BY JAIMIE JULIA WINTERS
While the no-demolition moratorium for Montclair homes is set to expire on Monday, April 15, township attorney Ira Karasick has been tasked with drafting a no-knockdown ordinance “with some teeth.”
Officials first issued the moratorium on the razing of one-, two-, three- and four-family homes on Feb. 15 due to public outcry following the razing of two homes on Undercliff and Lloyd roads. The council extended the moratorium after rejecting a demolition-review ordinance penned by Karasick, and directing him to draw up a stronger a no-knockdown law instead.
The homes at 14 Undercliff, built in 1865, and 172 Lloyd, built in 1907, were razed in early February after demolition permits were issued Feb. 5, but prior to zoning board review of an application to build a 60,000-square-foot home on the lots. The demolitions were also not reviewed by the Historic Preservation Commission, and no public notice was made.
Following the demolition of the Marlboro Inn in 2007, Montclair created a “time-of-application rule,” a waiting period of one year for demolition permits. The rule delayed developers from razing homes 75 years or older until the Historic Preservation Commission could investigate the history of the building, analyze its architectural features and consider whether it should be an official, protected historic landmark. Property owners who wanted to raze a home had to explore alternatives such as finding another buyer or someone to move the home before demolition approval was granted.
In 2012, the rule was pulled from the books due to changes to the New Jersey’s municipal land use law and planner Janice Talley suggested the local rule was no longer valid.
The state’s land-use law advises that after “the appropriate local authority deems an application for development is complete or at the time the application is scheduled for hearing, whichever comes sooner, the appropriate local authority must refer the application to the historic preservation commission if the project crosses a historic zoning district or historic site.”
The Historic Preservation Commission acts as an advisory capacity only to the appropriate local authority on the application, the law further states.
At a March 5 council meeting, Karasick presented the council with a draft ordinance that would require demolition oversight from either the Historic Preservation Commission or planning or zoning boards. In the draft, demolition of homes listed in the Historic Preservation element, of which there are 4,800, and all structures in historic and potential historic districts — such as the Estate Section — would require a certificate of appropriateness triggering a review.
The two houses razed in February were listed on the Historic Preservation Element and therefore would have prompted a review if an ordinance had been in place, said Karasick.
But council members wanted stronger language and directed the township manager to extend the moratorium another 30 days while Karasick drafted another ordinance.
Karasick warned that even state, local and national landmarks are not safe from demolition.
“We can only delay it,” he said, adding that refusing a demolition could be challenged in court due to property rights.
State land-use laws do not allow a municipality to stop a homeowner from ultimately demolishing a structure, but a perusal of local land-use laws shows that many municipalities include demolition regulations that delay razings through a land-use planning process, include Historic Preservation Commission oversight on demolition of homes certified as historic or as landmarks or in historic districts, and require advance public notice for demolitions. Some go as far as to trigger historic preservation commission oversight on all demolition applications — historic or not and even in the case when the replacement building will not require variances.
In a National Trust preservation law publication “Protecting Potential Landmarks Through Demolition Review” Julia H. Miller gives an overview of “Demolition Review Laws” and “Demolition Delay” provisions used in preservation ordinances.
Demolition review laws are typically separate from historic preservation ordinances. They prevent the demolition of any building or structure over a certain age, or any building or structure identified for protection — regardless of significance — for a specific period of time, to allow for a determination of historical or architectural merit.
Historic properties may or may not be designated as a landmark at the culmination of this process, Miller states.
“Given the vast numbers of older buildings in cities and towns across the United States, it is virtually impossible for a community to identify all buildings that should be protected under a historic preservation ordinance in advance. By establishing a referral mechanism, communities can be assured that buildings meriting preservation will not fall through the cracks. The delay period provides an opportunity for the municipality or other interested parties to negotiate a preservation solution with the property owner, or to find persons who might be willing to purchase, preserve, rehabilitate or restore such buildings rather than demolish them,” she wrote.
Demolition delay provisions in historic preservation ordinances are used to prevent the demolition of buildings or structures, usually ranging from six to 24 months. During that time, the preservation commission, preservation organizations and residents can explore demolition alternatives, such as finding a purchaser or raising money for its rehabilitation.
“These provisions are typically used by communities [in states] that lack the authority to deny demolition permits,” she writes.
More New Jersey towns are now requiring more demolition permits oversight.
Millburn’s demolition ordinance delays razing for 180 days. All demolition permits of historic landmarks or structures within a historic district trigger a certificate of appropriateness to be heard by its Historic Preservation Commission. If the commission disapproves of the demolition, the owner may only demolish the structure if certain requirements have been fully met, including a zoning board appeal, making a bona fide effort to sell the property for a reasonable price, and making a public notice on the exterior premises and published in the official newspaper of the township.
In Princeton, any demolition permit to a historic structure is referred to the historic commission for a hearing. Residents within 200 feet of the structure are notified. If the town HPC denies the demolition application, it can be appealed through the planning board. Demolition in an historic preservation zoning district is approved only if the structure cannot be put to a reasonable use and its preservation will impose an undue hardship on the applicant.
In February 2018, Jersey City issued a halt on all demolitions after preservations contended that historic homes were being razed and replaced by box-type structures and taking over the charm of historic neighborhoods. Developers sued the town over the moratorium. But in April, an ordinance was passed requiring that all demolition permits have oversight by a historic preservation officer. The officer employs an evaluation created by U.S. Secretary of the Interior to decide cultural, architectural or historical merit of the structure within 45 days of a demolition application.
In Plainfield, an application for demolition of any historic site or within a historic district triggers a certificate of appropriateness overseen by the historic preservation commission within 45 days.
Currently, Montclair’s Historic Preservation of the Master Plan specifies that the HPC should be made aware of, and is allowed to provide advice on, any development that could affect Montclair’s historic landmarks or that are in historic district triggering a certificate of appropriateness requirement. However, demolition associated with a development application approved by the planning board or zoning board of adjustment is exempt from the requirement for a certificate of appropriateness.