(a) Purpose. The purpose of this section is to promote the public health, safety and general welfare, and:
(1) to protect, enhance and perpetuate places and areas which represent distinctive and important elements of the city’s historical, cultural, social, economic, archeological, paleontological, ethnic, political and architectural history;
(2) to strengthen the economy of the city;
(3) to increase public knowledge and appreciation of the city’s historic past and unique sense of place;
(4) to foster civic and neighborhood pride and a sense of identity;
(5) to promote the enjoyment and use of historic resources by the people of the city;
(6) to preserve diverse architectural styles, patterns of development, and design preferences reflecting phases of the city’s history;
(7) to create a more livable urban environment;
(8) to enhance property values;
(9) to provide financial incentives for preservation;
(10) to protect and enhance the city’s attraction to tourists and visitors;
(11) to resolve conflicts between the preservation of historic resources and alternative land uses;
(12) to integrate historic preservation into public and private land use planning;
(13) to conserve valuable resources through use of the existing building environment;
(14) to stabilize neighborhoods;
(15) to increase public awareness of the benefits of historic preservation;
(16) to maintain a harmony between new and historic structures so that they will be compatible in scale, form, color, proportion, texture and material; and
(17) to encourage public participation in identifying and preserving historic resources.
(b) Establishment of historic overlay districts. A historic overlay district may be established to preserve places and areas of historical, cultural, or architectural importance and significance if the place or area has three or more of the following characteristics:
(1) History, heritage and culture: Represents the historical development, ethnic heritage or cultural characteristics of the city, state, or country.
(2) Historic event: Location as or association with the site of a significant historic event.
(3) Significant persons: Identification with a person or persons who significantly contributed to the culture and development of the city, state, or country.
(4) Architecture: Embodiment of distinguishing characteristics of an architectural style, landscape design, method of construction, exceptional craftsmanship, architectural innovation, or contains details which represent folk or ethnic art.
(5) Architect or master builder: Represents the work of an architect, designer or master builder whose individual work has influenced the development of the city, state, or country.
(6) Historic context: Relationship to other distinctive buildings, sites, or areas which are eligible for preservation based on historic, cultural, or architectural characteristics.
(7) Unique visual feature: Unique location of singular physical characteristics representing an established and familiar visual feature of a neighborhood, community or the city that is a source of pride or cultural significance.
(8) Archaeological: Archaeological or paleontological value in that it has produced or can be expected to produce data affecting theories of historic or prehistoric interest.
(9) National and state recognition: Eligible for or designated as a National Historic Landmark, Recorded Texas Historic Landmark, State Archeological Landmark, American Civil Engineering Landmark, or eligible for inclusion in the National Register of Historic Places.
(10) Historic education: Represents an era of architectural, social, or economic history that allows an understanding of how the place or area was used by past generations.
(c) Historic designation procedure and predesignation moratorium.
(1) Purpose. Temporary preservation of the status quo upon initiation of the historic designation procedure is necessary to allow time to evaluate each proposed historic overlay district, to consider appropriate preservation criteria, and to prevent circumvention of the purposes of this section. Relief from the predesignation moratorium may be obtained by applying for a predesignation certificate of appropriateness or certificate for demolition or removal.
(2) Initiation of historic designation procedure.
(A) The procedure for adopting an ordinance to establish or amend a historic overlay district may be initiated by five members of the city council, three members of the city plan commission, one member of the landmark commission for an individual property and three members of the landmark commission for an expansion of an existing district or creation of a new district, or by the owner(s) of the property.
(i) Statement of intent for historic designation. The five city council members, three city plan commissioners, or one landmark commissioner if it is an individual property, or three landmark commissioners if it is an expansion of an existing district or creation of a new district, must prepare and present a statement of intent for historic designation at the public hearing to initiate the historic designation procedure. The purpose of the statement of intent for historic designation is to provide justification of the action under consideration. The statement of intent must be provided to the property owner(s) at the time the agenda for the meeting is posted. The statement of intent of historic designation must contain the following:
(aa) List of characteristics on which the initiation is based;
(bb) A brief description of the historical significance of the potential building, site, district or expansion;
(cc) Purpose of the proposed designation; and
(dd) For district expansions, a statement including the history and timeline of the existing district designation process and information on why the expansion area was not originally included with the initial district designation, if available.
(ii) Procedure for individual properties. The procedure to designate an individual property requires a minimum of one public hearing of the initiating body. The purpose of the hearing is to determine whether sufficient information is presented to initiate the historic designation procedure.
(iii) Procedures for expansions and new districts.
(aa) The procedure to expand an existing district or create a new district involves a minimum of two public hearings and a community meeting. The purpose of the first public hearing is to determine whether enough information is presented to consider a historic designation. This first public hearing does not initiate the historic designation procedure. If the city council, the city plan commission, or the landmark commission determines that sufficient information has been presented in the statement of intent for historic designation for consideration, the department shall conduct a community meeting. The purpose of the community meeting is for the proposing commissioners or city council members to present the statement of intent for historic designation to the property owners, neighbors, and interested parties to the proposed initiation, and to provide an opportunity for public comment. The meeting must be held at a facility open to the public within the neighborhood of the proposed historic district. The information presented must include the following:
(I) Statement of intent for historic designation;
(II) List of potential impacts of historic preservation;
(III) List of neighborhood planning concerns and goals; and
(IV) Any other information that may be relevant.
(bb) Prior to the second public hearing to initiate the historic designation procedure, the proposing commissioners or city council members must revise the statement of the intent for historic designation. The revised statement of intent must include the following, as applicable:
(I) original statement of intent;
(II) transcription of the community meeting;
(III) benefits and incentives of preservation;
(IV) additional neighborhood planning goals;
(V) concepts for additional development incentives paired with historic preservation;
(VI) summary of concerns; and
(VII) summary of economic incentives available to the property owners such as city of Dallas historic tax exemption, tax increment financial districts, and federal or state opportunities.
