TO: Mayor and Members of City Council
THRU: Kelly Olivera - Assitant City Manager
Dr. Gerald Newton, AICP - Development Services Director
FROM: Will Deaton, AICP - Planning and Zoning Division Manager
Lauren Long, Planner II
DATE: May 22, 2023
RE:
Title
TA23-020-025: Proposed Text Amendment to UDO 30-2.C.8 Certificate of Appropriateness; 30-2.A.7.a Powers and Duties of the Historic Resources Commission; 30-2.C.22 Standards and Requirements for Local Landmark Designation; 30-1-9 Unified Development Ordinance; 2-41.A-F Historic Resources Commission.
end
COUNCIL DISTRICT(S):
Council District(s)
All
Relationship To Strategic Plan:
Strategic Operating Plan FY 2022
Goals 2027
Goal 4: The City of Fayetteville will be a highly desirable place to live, work, and recreate
• Objective 4.2 - To enhance diverse recreation, leisure, and cultural opportunities
Goal 6: The City of Fayetteville will continue to have a collaborative citizen and business engagement base
• Objective 6.2 - To ensure trust and confidence in City government through transparency and high-quality customer service
Executive Summary:
The proposed text amendments are to update the enabling legislation for the Historic Resources Commission (HRC), remove the procedure enabling the inclusion of local landmarks in the Historic/Landmark Overlay (HLO) district, re-name the HLO, as well as realign the powers and authority of the HRC and the applicability of a Certificate of Appropriateness.
The Planning Commission held a legislative hearing on April 18, 2023. No speakers were in favor or against the proposed text amendments. The Planning Commission voted unanimously to recommend approval of the proposed text amendments (6-0)
Background:
In 2010, when the Unified Development Ordinance (UDO) was adopted, several changes were made to the powers and authority of the HRC as well as to the local landmark designation procedure. These changes resulted from the transition of the Historic District Overlay, an overlay that existed prior to the UDO, to a new zoning overlay district designated as the Historic/Landmark Overlay District (HLO). The intent of this new district was to organize all of the City’s historic resources under one zoning overlay, where the powers of the HRC and the Design Guidelines would be broadly applicable in the same way that development standards can be tied to base zoning and overlay districts.
Prior to the adoption of the UDO, only the local historic districts had ever been adopted into the Historic District Overlay and landmarks were only recognized by the ordinance with which they were originally designated. Although the intent was to organize everything under the new overlay, when the HLO was created no map amendment was initiated to include the landmarks within the new overlay. This meant that only the two local historic districts transferred to the new overlay when the UDO was adopted. This led to a disconnect between the authority of the HRC to exercise its power over local landmarks because the parameters of the authority vested in the HRC are tied to the HLO. The powers of the HRC as defined by UDO 30-2.A.7.a. 1-9, Historic Resources Commission, Powers and Duties are to:
1. Review and decide applications for Certificate of Appropriateness;
2. Review and provide recommendations to the Zoning Commission, and the City Council on Map Amendments that establish or change the boundaries of a Historic/Landmark Overlay District;
3. Review and provide recommendations to the Planning Commission and City Council on Text Amendments that involve the Historic/Landmark Overlay District, Certificate of Appropriateness, or other provisions directly related to Historic Preservation.
4. Inventory properties of historical, pre-historical, architectural, or cultural significance;
5. Investigate and prepare a report describing the proposed boundaries of any area recommended for designation as a historic district <https://online.encodeplus.com/regs/fayetteville-nc/doc-view.aspx?pn=0&ajax=0&secid=10811> and the significance of the proposed district and the buildings, structures, features, sites, or surroundings included in it;
6. Review and make findings on the significance of individual structures, buildings, sites, areas, or objects recommended for designation as a landmark;
7. Prepare and recommend adoption of preservation goals, objectives, policies, and strategies as part of the City's comprehensive planning efforts;
8. Recommend City acquisition of properties within established historic districts or designated landmarks as necessary to promote their preservation; and
9. Provide assistance, guidance, or technical advice to property owners concerning restoration and the preservation of architectural features on historic structures.
According to the adopted language, the authority of the HRC to regulate any historic resources is tied to their inclusion in the HLO. This is further reinforced by the language addressing applicability for a Certificate of Appropriateness. UDO 30-2.C.8.b.1.a, Applicability for a Certificate of Appropriateness, states: “Unless otherwise exempted” ...” no exterior portion of any building or other structure, including masonry walls, fences, light fixtures, steps and pavement, other appurtenant features, any above ground utility structure, or any type of outdoor advertising sign shall be erected, altered, restored, moved or demolished on designated landmark historic structures or other historic structures within the Historic/Landmark Overlay District...”. Based on the existing language, a COA is only applicable if the building, structure, or site is located within the HLO.
If a map amendment was never initiated to include the existing local landmarks in the HLO, then the HRC does not have authority over the structures, buildings, or sites that have been locally designated as landmarks. Additionally, outside of not having an assigned review body, the requirement to obtain a COA for any exterior modifications is not applicable to any of the landmarks.
