The decision by Rochester City Council members to introduce an amended historic preservation ordinance is a decision we support and encourage all council members to finalize this month when it comes before them for a second reading.
First off, we should start by saying that we find it not only odd, but disheartening that the city – the oldest in Oakland County and one that has prided itself on its historical character, as illustrated by the current year-long bicentennial event – waited so long to pass an ordinance that protects the very heritage it claims to celebrate. While younger cities in the county enacted measures decades ago to protect their foundations, it wasn't until 2014 that Rochester put such an ordinance in place.
When city council in 2014 finally did get around to taking up an historic preservation ordinance, it did so with what we feel was an overly soft-step that lacked the teeth that Michigan's Local Historic Districts Act provided. The city's original ordinance (and still current in effect as of press time) split from the state's ordinance in two key areas: It provided property owners the ability to "opt in" to an historic district by petitioning the city to designate their property as an historic resource, and some believed it allowed owners to "opt out."
While both the state law and city's original ordinance require the city to form an historic district committee to study properties to be included in an historic district, Rochester's ordinance allowed for property owners to voluntarily choose to be included in an historic district.
The second caveat included in the city's historic district ordinance is the designation of "landmark" properties, those the committee deem to have greater historical significance to the city and requiring the greatest amount of preservation. Those designated as landmark properties need approval from city council prior to any changes that would significantly alter the historical character of the property. However, this designation is, in fact, the key intent of the state's Historic District's Act.
The two different designations in the city's ordinance allowed the city to monitor those landmark homes without including them in an historic district, and may have been intended to appeal to property owners who didn't voluntarily want their properties to be included in an historic district. But, in practice, it simply appeared to confuse council members who may believe Rochester's ordinance was more lenient for property owners who didn't want to be included in an historic district because it could potentially limit them in what they may do with their own property.
Some council members also appeared to believe, incorrectly, that the city's ordinance provided property owners with an "opt-out clause." Not only is such a claim not accurate, it is in direct violation of the state's Local Historic Districts Act, which specifically does not permit ordinances with such clauses. As stated in a published Michigan Attorney General's Opinion in 1996, "a local unit of government may not enact an ordinance that restricts that unit from placing property in a local historic district without the consent of the property owner."
Further, the city's own ordinance specifically requires objections by property owners to be removed from an historic district be made on grounds that the property isn't historically significant or has less historic value than deemed by the committee. However, council members diverged from their own watered-down ordinance in March when the majority of council members agreed it wouldn't include one residential home on its list of landmark properties. That decision was made, not on an appeal of historic value of the home, but a perceived hardship to the property owner.
In ignoring its own ordinance, some on council felt the existing ordinance may open the city up to litigation from others in historic districts or landmark designations who objected to their property's inclusion. Additionally, the action set a precedent that historic district designations could be decided by property owners objections, rather than by the municipality – a direct conflict with the state's law.
By reverting to an ordinance that mimic's the state's law, the city not only ensures that it's protected against litigation, but also sets up a clear system that directs the city in how historic preservation will proceed in the future.
Council members expected to vote on whether to finalize an amended historic preservation ordinance in the future should be acutely aware of the tools they must use to preserve the historic character of their community, as well as those limitations.
As for property owners' concerns that a historic designation could hamstring them in the future or present a financial hardship, council members would be wise to build trust with those residents. After all, it is the council who will decide what level of historic preservation is appropriate on a case-by-case basis. But they must always remember preservation of the community is the overriding goal.