(VIII) statement reflecting the property owner(s) position, if available.
The purpose of the second public hearing is to review the revised statement of intent and determine whether sufficient information is presented to initiate the historic designation procedure.
(B) The director shall provide property owners with notice of a public hearing to initiate the historic designation procedure, a statement that describes the impact that a historic designation of the owner's property may have on the owner and the owner's property, and information about the process at least 15 days before the date set for the initial hearing using the procedure outlined in Section 51A-4.701(a)(1). The historic designation impact statement must include the following:
(i) regulations that may be applied to any structure on the property after the designation;
(ii) procedures for the designation;
(iii) tax benefits that may be applied to the property after the designation; and
(iv) rehabilitation or repair programs that the city offers for a property designated as historic.
(C) No permits to alter or demolish the property may be issued after provision of this notice until action is taken at that initial hearing by the city council, city plan commission, or landmark commission.
(D) The historic designation procedure is considered to be initiated immediately when the city council, the city plan commission, or the landmark commission votes to initiate it or, in the case of initiation by the property owner(s), when the zoning change application is filed with the director.
(3) Appeal. If the historic designation procedure is initiated by the landmark commission or the city plan commission, the property owner may appeal the initiation to the city council by filing a written notice with the director within 15 days after the action of the landmark commission or city plan commission. The written notice must include why the property owner thinks the criteria used to justify the initiation does not apply. Within 90 days after the filing of the appeal or 180 days after filing the appeal, if a 90 day extension is requested by the property owner within 45 days of filing the initial written notice of appeal with the director, the director and the chair of the landmark commission shall present the statement of intent for historic designation if it is an individual property, or the revised statement of intent for historic designation if it is an expansion or new district to the city council. After submission of the statement of intent for historic designation if it is an individual property, or revised statement of intent for historic designation if it is an expansion or new district, the city council shall hold a public hearing on the appeal. The sole issue on appeal is whether the landmark commission or city plan commission erred in evaluating the significance of the property based on the characteristics listed in Section 51A-4.501(b). Appeal to the city council constitutes the final administrative remedy.
(4) Enforcement. Upon initiation of the historic designation procedure, the historic preservation officer shall immediately notify the building official. The building official shall not accept any application for a permit to alter, demolish, or remove the structure or site subject to the predesignation moratorium, unless a predesignation certificate of appropriateness or certificate for demolition or removal has been issued.
(5) Designation report. Upon initiation of the historic designation procedure, the historic preservation officer shall coordinate research to compile a written report regarding the historical, cultural, and architectural significance of the place or area proposed for historic designation. This report must include a statement on each of the following to the extent that they apply:
(A) A listing of the architectural, archaeological, paleontological, cultural, economic, social, ethnic, political, or historical characteristics upon which the nomination is based;
(B) A description of the historical, cultural, and architectural significance of the structures and site;
(C) A description of the boundaries of the proposed historic overlay district, including subareas and areas where new construction will be prohibited; and
(D) Proposed preservation criteria for the proposed historic overlay district.
(6) Designation procedure. For purposes of Section 51A-4.701, "Zoning Amendments," once the designation report has been voted on by the landmark commission, the designation shall be treated as a city plan commission authorized public hearing and may not be appealed to city council if the city plan commission recommends denial. The notice of authorization in Section 51A-4.701(a)(1) is not required.
(7) Historic designation. The city may not designate a property a historic district unless:
(A) the owner of the property consents to the designation; or
(B) the designation is approved by a three-fourths vote of:
(i) the landmark commission;
(ii) the city plan commission; and
(iii) the city council.
(C) The owner of the property may withdraw consent at any time during the designation process by filing a written notice with the director.
(D) If the property is owned by an organization that qualifies as a religious organization under Section 11.20 of the Texas Tax Code, the city may designate the property as a historic district only if the organization consents to the designation.
(8) Computation of time.
(A) Unless otherwise provided in this paragraph, computing any period of time prescribed in this subsection shall be in accordance with Section 1-5 of the Dallas City Code.
(B) If the last day of any period is a Saturday, Sunday, or official holiday observed by the city, the period is extended to include the next day that is not a Saturday, Sunday, or official holiday observed by the city.
(C) Except as otherwise specified, time periods will be calculated based on calendar days.
(9) Termination of the predesignation moratorium. The predesignation moratorium ends on the earliest of the following dates:
(A) The day after the city council, city plan commission, or landmark commission that voted to initiate the historic designation procedure, votes to terminate the historic designation procedure.
(B) The day after the city council, in an appeal from an initiation by the city plan commission or landmark commission, votes to terminate the historic designation procedure.
(C) In the case of initiation by the property owner(s), the day after the zoning change application is withdrawn.
(D) If the proposed historic overlay district zoning change is approved, the effective date of the ordinance establishing the historic overlay district.
(E) If the proposed historic overlay district zoning change is denied, the day after either the city council makes its final decision denying the change or the expiration of the time period for appeal to the city council from a city plan commission recommendation of denial.
(F) Two years after the date the historic designation procedure was initiated, regardless of who initiated the procedure.
(d) Predesignation certificate of appropriate-ness.
(1) When required. A person shall not alter a site, or alter, place, construct, maintain, or expand any structure on the site during the predesignation moratorium without first obtaining a predesignation certificate of appropriateness in accordance with this subsection.
(2) Penalty. A person who violates this subsection is guilty of a separate offense for each day or portion of a day during which the violation is continued, from the first day the unlawful act was committed until either a predesignation certificate of appropriateness is obtained or the property is restored to the condition it was in immediately prior to the violation.
(3) Application. An application for a predesignation certificate of appropriateness must be submitted to the director. The application must include complete documentation of the proposed work. Within 10 days after submission of an application, the director shall notify the applicant in writing of any additional documentation required. No application shall be deemed to be filed until it is made on forms promulgated by the director and contains all required supporting plans, designs, photographs, reports, and other exhibits required by the director. The applicant may consult with the department before and after the submission of an application.
