SAVE OUR ISLAND Legal information
October 2:
City Council Via Facsimile to (906) 847-6430
City of Mackinac Island
7358 Market Street
Mackinac Island, MI 49757-0455
Re: Preservation of Historic Structures
Dear Mayor Doud and Aldermen:
We represent Save our Island, which is a non-profit organization founded by residents of Mackinac Island for the purpose of preserving the Island’s unique historic identity. On behalf of Save our Island, I urge the City Council to enact a moratorium on the further demolition of structures on Mackinac Island until a complete study can be completed on the effects of such demolition to the historic identity of the Island.
It is well known by municipal planners across the State of Michigan that a moratorium can be a very effective tool for ensuring that certain activities will not harm the public health, safety and welfare of their residents. This is especially true when considering the historical value of certain areas or structures. Section 14 of the Local Historic Districts Act (PA 169 of 1970) even encourages municipalities to declare moratoriums in the event a pending project would irreparably harm a structure located within a proposed historic district. The United States Supreme Court supports moratoriums and has held that they “are an essential tool of successful development” and are widely used to “preserve the status quo while formulating a more permanent development strategy.” Tahoe-Sierra Preservation Council v Tahoe Regional Planning Agency, 535 US 302, 337-338 (2002).
Given the recent concerns that have been raised by the proposed demolition of the McNally Cottage and other similar buildings with historic significance on Mackinac Island, a moratorium will ensure that the overall impact on the heritage of Mackinac Island will have been thoroughly evaluated prior to reaching a decision. Importantly, the owner of the McNally Cottage has stated publicly that he has no intention of demolishing the McNally Cottage for 1-2 years; therefore, a moratorium will not have a detrimental impact on the owner.
The owner of the McNally Cottage may try to argue that he has a right to demolish the Cottage because he filed his zoning application prior to enactment of the moratorium or enactment of an historic preservation district and therefore has a “vested right” to demolish the Cottage. This argument has no legal merit.
The extent of the owner’s investment in the McNally Cottage is the acquisition cost and the Michigan Supreme Court has unequivocally held that the mere investment in the acquisition of land for an intended use is not sufficient to create a vested right. Detroit Edison Co. v City of Wixom, 382 Mich 673, 685 (1969). Moreover “a right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws.” Minty v Bd. of State Auditors, 336 Mich 370, 390 (1953). Most importantly, the need to preserve the history and heritage of Mackinac Island is far bigger than any one property owner or developer.
The owner of the McNally Cottage may also argue that the McNally Cottage is a nonconforming structure, has no historical significance and is not worth saving. Pursuant to Section 2 of the Local Historic Districts Act, if the McNally Cottage contributes to any one of the following benefits, it should be considered for preservation during a moratorium:
- It will safeguard the heritage of Mackinac Island by preserving 1 or more historic districts on Mackinac Island that reflect elements of the Island’s history, architecture, archaeology, engineering, or culture;
- It will stabilize and improve property values in each district and the surrounding areas;
- It will foster civic beauty;
- It will strengthen the local economy; and
- It will promote the use of historic districts for the education, pleasure, and welfare of the citizens of Mackinac Island and of the state.
Preserving the heritage of Mackinac Island cannot be negotiable and this City Council has the opportunity to play an important part in shaping the future of Mackinac Island. Accordingly, we urge you to adopt a moratorium on demolitions on the Island in order to thoroughly evaluate the impact that such demolitions will have on the future of Mackinac Island. Please contact me if you have any questions regarding our concerns. We appreciate your attention to this important matter.
