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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Council Voices Concerns Regarding Louisville Landmarks Ordinance Amendments  Posted: June 29, 2012

June 29, 2012

All Members, Louisville Metro Council
By email only

Re: Proposed Landmarks Ordinance Amendments

Dear Council Members:

I am writing to express the concerns of the Kentucky Resources Council, Inc., both as a matter of law and of public policy, regarding the proposed amendment to Section 32.260 of the Louisville/Jefferson County Metro Code of Ordinances (Code). For the reasons outline below, I encourage your reconsideration of the proposal.

Section 32.260(C)

The latest iteration of the ordinance revision with respect to the petition for designation of a structure of property as a local landmark, modifies the existing requirement that the petition contain the verified signatures and addresses of 200 residents of Metro Louisville, by requiring that a majority of those signatures (101) come from residents or property owners within the greater of 1-mile surrounding the property or structure, the Council District in which the proposed landmark is located, or a combination of both.

Since all properties within Metro Louisville are located within a Metro Council District, and no district is smaller than 1 mile in circumference, it would appear that the more straightforward approach, if the Council determines that it wishes to so limit the petition process, to say that at least 101 of the signatures and addresses must be located within the Metro District or Districts in which the proposed landmark is located (since some may straddle two Council Districts).

The Council questions, however, as a matter of policy, the wisdom of limiting the petition process in this manner serves to divide the community rather than to recognize the significance of local landmarks not only to the neighborhoods in which they are located, but to the greater community.

32.260(D)(2)

The proposed amendment would require a staff study and report on a request for designation of a property or structure as a local landmark, within 18 days of submission of the petition, and a hearing within 60 calendar days (with the possibility of expanding that hearing timeframe to 75 days).

The timeframes are far too abbreviated to allow staff to properly assess the eligibility of the property for designation as a local landmark, and is likely to result in decisions made in haste in order to meet artificial deadline rather than reasoned judgments made after collection of necessary information to address the criteria outlined in 32.260(E)(1). The Council recommends

a. That the timeframe for development of a staff report and for conducting a hearing commence after verification of the signatures and addresses as meeting the requirements of the ordinance, rather that after submission of the petition;

b. That within ten (10) days of the submission of a petition for designation of a local landmark, the Commission determine whether the petition is “administratively complete”, meaning that it meets the signature and other requirements of the ordinance; and

c. That within forty-five (45) calendar days after a determination of administrative completeness, the staff report shall be prepared, and that a public hearing shall be scheduled within seventy-five (75) days of the determination of administrative completeness.

With respect to the scheduling of a hearing “at a time and place convenient to the public,” the Ordinance makes that requirement a discretionary option at the discretion of the Commission Chair where requested by the property owner or petitioner, and only when deemed to be “appropriate and reasonable” by the Commission Chair.

Respectfully, as a matter of law and policy, all meetings of public agencies should be scheduled at a time and place convenient to the public.

The Council supports the expanded public notice, since encouraging public input in the designation process may provide information to assist the Commission in understanding the historical and cultural context of the proposed structure or property.

32.260(G)

The most recent iteration of the ordinance amendment creates a process by which the Metro Council can, sua sponte, determine that it wants to review, or wants a Committee of the Metro Council, to review a decision by the Commission to designate a local landmark or to amend an already designated local landmark. Under the proposed revision, the Commission action would become final sixty (60) days after the date of Commission action unless the Metro Council adopted a resolution initiating review.

Upon adoption of such an ordinance, the Metro Council would notify the parties listed in (D)(2) and would identify the time and date of the review and whether a public hearing would be held.

The proposed revision further proposes that in the absence of a public hearing held by the Council or by a Committee, “the Metro Council shall confine its review to the information that was presented to the Commission.”

Finally, the Ordinance provides that the Metro Council “shall take its final action upon the review of any decision of the Commission” within a time certain and shall “make a decision based upon a written finding of fact, which shall uphold, modify, or overturn the Commission’s decision, and may place conditions the Metro Council deems appropriate.”