(4) Predesignation certificate of appropriateness review procedure. Upon receipt of an application for a predesignation certificate of appropriateness, the director shall determine whether the structure is contributing or noncontributing. Within 40 days after a complete application is filed for a noncontributing structure, the landmark commission shall hold a public hearing and shall approve, deny with prejudice, or deny without prejudice the application and forward its decision to the director. Within 65 days after a complete application is filed for a contributing structure, the landmark commission shall hold a public hearing and shall approve, deny with prejudice, or deny without prejudice the application and forward its decision to the director. The landmark commission may impose conditions on the predesignation certificate of appropriateness. The applicant has the burden of proof to establish the necessary facts to warrant favorable action. The director shall immediately notify the applicant of the landmark commission’s action. The landmark commission’s decision must be in writing and, if the decision is to deny the predesignation certificate of appropriateness, with or without prejudice, the writing must state the reasons why the predesignation certificate of appropriateness is denied.
(5) Standard for approval. The landmark commission must approve the application if it determines that:
(A) for contributing structures, the application will not adversely affect the character of the site or a structure on the site; and the proposed work is consistent with the regulations contained in this section and the proposed preservation criteria; or
(B) for noncontributing structures, the proposed work is compatible with the historic overlay district.
(6) Issuance. If a predesignation certificate of appropriateness has been approved by the landmark commission or if final action has not been taken by the landmark commission within 40 days (for a noncontributing structure) or 65 days (for a contributing structure) after a complete application is filed:
(A) the director shall issue the predesignation certificate of appropriateness to the applicant; and
(B) if all requirements of the development and building codes are met and a building permit is required for the proposed work, the building official shall issue a building permit to the applicant for the proposed work.
(7) Appeal. If a predesignation certificate of appropriateness is denied, the chair of the landmark commission shall verbally inform the applicant of the right to appeal to the city plan commission. If the applicant is not present at the hearing, the director shall inform the applicant of the right to appeal in writing within 10 days after the hearing. The applicant may appeal the denial to the city plan commission by filing a written notice with the director within 30 days after the date of the decision of the landmark commission. The director shall forward to the city plan commission a complete record of the matter being appealed, including a transcript of the tape of the hearing before the landmark commission. In considering an appeal, the city plan commission shall review the landmark commission record and hear and consider arguments from the appellant and the representative for the landmark commission. The city plan commission may only hear new testimony or consider new evidence that was not presented at the time of the hearing before the landmark commission to determine whether that testimony or evidence was available at the landmark commission hearing. If the city plan commission determines that new testimony or evidence exists that was not available at the landmark commission hearing, the city plan commission shall remand the case back to the landmark commission in accordance with Subsection (o). In reviewing the landmark commission decision the city plan commission shall use the substantial evidence standard in Subsection (o). The city plan commission may reverse or affirm, in whole or in part, modify the decision of the landmark commission, or remand any case back to the landmark commission for further proceedings. Appeal to the city plan commission constitutes the final administrative remedy.
(8) Reapplication. If a final decision is reached denying a predesignation certificate of appropriateness, no further applications may be considered for the subject matter of the denied predesignation certificate of appropriateness unless the predesignation certificate of appropriateness has been denied without prejudice or the landmark commission finds that there are changed circumstances sufficient to warrant a new hearing. A simple majority vote by the landmark commission is required to grant the request for a new hearing.
(9) Suspension of work. After the work authorized by the predesignation certificate of appropriateness is commenced, the applicant must make continuous progress toward completion of the work, and the applicant shall not suspend or abandon the work for a period in excess of 180 days. The director may, in writing, authorize a suspension of the work for a period greater than 180 days upon written request by the applicant showing circumstances beyond the control of the applicant.
(10) Revocation. The director may, in writing, revoke a predesignation certificate of appropriateness if:
(A) the predesignation certificate of appropriateness was issued on the basis of incorrect information supplied;
(B) the predesignation certificate of appropriateness was issued in violation of the regulations contained in this section, the proposed preservation criteria, or the development code or building codes; or
(C) the work is not performed in accordance with the predesignation certificate of appropriateness, the development code, or building codes.
(11) Amendments to a predesignation certificate of appropriateness. A predesignation certificate of appropriateness may be amended by submitting an application for amendment to the director. The application shall then be subject to the standard predesignation certificate of appropriateness review procedure.
(12) Effect of approval of the historic overlay district. A predesignation certificate of appropriateness will be treated as a certificate of appropriateness after the effective date of the ordinance implementing the historic overlay district.
(e) Additional uses and regulations.
(1) A historic overlay district is a zoning overlay which supplements the primary underlying zoning district classification. A historic overlay district is subject to the regulations of the underlying zoning district, except the ordinance establishing the historic overlay district may permit additional uses and provide additional regulations for the historic overlay district.
(2) If there is a conflict, the regulations contained in the historic overlay district ordinance control over the regulations of the underlying zoning district. If there is a conflict, the regulations contained in the historic overlay district ordinance control over the regulations of this section.
(3) The historic overlay district ordinance may include preservation criteria for the interior of historic structures if the interior is customarily open and accessible to the public and the interior has extraordinary architectural, archaeological, cultural, economic, social, ethnic, political or historical value. Unless there are specific provisions for the interior, the preservation criteria in the historic overlay district ordinance and the Secretary of the Interior’s Standards for the Rehabilitation of Historic Properties apply only to the exterior of structures within a historic overlay district.
(4) The landmark commission shall consider the Secretary of the Interior’s Standards for the Rehabilitation of Historic Properties (“the Standards”), as amended, when reviewing applications for predesignation and standard certificates of appropriateness. Rehabilitation is defined as the act or process of making possible a compatible use for a property through repair, alterations, and additions while preserving those portions or features which convey its historical, cultural, or architectural values. The Standards are common sense principles in non-technical language developed to help promote consistent rehabilitation practices. It should be understood that the Standards are a series of concepts about maintaining, repairing, and replacing historic materials, as well as designing new additions or making alterations; as such, they cannot, in and of themselves, be used to make essential decisions about which features of a historic property should be saved and which might be changed. The director shall make the current Standards available for public inspection at all times. For informational purposes, the Standards published at Section 68.3 of Title 36 of the Code of Federal Regulations (current through January 1, 2001) are set forth below:
(A) A property will be used as it was historically or be given a new use that requires minimal changes to its distinctive materials, features, spaces and spatial relationships.