Very truly yours,
RHOADES McKEE
Eric R. Starck
cc: Save our Island
Thomas Evashevski (via fax only)
October 19:
City Council Via Facsimile to (906) 847-6430
City of Mackinac Island
7358 Market Street
Mackinac Island, MI 49757-0455
Re: Preservation of Historic Structures
Dear Mayor Doud and Aldermen:
When making important decisions that could potentially impact a community for decades, it is helpful to study what other communities have done when faced with nearly identical situations. In the City of Ann Arbor, a developer is currently seeking to demolish seven homes in a two block area (a copy of the relevant article is attached). Concerns were raised by the citizens about the historic significance of the homes that are to be demolished. In response to those concerns, on August 17, 2009, the Ann Arbor City Council passed a Resolution (a copy is attached) that established a study committee to examine the two block area and simultaneously declared a moratorium on all “construction, addition, alteration, repair, moving, excavation or demolition” in the proposed two block district. The establishment by the City Council of the “proposed historic district,” which triggers the City Council’s ability to declare a moratorium, was accomplished by authorizing the study committee to examine the proposed area.
To the extent there is any question whether the Mackinac Island City Council can itself establish a “proposed historic district” (and simultaneously enact a moratorium) or whether only the study committee can establish a “proposed historic district,” the actions taken by the Ann Arbor City Council make it clear that a City Council can establish a “proposed historic district” by directing a study committee to examine a particular area and simultaneously declare a moratorium while that examination is being performed.
In Ann Arbor, it is obviously premature to conclude whether the at-risk homes have historic value. The City Council simply declared a moratorium so that the study committee could complete its examination and confirm whether or not the homes have historic value that warrants protection. The actions taken by the Ann Arbor City Council are conservative, prudent steps that would withstand the scrutiny of a legal challenge. By following this framework, the Mackinac Island City Council can be comfortable that it is acting in a reasonable and diligent manner.
While it seems unnecessary at this early stage in the process to respond to questions regarding the impact of a historic district that may be created in the future, I was prompted to do so after hearing the threats and misstatements made by Ira Green at the October 14th City Council Meeting. First, Mr. Green attempted to create public resistance at the meeting by stating that when the proposed Historic District Ordinance is passed, historic districts could be created at-will without first holding a public hearing. Section 3(2) of Act 169 of 1970 (Local Historic Districts Act) clearly requires the study committee to hold a public hearing prior to making any recommendations with regard to the creation of historic districts.
Next, Mr. Green attempted to threaten the City Council by stating that the creation of a historic district would create a “taking” situation for any property with nonconforming structures, which would require the property owners to be compensated. This threat is premised on the misguided assumption that nonconforming structures in a historic district cannot be used and are therefore of no value. Article 5 of the Zoning Ordinance provides that Class A nonconforming structures may be improved as of right so long as such improvement does not exceed 50% of the replacement cost and improvements may be made that exceed 50% of the replacement cost with permission by the Planning Commission. Moreover, Section 14 of the proposed Historic District Ordinance permits demolition in a historic district if the structure (1) is a hazard to public safety; (2) will deter a major improvement program that will be of substantial benefit to the community; (3) will cause undue financial hardship to the property owner due to an action beyond the owner’s control; or (4) has lost its historic significance.
Mr. Green’s threat that the creation of a historic district will prevent him from either improving or demolishing the McNally Cottage is simply not true. In addition, it is disingenuous for Mr. Green to argue that a historic designation for the McNally Cottage would impair the value of the property given the fact that Mr. Green acquired the property with full knowledge of its deep history and that its centennial anniversary was acknowledged by the State of Michigan in 1989 in a special tribute. As noted by Mayor Doud at the October 14th meeting, Mr. Green knew that he was acquiring a structure with a long and unique history.
Before any decisions can be made with regard to the creation of specific historic districts, and before the pertinent questions can be answered regarding historic preservation in general, the City Council must first adopt the proposed Historic District Ordinance, enact a moratorium, and request that the study committee evaluate one or more potentially significant areas on Mackinac Island. These initial steps will confirm whether historic preservation is warranted on Mackinac Island. We appreciate your attention to this important matter.
