Work continues on historic preservation ordinance

The Sussex County Council was split on Tuesday, Dec. 8, over the issue of a possible historic preservation ordinance that county officials have been discussing since the drafting of the county’s most recent comprehensive land-use plan.

As initially proposed, the ordinance would required a waiting period of at least 14 days before a non-agricultural building larger than 800 square feet in size and at least 80 years old could be demolished.

That period could be extended up to 45 days if the structure is deemed by the county’s historic perseveration planner to be of historical significance – to give the county time to document the building and help find someone who might be willing to move it to another location to preserve it.

As drafted, the demolition permits would be issued at the county permit counter, for a $100 fee, with a penalty of $300 recommended if a property owner failed to obtain a permit before demolition.

Historic Planner Dan Parsons said he should be able to make a determination of age and historic value relatively quickly if given photographs of a structure.

For those deemed to be of significance, the county would advertise the pending demolition within 14 days of receiving the permit application and would then obtain documentation, measurements and pictures, while attempting to locate buyers or parties to move the building, if possible.

In the documentation phase, measured drawings would be done, taking a day or two at the most, Parsons said, and then engineers would draw the structures up in a CAD program, “and we would have that, along with the photographs, for posterity.”

After 45 days, the county would issue a demolition permit, regardless of the structure’s historical value.

Noting concerns about the proposed $100 permit cost, Parsons said another possible option for the permit would be to charge no permit fee but have a penalty for failure to obtain a permit, “to have some incentive for people to obtain a permit.”

Perhaps only five to 10 such structures are likely to come up for demolition in a given year, he said, so the cost to the county for the advertising and staff time would be minimal.

“In Sussex County, there are not many occasions where it would stop someone from doing what they wished with their property,” Parsons assured the council. “The purpose of ordinance is to document what it is.”

“The Canon-Masson property should at least be documented before it’s destroyed,” he offered as an example. Another example, he said was one structure that had been part of a University of Delaware architecture survey, in which two tenant homes built between 1790 and 1830 had been joined together.

“This was a rare structure that the owner is renovating because his mother was born there,” Parsons noted. “For structures like that, this is what this ordinance is trying to connect to.”

In fact, Parsons said most of the structures that are significant inside Sussex County are located within municipalities, due to post-Civil War growth patterns, and wouldn’t be impacted at all by the county’s proposed ordinance.

Discussion focuses on merits of preservation and concerns over government

With the issue of the historic preservation ordinance returning before council members on Tuesday, the wedge of how to implement such an ordinance made differing attitudes between the council members clear.

“We’ve got to give people some credit that they can decide this on their own. … Don’t you think they know it’s historic?” asked Council Member Sam Wilson. “What about their property rights?” he inquired.

Parsons emphasized the focus of the proposed ordinance. “We want to document it before it’s destroyed.”

“And 45 days doesn’t seem to be excessive,” countered Council Member George Cole. “Once it’s destroyed, you can’t get it back.

“A lot of people find some value in it,” Cole added.

Cole said he didn’t think the proposed ordinance went far enough in offering an enforcement method for the intended preservation aspects.

“If someone wants to do demolition on any structure, is there a permit required (now)?” asked Cole, who received a reply in the negative.

“Someone is going to have to be knowledgeable enough about this property to know it’s of a certain age,” Cole continued. “Why don’t we look at a demolition ordinance that would require a permit for anybody demoing a property?” he suggested. “It doesn’t cost them a dollar, but then we would have a paper trail.”

“It sounds good, but it’s not effective,” he said of the ordinance as drafted.

Parsons pointed out that the county had adopted the International Building Code, under which a demolition permit is a requirement. “But we don’t enforce it,” he said.

“The rule should be, if you’re going to demo a property in this county, you should come get a permit,” said Cole. “Most people are going to say nothing and demo the property, and, to me, this is just ineffective.”

Inefficiency was also on Wilson’s mind, though oriented toward the inconvenience to the property owner that a mandatory delay in demolition would cause – and, to his mind, to little end.

“You’ve got 45 days, and you’re forcing me to come and get a permit,” said Wilson. “In 45 days, what can I do? … I can destroy this building. I can take her down. What has the public gained for messing me around for 45 days? … Technically, they can’t stop me.”