(B) The historic character of a property will be retained and preserved. The removal of distinctive materials or alteration of features, spaces, and spatial relationships that characterize a property will be avoided.
(C) Each property will be recognized as a physical record of its time, place and use. Changes that create a false sense of historical development, such as adding conjectural features or elements from other historic properties, will not be undertaken.
(D) Changes to a property that have acquired historic significance in their own right will be retained and preserved.
(E) Distinctive materials, features, finishes, and construction techniques or examples of craftsmanship that characterize a property will be preserved.
(F) Deteriorated historic features will be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature will match the old in design, color, texture, and, where possible, materials. Replacement of missing features will be substantiated by documentary and physical evidence.
(G) Chemical or physical treatments, if appropriate, will be undertaken using the gentlest means possible. Treatments that cause damage to historic materials will not be used.
(H) Archeological resources will be protected and preserved in place. If such resources must be disturbed, mitigation measures will be undertaken.
(I) New additions, exterior alterations, or related new construction will not destroy historic materials, features, and spatial relationships that characterize the property. The new work will be differentiated from the old and will be compatible with the historic materials, features, size, scale and proportion, and massing to protect the integrity of the property and its environment.
(J) New additions and adjacent or related new construction will be undertaken in such a manner that, if removed in the future, the essential form and integrity of the historic property and its environment would be unimpaired.
(f) Notice of designation.
(1) Upon passage of a historic overlay district ordinance, the director shall send a notice to the owner or owners of property within the historic overlay district stating the effect of the designation, the regulations governing the historic overlay district, and the historic preservation incentives that may be available.
(2) Upon passage of a historic overlay district ordinance, the director shall file a copy of the ordinance in the county deed records to give notice of the historic regulations. Pursuant to Texas Local Government Code Section 315.006, the director shall also file in the county deed records a verified written instrument listing each historic structure or property by the street address, if available, the legal description of the real property, and the name of the owner, if available.
(3) The director may erect suitable plaques appropriately identifying each historic overlay district.
(g) Certificate of appropriateness.
(1) When required. A person shall not alter a site within a historic overlay district, or alter, place, construct, maintain, or expand any structure on the site without first obtaining a certificate of appropriateness in accordance with this subsection and the regulations and preservation criteria contained and in the historic overlay district ordinance.
(2) Penalty. A person who violates this subsection is guilty of a separate offense for each day or portion of a day during which the violation is continued, from the first day the unlawful act was committed until either a certificate of appropriateness is obtained or the property is restored to the condition it was in immediately prior to the violation.
(3) Application. An application for a certificate of appropriateness must be submitted to the director. The application must include complete documentation of the proposed work. Within 10 days after submission of an application, the director shall notify the applicant in writing of any additional documentation required. No application shall be deemed to be filed until it is made on forms promulgated by the director and contains all required supporting plans, designs, photographs, reports, and other exhibits required by the director. The applicant may consult with the department before and after the submission of an application.
(4) Director’s determination of procedure. Upon receipt of an application for a certificate of appropriateness, the director shall determine whether the application is to be reviewed under the routine work review procedure or the standard certificate of appropriateness review procedure.
(5) Routine maintenance work review procedure.
(A) If the director determines that the applicant is seeking a certificate of appropriateness to authorize only routine maintenance work, he may review the application to determine whether the proposed work complies with the regulations contained in this section and the preservation criteria contained in the historic overlay district ordinance and approve or deny the application within 20 days after a complete application is filed. The applicant must supply complete documentation of the work. Upon request, staff will forward copies of applications to the task force. The director may forward any application to the landmark commission for review.
(B) Routine maintenance work includes:
(i) the installation of a chimney located on an accessory building, or on the rear 50 percent of a main building and not part of the corner side facade;
(ii) the installation of an awning located on an accessory building, or on the rear facade of a main building;
(iii) the replacement of a roof of the same or an original material that does not include a change in color;
(iv) the installation of a wood or chain link fence that is not painted or stained;
(v) the installation of gutters and downspouts of a color that matches or complements the dominant trim or roof color;
(vi) the installation of skylights and solar panels;
(vii) the installation of storm windows and doors;
(viii) the installation of window and door screens;
(ix) the application of paint that is the same as the existing or that is an appropriate dominant, trim, or accent color;
(x) the restoration of original architectural elements;
(xi) minor repair using the same material and design as the original;
(xii) repair of sidewalks and driveways using the same type and color of materials;
(xiii) the process of cleaning (including but not limited to low-pressure water blasting and stripping), but excluding sandblasting and high-pressure water blasting; and
(xiv) painting, replacing, duplicating, or stabilizing deteriorated or damaged architectural features (including but not limited to roofing, windows, columns, and siding) in order to maintain the structure and to slow deterioration.
(C) The applicant may appeal the director’s decision by submitting to the director a written request for appeal within 10 days of the decision. The written request for appeal starts the standard certificate of appropriateness review procedure by the landmark commission.
(6) Standard certificate of appropriate-ness review procedure.
(A) If the director determines that the applicant is seeking a certificate of appropriateness to authorize work that is not routine maintenance work, or if the director’s decision concerning a certificate of appropriateness to authorize only routine maintenance work is appealed, the director shall immediately forward the application to the landmark commission for review.
