed affidavits submitted by an owner.

Ward III Councilor Randy Howard asked administrators to study ways to prevent investors from buying up buildings that may have some historical value and “sitting on that property” until it deteriorates to a point it cannot be salvaged or restored. Howard also argued for the need for increased inspections of vacant buildings.

City Manager Greg Buckley said some municipalities have moved toward a system that would require owners of vacant buildings to obtain permits periodically. Buckley said he would bring various options for councilors to consider soon.

Reach D.E. Smoot at (918) 684-2901 or