Very truly yours,
RHOADES McKEE
Eric R. Starck
cc: Save our Island
Thomas Evashevski (via fax only)
November 3:
City Council Via Facsimile to (906) 847-6430
City of Mackinac Island
7358 Market Street
Mackinac Island, MI 49757-0455
Re: Preservation of Historic Structures - Moratorium
Dear Mayor Doud and Aldermen:
On Wednesday, November 4, 2009, this City Council has an opportunity to take an important step towards considering whether the history of Mackinac Island is worth preserving. It is important to emphasize that Save our Island is not asking this City Council to declare that the McNally Cottage is part of a historic district; instead, Save our Island is simply asking this City Council to investigate whether the McNally Cottage is a part of Mackinac Island’s history that should be preserved. Such an investigation requires a moratorium to be in place in order to prevent demolition prior to completion of the investigation.
In determining whether to enact a moratorium, this City Council has the benefit of relying on the promise that the owner of the McNally Cottage made to not demolish the McNally Cottage for 1-2 years, which would negate any argument that the moratorium would negatively impact the McNally Cottage. However, despite the developer’s promise, a moratorium is prudent since the McNally Cottage could be demolished with only limited advance warning. This City Council would also be acting prudently and conservatively by enacting a moratorium for the following reasons:
1. The Owner of McNally Cottage is Confident Historic Preservation on the Island will be Defeated. The owner of the McNally Cottage has even requested that a moratorium be enacted now, but for different reasons. The owner wants the moratorium enacted now so that it will expire by the spring of 2010 because he is confident that a historic district will not be approved by this City Council and that he will be free to demolish the McNally Cottage by the spring of 2010. The owner of the McNally Cottage believes this City Council will sit on its hands with regard to historic preservation and that all hurdles to demolition will be removed by the spring of 2010. The historical relevance of this 120 year old building to Mackinac Island deserves to be investigated.
2. A Moratorium May Include as Much or as Little Property as this City Council Deems Necessary. There is a common misconception associated with moratoriums that non-historic properties will be unnecessarily burdened by a moratorium or that improvements to property will be prohibited. There is no set formula for moratoriums created pursuant to the Local Historic Districts Act. Such moratoriums can be applied to 1 property or 100 properties and can apply to demolition only or they can apply to all construction, additions, alterations, repairs, excavations, demolitions, etc.
This City Council has the discretion to apply a moratorium only to the McNally Cottage and only to prevent premature demolition, assuming only the McNally Cottage is currently in danger of being permanently demolished. Moreover, if a moratorium impacts multiple properties, this City Council has the authority to lift such a moratorium as to specific properties. This safeguard will ensure that property owners are not unnecessarily burdened by a moratorium.
This City Council has been elected to protect Mackinac Island. There can be no question that creating a temporary moratorium will not harm Mackinac Island. However, not enacting a moratorium in the face of demolition can irreversibly harm Mackinac Island. Your attention to this important matter is appreciated.
Very truly yours,
RHOADES McKEE
Eric R. Starck
cc: Save our Island
Thomas Evashevski (via fax only)
November 17:
City Council Via Facsimile to (906) 847-6430
City of Mackinac Island
7358 Market Street
Mackinac Island, MI 49757-0455
Re: Preservation of Historic Structures - Moratorium
Dear Mayor Doud and Aldermen:
On behalf of Save Our Island, I am writing to request that you give effect to the Historic District Ordinance of the City of Mackinac Island that was enacted by a majority of the City Council in October, 2009 (the “Historic Ordinance”). The difficult step of enacting the Historic Ordinance has been completed. The first step in giving effect to the Historic Ordinance is to evaluate whether there are historic structures on Mackinac Island that contribute to the heritage of Mackinac Island and should be preserved. In my experience, this level of evaluation takes 6 – 12 months to complete. Moreover, while such an evaluation is ongoing, the historic district study committee must be assured that potentially valuable historic structures are not demolished.
Section 19 of the Historic Ordinance authorizes this City Council to declare a moratorium if “the City Council determines that pending work will cause irreparable harm to resources located within an established or proposed historic district….” While it is clear that a moratorium cannot be declared until a proposed historic district has been identified, both the Historic Ordinance and the Local Historic Districts Act defines a proposed historic district as “an area…that is under review by a committee or a standing committee for the purpose of making a recommendation as to whether it should be established as a historic district or added to an established historic district.”