(B) Upon receipt of an application for a certificate of appropriateness, the director shall determine whether the structure is contributing or noncontributing. Within 40 days after a complete application is filed for a noncontributing structure, the landmark commission shall hold a public hearing and shall approve, deny with prejudice, or deny without prejudice the application and forward its decision to the director. Within 65 days after a complete application is filed for a contributing structure, the landmark commission shall hold a public hearing and shall approve, deny with prejudice, or deny without prejudice the certificate of appropriateness and forward its decision to the director. The landmark commission may approve a certificate of appropriateness for work that does not strictly comply with the preservation criteria upon a finding that the proposed work is historically accurate and is consistent with the spirit and intent of the preservation criteria and that the proposed work will not adversely affect the historic character of the property or the integrity of the historic overlay district. The landmark commission may impose conditions on the certificate of appropriateness. The applicant has the burden of proof to establish the necessary facts to warrant favorable action. The director shall immediately notify the applicant of the landmark commission’s action. The landmark commission’s decision must be in writing and, if the decision is to deny the certificate of appropriateness, with or without prejudice, the writing must state the reasons why the certificate of appropriateness is denied.
(C) Standard for approval. The landmark commission must grant the application if it determines that:
(i) for contributing structures:
(aa) the proposed work is consistent with the regulations contained in this section and the preservation criteria contained in the historic overlay district ordinance;
(bb) the proposed work will not have an adverse effect on the architectural features of the structure;
(cc) the proposed work will not have an adverse effect on the historic overlay district; and
(dd) the proposed work will not have an adverse effect on the future preservation, maintenance and use of the structure or the historic overlay district.
(ii) for noncontributing structures, the proposed work is compatible with the historic overlay district.
(D) Issuance. If a certificate of appropriateness has been approved by the landmark commission or if final action has not been taken by the landmark commission within 40 days (for a noncontributing structure) or 65 days (for a contributing structure) after a complete application is filed:
(i) the director shall issue the certificate of appropriateness to the applicant; and
(ii) if all requirements of the development and building codes are met and a building permit is required for the proposed work, the building official shall issue a building permit to the applicant for the proposed work.
(E) Appeal. If a certificate of appropriateness is denied, the chair of the landmark commission shall verbally inform the applicant of the right to appeal to the city plan commission. If the applicant is not present at the hearing, the director shall inform the applicant of the right to appeal in writing within 10 days after the hearing. The applicant may appeal the denial to the city plan commission by filing a written notice with the director within 30 days after the date of the decision of the landmark commission. The director shall forward to the city plan commission a complete record of the matter being appealed, including a transcript of the tape of the hearing before the landmark commission. In considering an appeal, the city plan commission shall review the landmark commission record and hear and consider arguments from the appellant and the representative for the landmark commission. The city plan commission may only hear new testimony or consider new evidence that was not presented at the time of the hearing before the landmark commission to determine whether that testimony or evidence was available at the landmark commission hearing. If the city plan commission determines that new testimony or evidence exists that was not available at the landmark commission hearing, the city plan commission shall remand the case back to the landmark commission in accordance with Subsection (o). In reviewing the landmark commission decision the city plan commission shall use the substantial evidence standard in Subsection (o). The city plan commission may reverse or affirm, in whole or in part, modify the decision of the landmark commission, or remand any case back to the landmark commission for further proceedings. Appeal to the city plan commission constitutes the final administrative remedy.
(F) Reapplication. If a final decision is reached denying a certificate of appropriateness, no further applications may be considered for the subject matter of the denied certificate of appropriateness for one year from the date of the final decision unless:
(i) the certificate of appropriateness has been denied without prejudice; or
(ii) the landmark commission waives the time limitation because the landmark commission finds that there are changed circumstances sufficient to warrant a new hearing. A simple majority vote by the landmark commission is required to grant the request for waiver of the time limitation.
(G) Suspension of work. After the work authorized by the certificate of appropriateness is commenced, the applicant must make continuous progress toward completion of the work, and the applicant shall not suspend or abandon the work for a period in excess of 180 days. The director may, in writing, authorize a suspension of the work for a period greater than 180 days upon written request by the applicant showing circumstances beyond the control of the applicant.
(H) Revocation. The director may, in writing, revoke a certificate of appropriateness if:
(i) the certificate of appropriateness was issued on the basis of incorrect information supplied;
(ii) the certificate of appropriateness was issued in violation of the regulations contained in this section, the preservation criteria contained in the historic overlay district ordinance, the development code, or building codes; or
(iii) the work is not performed in accordance with the certificate of appropriateness, the development code, or building codes.
(I) Amendments to a certificate of appropriateness. A certificate of appropriateness may be amended by submitting an application for amendment to the director. The application shall then be subject to the standard certificate of appropriateness review procedure.
(8) Emergency procedure. If a structure on a property subject to the predesignation moratorium or a structure in a historic overlay district is damaged and the building official determines that the structure is a public safety hazard or will suffer additional damage without immediate repair, the building official may allow the property owner to temporarily protect the structure. In such a case, the property owner shall apply for a predesignation certificate of appropriateness, certificate of appropriateness, or certificate for demolition or removal within 10 days of the occurrence which caused the damage. The protection authorized under this subsection must not permanently alter the architectural features of the structure.
(h) Certificate for demolition or removal.
(1) Findings and purpose. Demolition or removal of a historic structure constitutes an irreplaceable loss to the quality and character of the city. Therefore, demolition or removal of historic structures should be allowed only for the reasons described in this subsection.
(2) Application. A property owner seeking demolition or removal of a structure on a property subject to the predesignation moratorium or a structure in a historic overlay district must submit a complete application for a certificate for demolition or removal to the landmark commission. Within 10 days after submission of an application, the director shall notify the applicant in writing of any additional documentation required. The application must be accompanied by the following documentation before it will be considered complete:
(A) An affidavit in which the owner swears or affirms that all information submitted in the application is true and correct.
(B) An indication that the demolition or removal is sought for one or more of the following reasons:
(i) To replace the structure with a new structure that is more appropriate and compatible with the historic overlay district.
(ii) No economically viable use of the property exists.
(iii) The structure poses an imminent threat to public health or safety.
