It is important to understand what is meant by ordinary repair and maintenance.  A Heights homeowner recently wanted to replace/reside the 117 siding on his home in one of the Heights Historic Districts with Hardiplank.  Even though the economics of this made sense due to lower maintenance in the future, lower insurance premiums for a Hardiplank sided house versus a wood sided house, his request was denied because there is not a Hardiplank product that looks identical to the 117 siding currently on his home. 
     A homeowner can no longer wait 90 days and do as they wish.  They can appeal (first to the Planning Commission and then to City Council) by filing a written notice within 10 days following the date the HAHC renders its decision stating the grounds of the appeal.  The Planning Commission will then consider their appeal at the first regularly scheduled meeting which occur once each month.  If the Planning Commission does not make a decision on the appeal within 30 days following the Commission’s hearing on the appeal, then the decision of the HAHC will stand.
     If the homeowner is not satisfied at this point, they may go through a similar process of appeal with City Council and their decision “shall be final and exhaust the applicant’s administrative remedies.”
     This process is outlined in Sec. 33-253 on page 35 of the HISTORIC PRESERVATION ORDINANCE AS AMENDED 10/13/2010.  Obtain your own copy at http://goo.gl/Q1cP.

It is important to understand that the HAHC decisions are not persuaded by economics.  If you have an old home in a historic district and you do all the work to obtain quotes for renovation and/or repairs and you figure out it is cheaper to tear the house down and build an exact replica, you will not be granted permission to do this because you will be destroying a structure in an historic district, unless the HAHC considers the property a noncontributing structure.  Also, being “built to the same specifications as the building that was destroyed” means the reconstruction is built within the same footprint and has the same exterior features as the previous structure. 
     On a positive note, a COA is not required for reconstruction of a structure that was completely or partially destroyed by fire, natural disaster or other damage not intentionally caused by the owner of the structure only if the reconstruction is built within the same footprint and has the same exterior features as the previous structure.  See Sec. 33-237 (b) on page 22 of the HPO.

Thank goodness!

We have design guidelines for the Houston Heights.  There are none at this point for Norhill or Woodland Heights.  These have yet to be developed. 
     The Houston Heights design guidelines were adopted in December 2008.  View them at http://goo.gl/z6Zfi.

The above statement means new construction must be compatible with existing structures in setback, proportions, roofline and height, but not style.
     If no particular architectural style is required, I wonder if everyone is aware that the HPO isn’t going to prevent “non-Heightsy” homes from entering the neighborhood.   I’ve heard many people say they don’t want this or that type of house built, referring to style, the HPO as written, doesn’t prevent any style of house from being built.  So that Tuscan, modern or glass house can still be built.  See Sec. 33-242, pg. 29 for new construction in a historic district.  The last statement of this section states:

Nothing in the foregoing shall be construed to require or impost a single architectural style in any historic district.

November 11, 2010 Correction:
I was able to speak with Randy Pace at the Woodland Heights Civic Association meeting this past Tuesday evening, Nov. 9th, at Zion Lutheran Church on Beauchamp Street.  I asked for clarification on this because at least 2x during the meeting representatives from the City of Houston Planning Department (the two representatives were Randy Pace and Michael Schafer...I don't remember which one said it) stressed this point:  the HAHC does not mandate a particular architectural style.  If they don't, what's the point?  Why don't they?  If someone can build a glass house in the middle of an early 1900s neighborhood, what good is the HPO?   Mr. Pace's answer to me was they don't require a certain architectural style, just the roofline, window shapes (must be taller than they are wide) and necessity for front porches and the like.  So I asked him if he was telling me that then I could put corrigated tin on the side of a house or glass or some other non-Heightsy siding.  He said NO, that can't be done and would be denied.  The siding would need to be limited to what is already in the neighborhood on contributing structures such as wood or brick.  I said ok, so you really are defining an architectural style by mandating what can go on the side of the house...he said no.  I asked if people could build 2nd story balconies.  He said sure, on the back, not the front.  And he gave as an example the New Orleans style homes built here, they will no longer be allowed.  But it doesn't matter, I think most people would be relieved to find out that there is some architectural style control.  Question is, why is the city making themselves so hard to understand by talking around the direct questions?
.......................

The HPO also prevents many recent construction homes from being built now and in the future unless they are on lots larger than the typical 6,600 sq. ft. lot.  While we already had minimum lot size and building setback restrictions in place on many blocks and properties, the additional proportions, roofline and height restrictions now prevent many of the homes you have seen built in the last 10 years from being constructed now and in the future on the typical 5,000 or 6,600 sq. ft. piece of property.