The proposed revision raises several policy questions and some constitutional issues as well. As to the policy issue, the threshold question that must be asked is why the public is better served under the proposed approach than by the current process, which vests decisionmaking on whether a particular property meets the criteria established by Metro Council in ordinance. The Ordinance presupposes that the Commission can err only on the side of designation, since it does not propose any Metro Council review of a decision by the Commission that a property or structure does not meet the established criteria – an assumption that is unfounded in the Council’s experience.

To the extent that Metro Council believes, as a prerequisite to entertaining this proposed revision, that there are instances in which the Commission has acted arbitrarily, a remedy already exists at law by which any party that believes an agency has acted arbitrarily or in a manner inconsistent with law, can seek judicial review of that decision. If the Metro Council determines that it wishes to become engaged in reviewing the actions of the Commission in designating a structure or property as a landmark, it must build into the review process several due process protections that are absent from the current proposed language.

The question has been raised as to why, given that the designation of landmark districts is a decision vested by Ordinance in the Metro Council, individual landmark designations should not also ratified by Metro Council action.

The distinction is a fundamental one. The adoption of a district designation is in the nature of a legislative action, and is different than the individualized, quasi-judicial, fact-specific determination of whether a particular structure or property merits landmark designation based on the application of the criteria of the Ordinance to that individual structure or property.

This latter type of quasi-judicial determination is one to which the “due process” protections of Kentucky Constitution Article 2 applies, according to the City of Louisville v. McDonald case. Those protections include a right to cross-examination of witnesses, a right to expect that the decisionmaker will develop a factual record and that will render specific factual findings grounded in that record, sufficient to support the ultimate finding of compliance or lack thereof with the Ordinance criteria.

The proposed revision to Code Section 32.260(G) creates a discretionary power in the Metro Council to choose to review, or allow to become final through inaction, a recommendation of landmarks designation for a structure or property. No standards are provided to guide that exercise of discretion by the Metro Council (i.e. which cases are reviewed), and neither a process nor standards are provided to guide review once a decision is made to review a designation recommendation. The absence of any legal standards to guide the Metro Council decisions, and to assure that any review is based on the record and free of extraneous information or influence, will likely subject any decision other than affirmation of the recommended designation, to judicial challenge under Kentucky Constitution Article 2 as being arbitrary governmental action.

The current version of the ordinance seeks to address this issue in part, providing that absent a hearing conducted by Metro Council or a committee of the Council, that the review will be limited to the record. The ordinance fails to provide, however, any criteria or boundaries for what the Council or a Committee may consider if a hearing is held, opening the possibility that a decision by the Commission squarely in accord with the criteria outlined in 32.260(E) would be overturned, modified, or conditioned by Metro Council for reasons wholly unrelated to the enumerated criteria.

Additionally, the proposal could result in a plethora of actions seeking review, since Code Section 32.263 still provides for judicial review of the Landmarks Commission’s final action, so that a decision recommending landmark status by the Commission would be potentially subject to a separate judicial challenge from the Council’s disposition of the recommendation.

The Council does not believe that the selective review process proposed in the Ordinance will result in better decisions as to the eligibility of a structure or property for designation as a local landmark, and believes that the current process is far more likely to render predictable decisions free of political considerations.

If a majority of the Metro Council believe that a change is necessary, then the process for requesting Metro Council review should be detailed, with the burden on the complaining party to provide reasons for seeking review that are directly related to the compliance of the Commission with the enumerated criteria for designation or nondesignation, and standards must be adopted to bound the Metro Council re-evaluation of the Commission’s decision. The current proposal falls far short of providing those due process protections.

For these reasons, and in order to assure that the designation of a structure or property as a landmark is guided by the criteria in the ordinance and on the basis of a fully-developed factual record, I recommend that the proposed revision to Code Section 32.260 not be advanced in its current form to the full Council.

Cordially,
/s/
Tom FitzGerald
Director

Cc: Hon. Greg Fischer

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