(iv) The structure is non-contributing to the historic overlay district because it is newer than the period of historic significance.
(C) For an application to replace the structure with a new structure that is more appropriate and compatible with the historic overlay district:
(i) Records depicting the original construction of the structure, including drawings, pictures, or written descriptions.
(ii) Records depicting the current condition of the structure, including drawings, pictures, or written descriptions.
(iii) Any conditions proposed to be placed voluntarily on the new structure that would mitigate the loss of the structure.
(iv) Complete architectural drawings of the new structure.
(v) A guarantee agreement between the owner and the city that demonstrates the owner’s intent and financial ability to construct the new structure. The guarantee agreement must:
(aa) contain a covenant to construct the proposed structure by a specific date in accordance with architectural drawings approved by the city through the predesignation certificate of appropriateness process or the certificate of appropriateness process;
(bb) require the owner or construction contractor to post a performance and payment bond, letter of credit, escrow agreement, cash deposit, or other arrangement acceptable to the director to ensure construction of the new structure; and
(cc) be approved as to form by the city attorney.
(D) For an application of no economically viable use of the property:
(i) The past and current uses of the structure and property.
(ii) The name of the owner.
(iii) If the owner is a legal entity, the type of entity and states in which it is registered.
(iv) The date and price of purchase or other acquisition of the structure and property, and the party from whom acquired, and the owner’s current basis in the property.
(v) The relationship, if any, between the owner and the party from whom the structure and property were acquired. (If one or both parties to the transaction were legal entities, any relationships between the officers and the board of directors of the entities must be specified.)
(vi) The assessed value of the structure and property according to the two most recent tax assessments.
(vii) The amount of real estate taxes on the structure and property for the previous two years.
(viii) The current fair market value of the structure and property as determined by an independent licensed appraiser.
(ix) All appraisals obtained by the owner and prospective purchasers within the previous two years in connection with the potential or actual purchase, financing, or ownership of the structure and property.
(x) All listings of the structure and property for sale or rent within the previous two years, prices asked, and offers received.
(xi) A profit and loss statement for the property and structure containing the annual gross income for the previous two years; itemized expenses (including operating and maintenance costs) for the previous two years, including proof that adequate and competent management procedures were followed; the annual cash flow for the previous two years; and proof that the owner has made reasonable efforts to obtain a reasonable rate of return on the owner’s investment and labor.
(xii) A mortgage history of the property during the previous five years, including the principal balances and interest rates on the mortgages and the annual debt services on the structure and property.
(xiii) All capital expenditures during the current ownership.
(xiv) Records depicting the current conditions of the structure and property, including drawings, pictures, or written descriptions.
(xv) A study of restoration of the structure or property, performed by a licensed architect, engineer or financial analyst, analyzing the physical feasibility (including architectural and engineering analyses) and financial feasibility (including pro forma profit and loss statements for a ten year period, taking into consideration redevelopment options and all incentives available) of adaptive use of restoration of the structure and property.
(xvi) Any consideration given by the owner to profitable adaptive uses for the structure and property.
(xvii) Construction plans for any proposed development or adaptive reuse, including site plans, floor plans, and elevations.
(xviii) Any conditions proposed to be placed voluntarily on new development that would mitigate the loss of the structure.
(xix) Any other evidence that shows that the affirmative obligation to maintain the structure or property makes it impossible to realize a reasonable rate of return.
(E) For an application to demolish or remove a structure that poses an imminent threat to public health or safety:
(i) Records depicting the current condition of the structure, including drawings, pictures, or written descriptions.
(ii) A study regarding the nature, imminence, and severity of the threat, as performed by a licensed architect or engineer.
(iii) A study regarding both the cost of restoration of the structure and the feasibility (including architectural and engineering analyses) of restoration of the structure, as performed by a licensed architect or engineer.
(F) For an application to demolish or remove a structure that is noncontributing to the historic overlay district because the structure is newer than the period of historic significance:
(i) Documentation that the structure is noncontributing to the historic overlay district.
(ii) Documentation of the age of the structure.
(iii) A statement of the purpose of the demolition.
(G) Any other evidence the property owner wishes to submit in support of the application.
(H) Any other evidence requested by the landmark commission or the historic preservation officer.
(3) Certificate of demolition or removal review procedure.
(A) Economic review panel. For an application of no economically viable use of the property, the landmark commission shall cause to be established an ad hoc three-person economic review panel. The economic review panel must be comprised of three independent experts knowledgeable in the economics of real estate, renovation, and redevelopment. “Independent” as used in this subparagraph means that the expert has no financial interest in the property, its renovation, or redevelopment; is not an employee of the property owner; is not a city employee; is not a member of the landmark commission; and is not compensated for serving on the economic review panel. The economic review panel must consist of one person selected by the landmark commission, one person selected by the property owner, and one person selected by the first two appointees. If the first two appointees cannot agree on a third appointee within 30 days after submission of the documentation supporting the application, the third appointee will be selected by the director within 5 days. Within 35 days after submission of the documentation supporting the application, all appointments to the economic review panel shall be made. Within 35 days after appointment, the economic review panel shall review the submitted documentation; hold a public hearing; consider all options for renovation, adaptive reuse, and redevelopment; and forward a written recommendation to the landmark commission. The historic preservation officer shall provide administrative support to the economic review panel. The economic review panel’s recommendation must be based on the same standard for approval to be used by the landmark commission. An application of no economically viable use will not be considered complete until the economic review panel has made its recommendation to the landmark commission. If the economic review panel is unable to reach a consensus, the report will indicate the majority and minority recommendations.
(B) Within 65 days after submission of a complete application, the landmark commission shall hold a public hearing and shall approve or deny the application. If the landmark commission does not make a final decision within that time, the building official shall issue a permit to allow the requested demolition or removal. The property owner has the burden of proof to establish by clear and convincing evidence the necessary facts to warrant favorable action by the landmark commission.