     These types of additions are addressed in Sec. 33-241 (a) and (b), pgs. 25-27.
     Per the HPO, a second story camelback addition starting in the rear 50% of the original structure will be approved if it meets the other 11 guidelines in Sec. 33-241 (a), pg. 25.  Additions that do not meet these criteria are subject to approval by the HAHC after receiving recommendation by the Historic Preservation Officer, Randy Pace. 
     A side addition started in the rear 70% of the original structure will be approved if it meets the other 11 guidelines in Sec. 33-241 (a), pg. 25.  Additions that do not meet these criteria are subject to approval by the HAHC after receiving recommendation by the Historic Preservation Officer, Randy Pace. 
     The single most reason for additions being denied that were in the front 50% of the original structure (if going up) and the front 30% of the original structure (adding to the side) is that the better the new addition tied in with the old, and you could not distinguish that there had been an addition done at all, the more likely it was to be denied a COA.  There are another top 4 reasons out of the 11, but this post is already so long so….
     A rear addition is started in the rear, usually where the back yard used to be.  View pictures directly from the design guide of these acceptable additions at http://goo.gl/z6Zfi.  You can also view the entire HPO at http://goo.gl/Q1cP.

     To see an example of what they mean by “must be visually compatible with…, but not necessarily the same as” by reading the first response at the beginning of this post.

     The burden of proof to prove economic hardship is on the homeowner.  My questions regarding this are in italics below.  To date, only a handful of these types of exceptions are known to exist and that is being generous.  All these hardships were granted under the old criteria, which was more lenient than the guidelines adopted in the HPO dated October 13, 2010. 
     Sec. 33-247 (c), pg. 32 lists what is required for to obtain an economic hardship.

(c) Determination of an unreasonable economic hardship shall be based upon the following criteria:

(1) That the property is incapable of earning a reasonable return, without regard to whether the return is the most profitable return, including without limitation, whether the costs of maintenance or improvement of the property exceed its fair market value;

     So if it cost more to maintain or improve the property than I can sell the property for….who is going to compensate me for this loss?  To be in a historic district now means that the homeowner has lost the ability to make the best financial decision for themselves? 

(2) That the property cannot be adapted for any other use, whether by the current owner, by a purchaser or by a lessee, that would result in a reasonable return;
     What criteria is the HAHC using to determine what another use would be and whether or not someone would be willing to purchase/lease the property?  Who makes this adaption so the property can be used in a different fashion and who pays for this adaption?

(3) That efforts to find a purchaser or lessee interested in acquiring the property and preserving it have failed; and
     What constitutes failure?  Some houses take years to sell…and where does a lower price that the seller may not be interested in accepting fall into the equation?

(4) If the applicant is a nonprofit organization, determination of an unreasonable economic hardship shall instead be based upon whether the denial of a certificate of appropriateness financially prevents or seriously interferes with carrying out the mission, purpose, or function of the nonprofit corporation.

 (d) Determination of the existence of an unusual or compelling circumstance shall be based upon the following criteria:

(1) That current information does not support the historic or archaeological significance of the building, structure or object or its importance to the integrity of an historic district, if applicable;

(2) Whether there are definite plans for reuse of the property if the proposed demolition is carried out and what effect such plans have on the architectural, cultural, historical or archaeological character of the surrounding area; and

(3) Whether reasonable measures can be taken to save the building, structure or object from further deterioration, collapse, arson, vandalism or neglect.
     What are considered reasonable measures?  It is already stated in (c) (1) above that it is  without regard to whether the return is the most profitable return, including without limitation, whether the costs of maintenance or improvement of the property exceed its fair market value;

I don’t see how this has been implemented when you drive through Old 6^th Ward.  See a slide show of Old 6^th Ward at http://goo.gl/aSDj or drive it yourself.

As I am not a real estate attorney, I consulted one to explain it to me.  

Rob Taylor is an attorney in the Heights.  His view is as follows:

     In a public letter authored by Marlene Gafrick, dated October 29, 2010 she states that “Dissolution of a [historic] District means the loss of ALL current protections”.  This is simply not correct and very misleading.  While I am fairly certain that Mrs. Gafrick did not mean to mislead the homeowners/voters, this statement does exactly that and may have a profound effect on the outcome of the votes.  As a long time Texas Real Estate Attorney, I offer the following opinion.  
     The dissolution and/or amendment she refers to, will only have an effect on the protections which were put in place by the Historic Preservation Ordinance.  It will not dissolve or amend any of the existing restrictions and covenants which were previously put into place by many of the Heights' residences individually.  According to Texas Property Code Section 208.005(c) “ The amendment or termination of a restrictive covenant is effective to each separately owned parcel of tracts subject to the common scheme of preservation of historic property if the owners of at least 75%...vote in favor of the amendment or termination of the restrictive covenant.”  
     The dissolution will have no effect on the deed restrictions (Joint and Mutual Restrictive Covenants Agreement) which many individuals, and/or blocks, within the Houston Heights area, have previously put in place. Nor will it have any effect on the “protections” which are granted under these previous deed restrictions.

Rob Taylor
Attorney-at-Law

Just so I didn’t leave any part of the letter out, I included the above clip.

     There are certain instances where I think the government can be helpful.  But when I read the last sentence above, I can’t help but think of the old saying, “We are the government and we are here to help.”