Ind. Court Of Appeals, No. 22A01-1108-PL-365, March 22, 2012: Owner in historic district not entitled to actual notice of potential designation of district; replacement of original wood siding with vinyl siding is “conspicuous change” requiring Certificate of Appropriateness; designation was not inverse condemnation.
The New Albany Historic Preservation Commission (HPC) and the City of New Albany (collectively, the NAHPC), designated an area as a historic district. Bradford Realty, Inc.’s (Bradford) is in the historic district. The City published a notice of public meeting on the issue of the proposed designation in a local newspaper. The historic preservation ordinance required property owners to request a Certificate of Appropriateness (COA) from the HPC prior to commencing work on most external modifications of a property located within the historic district. Bradford replaced original wood siding on its building with vinyl siding without obtaining a COA. Bradford alleged the historic district designation required actual notice to him, that the designation did not require a COA for the vinyl siding; and that in any event the designation was a taking without compensation.
The Court concluded that the City’s adopting of the ordinance designating the historic district was a legislative act, not an adjudicative act, and therefore did not require actual notice to each owner of property within the area of the potential designation pursuant to the United States Constitution’s due process provision. The Court found the designation was legislative action under the test set out in the decision in LC & S, Inc. v. Warren Co. Area Pln. Comm., 244 F.3d 601, 603 (7th Cir. 2000) “The City’s ordinance enacting the downtown district as historic was prospective and general in nature. The ordinance purports to regulate only future conduct to be consistent with the provisions of the historic preservation ordinance; it does not impose fines for past behavior or requires past improvements to be modified in any way. It is generally and equally applicable to all property owners within its boundaries.”
The Court then held that Bradford was required to obtain a COA when it replaced the property’s original siding with vinyl siding. The ordinance states in part that a COA is required for”a conspicuous change in the exterior appearance of any historic building”. The trial court had held that no COA was required, based its conclusion on the fact that the replacement was “not negative or harmful to the [d]istrict’s purposes, or contrary to the purposes of [the HPC][.]” The Court of Appeals wrote, “Unlike the trial court’s interpretation, “conspicuous” does not carry a negative or harmful connotation; rather, the meaning relates to visibility or likelihood of being seen.” Because the Court deemed the vinyl siding a visible change in the exterior of the building, it held it was a conspicuous change and therefore a COA was required.
In a dissenting opinion on the COA question, a Judge wrote that because “conspicuous” modifies the term “change”, the ordinance means that “a COA is necessary if the owner seeks to do something that will effect a change that is clearly visible or obvious. … Perhaps there was a time when all vinyl siding was markedly different from wood in appearance, but that is no longer the case.”
On the inverse condemnation question, the Court found that the ordinance did not fail the tests enumerated in Ragucci v. Metro Dev. Comm’n of Marion Co., 702 N.E.2d 677, 683 (Ind. 1998): “Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex set of factors, including: (1) the regulation’s economic effect on the landowner; (2) the extent to which the regulation interferes with reasonable investment-backed expectations; and (3) the character of the government action.”
The decision is available at http://www.in.gov/judiciary/opinions/pdf/03221201par.pdf.