(4) Standard for approval. The landmark commission shall deny the application unless it makes the following findings:
(A) The landmark commission must deny an application to replace a structure with a new structure unless it finds that:
(i) the new structure is more appropriate and compatible with the historic overlay district than the structure to be demolished or removed; and
(ii) the owner has the financial ability and intent to build the new structure. The landmark commission must first approve the predesignation certificate of appropriateness or certificate of appropriateness for the proposed new structure and the guarantee agreement to construct the new structure before it may consider the application to demolish or remove.
(B) The landmark commission must deny an application of no economically viable use of the property unless it finds that:
(i) the structure is incapable of earning a reasonable economic return unless the demolition or removal is allowed (a reasonable economic return does not have to be the most profitable return possible);
(ii) the structure cannot be adapted for any other use, whether by the owner or by a purchaser, which would result in a reasonable economic return; and
(iii) the owner has failed during the last two years to find a developer, financier, purchaser, or tenant that would enable the owner to realize a reasonable economic return, despite having made substantial ongoing efforts to do so.
(C) The landmark commission must deny an application to demolish or remove a structure that poses an imminent threat to public health or safety unless it finds that:
(i) the structure constitutes a documented major and imminent threat to public health and safety;
(ii) the demolition or removal is required to alleviate the threat to public health and safety; and
(iii) there is no reasonable way, other than demolition or removal, to eliminate the threat in a timely manner.
(D) The landmark commission must deny an application to demolish or remove a structure that is noncontributing to the historic overlay district because it is newer than the period of historic significance unless it finds that:
(i) the structure is non-contributing to the historic overlay district;
(ii) the structure is newer than the period of historic significance for the historic overlay district; and
(iii) demolition of the structure will not adversely affect the historic character of the property or the integrity of the historic overlay district.
(5) Appeal. The chair of the landmark commission shall give verbal notice of the right to appeal at the time a decision on the application is made. If the applicant is not present at the hearing, the director shall inform the applicant of the right to appeal in writing within 10 days after the hearing. Any interested person may appeal the decision of the landmark commission to the city plan commission by filing a written notice with the director within 30 days after the date of the decision of the landmark commission. If no appeal is made of a decision to approve the certificate for demolition or removal within the 30-day period, the building official shall issue the permit to allow demolition or removal. If an appeal is filed, the city plan commission shall hear and decide the appeal within 65 days after the date of its filing. The director shall forward to the city plan commission a complete record of the matter being appealed, including a transcript of the tape of the hearing before the landmark commission. In considering an appeal, the city plan commission shall review the landmark commission record and hear and consider arguments from the appellant and the representative for the landmark commission. The city plan commission may only hear new testimony or consider new evidence that was not presented at the time of the hearing before the landmark commission to determine whether that testimony or evidence was available at the landmark commission hearing. If the city plan commission determines that new testimony or evidence exists that was not available at the landmark commission hearing, the city plan commission shall remand the case back to the landmark commission in accordance with Subsection (o). In reviewing the landmark commission decision the city plan commission shall use the substantial evidence standard in Subsection (o). The city plan commission may reverse or affirm, in whole or in part, modify the decision of the landmark commission, or remand any case back to the landmark commission for further proceedings. Appeal to the city plan commission constitutes the final administrative remedy.
(6) Reapplication. If a final decision is reached denying a certificate for demolition or removal, no further applications may be considered for the subject matter of the denied certificate for demolition or removal for one year from the date of the final decision unless:
(A) the certificate for demolition or removal has been denied without prejudice; or
(B) the landmark commission waives the time limitation because the landmark commission finds that there are changed circumstances sufficient to warrant a new hearing. A simple majority vote by the landmark commission is required to grant the request for waiver of the time limitation.
(7) Expiration. A certificate for demolition or removal expires if the work authorized by the certificate for demolition or removal is not commenced within 180 days from the date of the certificate for demolition or removal. The director may extend the time for commencement of work upon written request by the applicant showing circumstances beyond the control of the applicant. If the certificate for demolition or removal expires, a new certificate for demolition or removal must first be obtained before the work can be commenced.
(i) Reserved.
(j) Summary abatement by fire marshal. If the fire marshal finds that conditions on a structure subject to a predesignation moratorium or in a historic overlay district are hazardous to life or property and present a clear and present danger, the fire marshal may summarily abate those conditions without a predesignation certificate of appropriateness, certificate of appropriateness, or certificate for demolition.
(k) Demolition by neglect.
(1) Definition. Demolition by neglect is neglect in the maintenance of any structure on property subject to the predesignation moratorium or in a historic overlay district that results in deterioration of the structure and threatens the preservation of the structure.
(2) Demolition by neglect prohibited. No person shall allow a structure to deteriorate through demolition by neglect. All structures on properties subject to the predesignation moratorium and in historic overlay districts must be preserved against deterioration and kept free from structural defects. The property owner or the property owner’s agent with control over the structure, in keeping with the city’s minimum housing standards and building codes, must repair the structure if it is found to have any of the following defects:
(A) Parts which are improperly or inadequately attached so that they may fall and injure persons or property.
(B) A deteriorated or inadequate foundation.
(C) Defective or deteriorated floor supports or floor supports that are insufficient to carry the loads imposed.
(D) Walls, partitions, or other vertical supports that split, lean, list, or buckle due to defect or deterioration, or are insufficient to carry the loads imposed.
(E) Ceilings, roofs, ceiling or roof supports, or other horizontal members which sag, split, or buckle due to defect or deterioration, or are insufficient to support the loads imposed.
(F) Fireplaces and chimneys which list, bulge, or settle due to defect or deterioration, or are of insufficient size or strength to carry the loads imposed.
(G) Deteriorated, crumbling, or loose exterior stucco or mortar.
(H) Deteriorated or ineffective waterproofing of exterior walls, roofs, foundations, or floors, including broken or open windows and doors.
(I) Defective or lack of weather protection for exterior wall coverings, including lack of paint or other protective covering.
(J) Any fault, defect, or condition in the structure which renders it structurally unsafe or not properly watertight.