An area can become “under review” in one of two ways. The historic district study committee can identify such an area on its own initiative or, as is most common, the City Council can, by resolution, identify an area that it would like the historic district study committee to review. Because it is not prohibited by the Local Historic Districts Act, many municipalities will, in the same resolution, identify an area to be studied by the committee and declare a moratorium on demolition in that identified area. A sample resolution accomplishing these two actions simultaneously is attached as Exhibit A.
As you are aware, on October 20, 2009, the Mackinac Island Planning Commission granted site plan approval for the redevelopment of the McNally Cottage property, which included the demolition of the McNally Cottage. A zoning permit was simultaneously issued for the demolition and redevelopment by the Mackinac Island Zoning Administrator. Less than two (2) weeks after the permits were granted, the owner of the McNally Cottage property applied for and was granted a demolition/relocation permit for the McNally Cottage. As a result of these approvals, the demolition of the McNally Cottage could begin immediately.
An option for this City Council, given the irreparable harm that could be caused by the demolition of the McNally Cottage if the study committee ultimately concludes that the McNally Cottage is a valuable resource for Mackinac Island, is to temporarily identify only the McNally Cottage property as a proposed historic district for the study committee and declare a moratorium to prevent the demolition of the McNally Cottage. The Historic Ordinance merely requires that a proposed historic district be an “area” and the term “area” is defined by Black’s Law Dictionary, 6th ed. as “[a]ny plane surface, also the inclosed space on which a building stands.” Therefore, the term “area” can be applied to a single property.
We encourage you to give effect to the Historic Ordinance at the upcoming meeting and declare a moratorium while the McNally Cottage property is under review by the study committee. We further encourage you to discuss this important issue at the upcoming City Council meeting in order to keep the citizens of Mackinac Island fully informed and to help deter the dissemination of inaccurate information with regard to the McNally Cottage and the Historic Ordinance.
Very truly yours,
RHOADES McKEE
Eric R. Starck
cc: Save Our Island
Thomas Evashevski (via fax only)
December 15:
City Council Via Facsimile to (906) 847-6430
City of Mackinac Island
7358 Market Street
Mackinac Island, MI 49757-0455
Re: Preservation of Historic Structures - Moratorium
Dear Mayor Doud and Aldermen:
On behalf of Save Our Island, we are again writing to request that you give effect to the Historic District Ordinance of the City of Mackinac Island that was enacted by a majority of the City Council in October, 2009 (the “Historic Ordinance”). After reviewing the letter recently submitted to the City Council by Ira Green’s legal counsel, Neil A. Marzella, it became apparent that this City Council can no longer afford to remain silent with regard to the demolition of the McNally Cottage.
First, Mr. Marzella has opined that it would be “probably illegal” to apply the emergency moratorium authorized in the Historic Ordinance to only the McNally Cottage. However, a review of the text of the Historic Ordinance proves the opposite to be true. Section 1.19 of the Historic Ordinance is intended to protect individual resources (e.g. individual historic structures) when current work or actions threaten a particular resource. The emergency moratorium, by its nature, is appropriate only for resources that are threatened by pending work and not resources merely sitting idle. Mr. Green even went so far as to seek and receive a demolition permit for the McNally Cottage (despite his intention to delay demolition of the McNally Cottage until the fall of 2010) to encourage a moratorium because he knew that the resource would not be eligible for a moratorium until a demolition permit was granted and the demolition became “pending.” Moreover, the McNally Cottage is the only historic resource on Mackinac Island that has been granted a demolition permit, and is therefore the only resource eligible for an emergency moratorium.
Mr. Green sought “pending” status on the demolition of the McNally Cottage so that an emergency moratorium could be enacted by the City Council and allowed to expire prior to his scheduled demolition date in the fall of 2010. Due to the large amount of public support in favor of saving the McNally Cottage, Mr. Green knew that it was likely an emergency moratorium would be enacted. However, when the emergency moratorium was inexplicably not enacted at the time the demolition permit was granted in November 2009, Mr. Green became concerned that an emergency moratorium may not be enacted in time for it to expire prior to the anticipated demolition date. This concern precipitated the recent letter from Mr. Marzella.