Noting that the delay was intended to help preserve some of these structures or at least records of them, Cole argued that, “It has been deemed to be important to preserve some of our heritage.”

“Some of them will pay to come here,” asserted Council Member Joan Deaver. “Tourists will pay to come here and see the history.”

“Then maybe we should pass a law and go buy them,” replied Wilson, with sarcasm.

Parsons argued that the maximum 45-day wait isn’t much of an inconvenience. “In 45 days, he gets the permit and…”

“And we’re back where we started,” interrupted Wilson. “I could say it’s 79 years old,” he pointed out.

Council President Vance Phillips was also concerned about the added requirement for demolition permits that Cole had proposed.

“I’m concerned about adding another layer of government,” he said.

“This one’s not really putting a burden on anybody,” Cole replied. “But it’s putting 45 days to give the government an opportunity to document something, which is not unreasonable to ask of somebody in this time and age.”

“It wouldn’t be much,” Phillips countered, “but, incrementally, we create a lot of layers of government that become a burden. If you want to tear down a structure – in the eyes of some people – you should have to get a permit.”

“You should have a little more respect for the place that you live,” Cole retorted.

Import of comp-plan elements considered

Council members on Tuesday also focused on the ordinance’s place in the county’s comprehensive land-use plan, which calls for the council to deal with certain issues that include historic preservation.

“This is part of the land-use plan, so it’s already been adopted?” inquired Council Member Michael Vincent.

It’s a sore subject for Cole, who has spent years under the prior council trying to have implemented ordinances that supported elements of updated comprehensive plans, only to have his measured defeated by a council majority perceived by many as pro-development, including Phillips.

“We adopt this land-use plan, and then, when we start working on each individual ordinance, it gets changed,” Cole lamented.

“The land-use plan has many suggestions,” Phillips said pointedly. “We are required to consider them – that’s all, consider.”

“Show me the word ‘consider,’” replied Cole.

County Administrator David Baker noted that, historically, some ordinances mentioned in the comprehensive plan updates have been approved and some were not approved. “The planning department presents different options to the county council for their consideration,” he said. “The land-use plan does not provide all the details of what it would say.”

Phillips argued on Tuesday for a different path on historic preservation – a much more voluntary one.

“We could create an ordinance that provides the public the opportunity to have the county historic planner come out and document their property and make suggestions,” he said. “That would do everything you want this to do, without the fines and fees. There’s no reason this couldn’t be a voluntary opportunity.

“The permit takes time on the part of the public,” Phillips added, “and not everybody has a lot of time.”

Phillips said he also felt the interns that were proposed to help Parsons document the structure posed a risk to county coffers.

“Interns turn into part-time employees, who turn into full-time employees,” he asserted. “Mr. Cole and Ms. Deaver feel that, just because the towns do it, we should do it. It’s our job at this point to think in reasonable terms about the impact this is going to have on the public.”

“There’s a lot of working folks out there to whom $300 is important,” he added. “Why do we create laws we cannot enforce?”

“There are some people who only want to preserve farmland,” Cole replied. “There are other things in this county worth preserving: wetlands, open space and historical structures.

“We should be a document trail, so we can follow this stuff for our community,” he continued. “I don’t think what we have in front of us does the job. We ought to look at a demo permit that you can get online. It doesn’t cost a dime but does start a process that we know what’s going on out there in the county. I don’t think it’s a big burden or a lot of red tape. It’s one page. It’s not a big burden for anyone to figure out.”

“We’ve just got to watch ourselves that government doesn’t get more involved in our lives and tell us what we can and can’t do,” put in Wilson. “George [Cole] says, ‘just put your foot in the door, it’s just a little thing,” he added, referencing EPA regulations that he said were recently responsible for driving “the Delaware City refinery out of town.”

Phillips recommended Cole take ownership of the issue and work with staff to develop a new draft, but Cole said the council’s traditional method had been for council members to offer input to the staff to continue to refine a pending ordinance, and he would prefer – with support from three council members – to use that process.

In the end, it was Vincent who took on the leadership role for the ordinance, saying he would work with staff to develop it into something that could be introduced for a possible vote. A public hearing would be held on any such ordinance before the council could vote to adopt it.