(K) Deterioration of any exterior feature so as to create a hazardous condition which could make demolition necessary for the public safety.
(L) Deterioration or removal of any unique architectural feature which would detract from the original architectural style.
(3) Demolition by neglect procedure.
(A) Purpose. The purpose of the demolition by neglect procedure is to allow the landmark commission to work with the property owner to encourage maintenance and stabilization of the structure and identify resources available before any enforcement action is taken.
(B) Request for investigation. Any interested party may request that the historic preservation officer investigate whether a property is being demolished by neglect.
(C) First meeting with the property owner. Upon receipt of a request, the historic preservation officer shall meet with the property owner or the property owner’s agent with control of the structure to inspect the structure and discuss the resources available for financing any necessary repairs. After the meeting, the historic preservation officer shall prepare a report for the landmark commission on the condition of the structure, the repairs needed to maintain and stabilize the structure, any resources available for financing the repairs, and the amount of time needed to complete the repairs.
(D) Certification and notice. After review of the report, the landmark commission may vote to certify the property as a demolition by neglect case. If the landmark commission certifies the structure as a demolition by neglect case, the landmark commission shall notify the property owner or the property owner’s agent with control over the structure of the repairs that must be made. The notice must require that repairs be started within 30 days and set a deadline for completion of the repairs. The notice must be sent by certified mail.
(E) Second meeting with the property owner. The historic preservation officer shall meet with the property owner or the property owner’s agent with control over the structure within 30 days after the notice was sent to inspect any repairs completed and assist the property owner in obtaining any resources available for financing the repairs.
(F) Referral for enforcement. If the property owner or the property owner’s agent with control over the structure fails to start repairs by the deadline set in the notice, fails to make continuous progress toward completion, or fails to complete repairs by the deadline set in the notice, the landmark commission may refer the demolition by neglect case to the code compliance department or the city attorney for appropriate enforcement action to prevent demolition by neglect.
(l) Historic preservation incentives. Consult Article XI, “Development Incentives,” for regulations concerning the tax exemptions, conservation easements, and transfer of development rights available to structures in historic overlay districts.
(m) Historic preservation fund.
(1) The department, in cooperation with community organizations, shall develop appropriate funding structures and shall administer the historic preservation fund.
(2) The historic preservation fund is composed of the following funds:
(A) Outside funding (other than city general funds or capital funds), such as grants and donations, made to the city for the purpose of historic preservation and funding partnerships with community organizations.
(B) Damages recovered pursuant to Texas Local Government Code Section 315.006 from persons who illegally demolish or adversely affect historic structures.
(3) The outside funding may be used for financing the following activities:
(A) Necessary repairs in demolition by neglect cases.
(B) Full or partial restoration of low-income residential and nonresidential structures.
(C) Full or partial restoration of publicly owned historic structures.
(D) Acquisition of historic structures, places, or areas through gift or purchase.
(E) Public education of the benefits of historic preservation or the regulations governing historic overlay districts.
(F) Identification and cataloging of structures, places, areas, and districts of historical, cultural, or architectural value along with factual verification of their significance.
(4) Damages recovered pursuant to Texas Local Government Code Section 315.006 must be used only for the following purposes:
(A) Construction, using as many of the original materials as possible, of a structure that is a reasonable facsimile of a demolished historic structure.
(B) Restoration, using as many of the original materials as possible, of the historic structure.
(C) Restoration of another historic structure.
(n) Enforcement and criminal penalties.
(1) A person is criminally responsible for a violation of this section if:
(A) the person owns part or all of the property and knowingly allows the violation to exist;
(B) the person is the agent of the property owner or is an individual employed by the agent or property owner; is in control of the property; knowingly allows the violation to exist; and fails to provide the property owner’s name, street address, and telephone number to code enforcement officials;
(C) the person is the agent of the property owner or is an individual employed by the agent or property owner, knowingly allows the violation to exist, and the citation relates to the construction or development of the property; or
(D) the person knowingly commits the violation or assists in the commission of the violation.
(2) Any person who adversely affects or demolishes a structure on property subject to the predesignation moratorium or in a historic overlay district in violation of this section is liable pursuant to Texas Local Government Code Section 315.006 for damages to restore or replicate, using as many of the original materials as possible, the structure to its appearance and setting prior to the violation. No predesignation certificates of appropriateness, certificates of appropriateness, or building permits will be issued for construction on the site except to restore or replicate the structure. When these restrictions become applicable to a site, the director shall cause to be filed a verified notice in the county deed records and these restrictions shall be binding on future owners of the property. These restrictions are in addition to any fines imposed.
(3) Prosecution in municipal court for an offense under this section does not prevent the use of other enforcement remedies or procedures provided by other city ordinances or state or federal laws applicable to the person charged with or the conduct involved in the offense.
(o) Substantial evidence standard of review for appeals. The city plan commission shall give deference to the landmark commission decision and may not substitute its judgment for the landmark commission’s judgment.
(1) The city plan commission shall remand the matter back to the landmark commission if it determines that there is new testimony or evidence that was not available at the landmark commission hearing.
(2) The city plan commission shall affirm the landmark commission decision unless it finds that it:
(A) violates a statutory or ordinance provision;
(B) exceeds the landmark commission’s authority; or
(C) was not reasonably supported by substantial evidence considering the evidence in the record.
(p) Judicial review of decisions. The final decision of the city planning commission regarding an appeal of a landmark commission decision may be appealed to a state district court. The appeal to the state district court must be filed within 30 days after the decision of the city planning commission. If no appeal is made to the state district court within the 30-day period, then the decision of the city plan commission is final and unappealable. An appeal to the state district court is limited to a hearing under the substantial evidence rule. (Ord. Nos. 19455; 19499; 20585; 21244; 21403; 21513; 21874; 22018; 23506; 23898; 24163; 24542; 24544; 25047; 26286; 27430; 27922; 28073; 28553; 29478; 31433
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