Issues/Analysis:
The intent of the HRC is to provide for the preservation of historical, cultural, or archaeological resources within its jurisdiction on behalf of the City Council. This can be through technical review, educational campaigns, etc. A Certified Local Government (CLG) is a municipality that has demonstrated, through a certification process, their commitment to historic preservation at the local level. CLG status is awarded and certified by the State Historic Preservation Office (SHPO). Through CLG status, a certified municipality can obtain access to federal grants and technical assistance from SHPO. In 1999, the City of Fayetteville entered into an agreement with SHPO to obtain these benefits by agreeing to maintain a preservation commission that met the standards and requirements of a CLG.
The current language in the UDO as it concerns the authority and powers of HRC as well as the applicability of a COA is a “loophole” that has left the Historic Resources Commission in breach of its CLG agreement. This agreement states that the CLG will adhere to all requirements outlined in the Guidelines for North Carolina’s Certified Local Government Program, see attached agreement. The CLG Guidelines, also attached, outline the requirement to “...establish a review process for proposed alterations, restoration, new construction, demolition, or moving within the boundaries of locally designated historic districts or on locally designated historic landmarks...” as well as the requirement to “...establish a preservation commission which shall have the authority to review and render a binding decision on proposed alterations...”. The current authority designated to the HRC, does not allow the commission to comply with the requirements of a CLG designated commission and the applicability section for a COA does not properly regulate the required review process to maintain the landmarks within the period of significance for which they were originally designated. Although municipalities with preservation commissions are not required to designate local landmarks, if they are designated, they must be regulated. It is worth noting that a municipality without a preservation commission is not enabled by the North Carolina General Statutes (NCGS) to designate local landmarks by ordinance. This is because, under NCGS 105-278, local landmarks can receive up to 50% property tax deferment through the county tax office for maintenance and preservation. This deferment is reviewed by the County on an annual basis and requires that the HRC review all exterior changes through the review of a COA to keep the landmark within the period of significance for which it was originally designated.
If local landmarks are not brought back under the authority of HRC, the commission and the city may risk losing its CLG status and access to the resources that CLG designation brings. Additionally, if exterior modifications to local landmarks are not being regulated by the commission, the tax deferment that is currently being received by those property owners may be at risk. If a local landmark loses its tax deferment status, due to the loss of its significance, the property owner must pay up to three years in back taxes.
Although local landmarks must be brought back under the authority of HRC to comply with the CLG agreement and to comply with the state’s enabling legislation for local landmark tax deferments, the current design to include local landmarks within the HLO is also contributing to procedural complications. The inclusion of local landmarks within the HLO is adding additional review and public forum to the landmark designation procedure that is already covered under the required review (as enabled by NCGS 160D-946) by the Historic Resources Commission, the State Historic Preservation Office, and finally the City Council. All local landmarks, in order to receive local landmark designation, are reviewed by the HRC for significance. The HRC then produces a report detailing what it determines to be of significance. That report is forwarded to SHPO. The State has 30 days to produce comments based on that report. At the end of those 30 days, or before if comments are received prior to the deadline, the comments and original report are then reforwarded back to the commission and a public hearing is set to consider designation. A public hearing is required by both the HRC and City Council but they retain the option to hold a joint designation hearing.
Adding the additional requirement that a map amendment also be included in the process of local landmark designation in accordance with 30-2.C.1 is an unnecessary expansion of review. It is not required by the State and increases the burden of designation by expanding the public notification requirement. The UDO public notification requirement for a legislative hearing considering a map amendment includes mailed notice within a 1000’ radius of the identified parcel (s). Requiring local landmarks to also undergo a map amendment expands the public notification requirements to include mailed notice, which would not otherwise be required of the local landmark designation procedure, as enabled by NCGS 160D-601.It also extends the petitioner’s review timeline as the same petition must then be reviewed by the Historic Resources Commission, the State Historic Preservation Office, the Zoning Commission, and the City Council.
Local landmarks can still be regulated outside of their inclusion in the HLO. If they are specifically identified under the powers and authority of HRC and the applicability of a Certificate of Appropriateness is expanded to include local landmarks this would bring the HRC back in compliance with the CLG Guidelines and local landmarks back under their purview. A text amendment is required to the attached sections in order to bring them into conformance with the CLG guidelines and eliminate the requirement for a map amendment as part of local landmark designation.
Budget Impact:
N/A
Options:
1. Move to approve the proposed text amendments. (Recommended);
3. Remand the proposed text amendment back to staff for further consideration and specific changes.
Recommended Action:
Professional Planning Staff recommends option (1), the approval of the proposed text amendments to the Unified Development Ordinance and the Code of Ordinances.
Attachments:
1. Certified Local Government Agreement
2. Certified Local Government Guidelines
3. Draft Ordinance: 30-2.C.8 Certificate of Appropriateness
4. Draft Ordinance: 30-2.A.7.a Powers and Duties of the Historic Resources Commission
5. Draft Ordinance: 30-2.C.22 Standards and Requirements for Local Landmark Designation
6. Draft Ordinance: 30-1-9 Unified Development Ordinance;
7. Draft Ordinance: 2-41.A-F Historic Resources Commission.
8. Draft Ordinance: 30-3.H.3, Historic Landmark Overlay
9. Consistency Statements