Second, as both Mr. Green and I have previously pointed out to this City Council, the longer an emergency moratorium is delayed, the more likely it is that Mr. Green will acquire a vested interest in the demolition and an emergency moratorium will not serve its purpose of being able to evaluate the historical significance of the McNally Cottage prior to demolition. While it could be argued that Mr. Green has chosen to move forward at his own risk by incurring architectural and engineering fees given that he is keenly aware that enactment of an emergency moratorium is likely and because demolition is not scheduled to occur until the fall of 2010, continued unnecessary delay will only make enactment of a moratorium more difficult.
This City Council has a history of acting cautiously and prudently, but time is set to expire with regard to the McNally Cottage. Absent a moratorium, the impact of the McNally Cottage’s demolition on the historic culture of Mackinac Island will never be known. The citizens of Mackinac Island deserve to have the City Council discuss, in an open meeting, the merits of an emergency moratorium with regard to the McNally Cottage. Please contact me if you have any questions regarding this request.
Very truly yours,
RHOADES McKEE
Eric R. Starck
cc: Save Our Island
Thomas Evashevski (via fax only)
CITY COUNCIL MET JUNE 2, 2010 at 5:00pm
Here is a response from our lawyer relating to a legal conclusion made by a city council member who characterized a moratorium affecting only one historic resource as an illegal "spot moratorium." He was presumably comparing it to spot zoning, which is illegal and is the act of zoning one property differently than the surrounding properties. This analogy has no application to historic districts because the applicable statute expressly allows historic districts to contain a single building and treat it differently from other neighboring buildings so long as the single building meets the criteria set forth in the statute. The following is a response to the “spot moratorium” comment and the City’s ability to create a single resource historic district.
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ILLUSTRATIONS by EXAMPLES of numerous cases of single structures having moratoriums placed upon them, to be converted to viewable pages...
These are all meant to demonstrate that the legal advice meant to aid the city in its process last fall was legally correct.
Following is an answer to any follow-up question to the above:
MEMORANDUM |
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INTRODUCTION |
include contiguous properties. It is sufficient for the historic district to be comprised of parcels related by history, architecture, archaeology, engineering or culture regardless of their location to one another. |
Overlapping Historic Districts |
Nothing in the LHDA prohibits the creation of two overlapping historic districts. While it is rare, there are examples of municipalities across the United States that have created overlapping historic districts. Overlapping historic districts generally arise where a resource is significant based on history and, for example, |
architecture. A resource could sit within a historic district with other structures that are historically related and, at the same time, it could also sit within a historic district with other structures that are architecturally related, but not historically related. |
CONCLUSION |
According to the LHDA, existing historic districts may be modified to include additional resources or to remove existing resources. Also, Historic Districts may overlap with other historic districts so long as each district includes resources that are appropriately related. |
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[END of follow-up legal analysis]
Our proposal would have been and still is, that a very good potential alternative way to set up historic districts, is by the a category of historic building related by history and culture. For example, one district, made up of non-contiguous B&B's, another of store buildings which were principally stores on their first levels from the same historic era, and typically had housing for the store keepers above or general housing, etc. Each district would be able to be expanded the same as a single one area district, however unlike such a district,with many widely different buildings contained within it, each such district would be able to have consistent rules within each, and participation of the property owners within the districts with similar use buildings and thus similar problems and concerns, such as the proposed Annex district, to allow these districts to best be administered with a sense of pride being taken in their maintenance, and a sense of common ownership of our heritage...
However, whether our suggestion has any merit, or not, can only be determined by the study committee, and is only one suggestion, as all buildings within any proposed district, must be related "by history, architecture, archaeology, engineering or culture." Only the surveys, historical reviews, and in-depth studies can reveal such.