Village of East Aurora, NY Chapter 156 Historic Preservation

[HISTORY: Adopted by the Board of Trustees of the Village of East Aurora 5-26-1987 by L.L. No. 9-1987 (Ch. 15 of the 1972 Code); amended in its entirety 8-9-2021 by L.L. No. 4-2021.[1] Subsequent amendments noted where applicable.]

[1] Editor's Note: Prior amendments included L.L. Nos. 4-2004; 1-2006; and 7-2007.

§ 156-1 Purpose.

It is hereby declared as a matter of public policy that the protection, enhancement and perpetration of landmarks and historic districts is necessary to promote the economic, cultural, educational, and general welfare of the public. Inasmuch as the identity of a people is founded on its past, and inasmuch as East Aurora has many significant historic, architectural and cultural resources which constitute its heritage, this chapter is intended to:

A. Protect and enhance the landmarks and historic districts which represent distinctive elements of East Aurora's historic, architectural and cultural heritage;

B. Foster civic pride in the accomplishments of the past;

C. Protect and enhance East Aurora's attractiveness to visitors and support and stimulus to the economy thereby provided; and

D. Ensure the harmonious, orderly, and efficient growth and development of the Village of East Aurora.

§ 156-2 Historic Preservation Commission.

There is hereby created a commission to be known as the "East Aurora Historic Preservation Commission."

A. The Commission shall consist of at least seven members to be appointed, to the extent available in the community, by the Mayor as follows: at least one shall be an architect; at least one shall be an historian; at least one shall be an attorney; at least one shall be a resident of an historic district; one shall be a licensed real estate professional, to the extent available, and the remaining members shall have demonstrated significant interest in and commitment to the field of historic preservation evidenced either by involvement in a local historic preservation group, employment or volunteer activity in the field of historic preservation, or other serious interest in the field; and all members shall have a known interest in historic preservation and architectural development within the Village of East Aurora.

B. Commission members shall serve for terms of four years and can serve an unlimited number of terms.

C. Commission members are required to attend one training event per year.

D. The Chairperson and Vice Chairperson of the Commission shall be elected by and from among the members of the Commission.

E. The Commission requires an independent secretary at its meetings.

F. The powers of the Commission shall include:

(1) Promulgation of rules and regulations as necessary for the conduct of its business.

(2) Adoption of criteria for the identification of significant historic, architectural, and cultural landmarks and for the delineation of historic districts.

(3) Conduct of surveys of significant historic, architectural, and cultural landmarks and historic districts within the Village.

(4) Designation of identified structures or resources as landmarks and historic districts.

(5) Acceptance on behalf of the Village of the donation of facade easements and development rights; the making of recommendations to the Village Board of Trustees concerning the acquisition of facade easements or other interests in real property as necessary to carry out the purposes of this chapter.

(6) Increasing public awareness of the value of historic, cultural and architectural preservation by developing and participating in public education programs.

(7) Making recommendations to the Village Board of Trustees concerning the utilization of state, federal or private funds to promote the preservation of landmarks and historic districts within the Village of East Aurora.

(8) Recommending acquisition of a landmark structure by the Village of East Aurora where its preservation is essential to the purposes of this chapter and where private preservation is not feasible.

(9) Approval or disapproval of applications for certificates of appropriateness pursuant to this chapter.

G. The Commission shall meet as least monthly, but meetings may be held at any time on the written request of any two of the Commission members or on the call of the Chairman or the Mayor.

H. A quorum for the transaction of business shall consist of four of the Commission's members, but not less than a majority of the full authorized membership may grant or deny a certificate of appropriateness.

I. Upon request by the Commission, the Village Attorney and Village Code Enforcement Officer (CEO) are required to provide the Commission with timely copies of all correspondence, notices of violations, and any other records.

§ 156-3 Designation of landmarks or historic districts or interior landmarks.

A. The Commission may, subject to the approval of the Village Board of Trustees, designate an individual property as a landmark, if it:

(1) Possesses special character or historic or aesthetic interest or value as part of the cultural, political, economic or social history of the locality, region, state or nation;

(2) Is identified with historic personages;

(3) Embodies the distinguishing characteristics of an architectural style;

(4) Is the work of a designer whose work has significantly influenced an age; or

(5) Because of unique location or singular physical characteristic, represents an established and familiar visual feature of the neighborhood.

B. Designation of historic districts.

(1) The Commission may, subject to the approval of the Village Board of Trustees, designate a group of properties as an historic district if it:

(a) Contains properties which meet one or more of the criteria for designation as a landmark; and

(b) By reason of possessing such qualities, constitutes a district section of the Village.

(2) The boundaries of each historic district designated henceforth shall be specified in detail and shall be filed, in writing, in the Village Clerk's office for public inspection.

C. Interior landmark: The Commission may designate/delineate the interior of a property as an interior landmark if such interior has special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the Village of East Aurora, Town of Aurora, State of New York or the United States of America, and:

(1) It is customarily open or accessible to the public; or

(2) It is an interior into which the public is customarily invited.

§ 156-4 Notice and hearing requirements for proposed designation.

The Commission shall delineate individual landmarks or historic districts in the following manner:

A. Initiation of proposed designation. Designation of an individual historic landmark or historic district may be proposed by the Commission, by the owner of the property, or by any resident of the Village of East Aurora.

B. Public hearing; general notice.

(1) Within a reasonable time after receipt of a full application or other matter referred to it, the Commission shall schedule a public hearing on all proposed resource, individual landmark or historic district designations. Public notice of any such hearing shall be given by publication in a newspaper of general circulation within the Village at least 15 days prior to the public hearing date.

(2) The Commission shall require submission of written comments on the application prior to designation of any landmark or historic district.

(3) The Commission, property owners, and any interested parties may present testimony or documentary evidence at the hearing which will become part of a record regarding the historic, architectural, or cultural importance of the proposed resource, individual landmark or historic district.

C. Notice of public hearing; multiple properties proposed for designation.

(1) Ten properties or less: Notice of public hearing for a proposed designation involving no more than 10 properties shall be sent by certified mail, return receipt requested, or courier service with proof of delivery or personal service with proof of delivery to the owners of properties located within the area of the proposed historic district at least 15 days prior to the date of the public hearing. Such notice shall include a description of the properties proposed for designation and state the time and place where any public hearing to consider such designation will be held by the Commission.

(2) More than 10 properties: Where the proposed designation of an historic district includes more than 10 properties and the Commission deems individual notice infeasible, notice may instead be published at least once in newspaper of general circulation in the Village 15 days prior to the date of the public hearing. The notice shall specify the time and place of the public hearing, a brief description of the proposed designation, and the location where the proposal may be reviewed prior to the hearing.

(3) The notice provisions are in addition to the general notice requirements under Subsection B of this section.

D. Work moratorium. Once the Commission has issued notice of a proposed designation, it may recommend to the municipal governing board that a moratorium be put in place, prohibiting any work relating to the individual landmark or district proposed for designation as long as the proposed designation is under active consideration by the Commission and until the Commission has made its decision on designation.

E. Commission record. The Commission shall compile a public record in support of its delineation of a resource, landmark or historic district. In addition to testimony or documentary evidence received at any public hearing, the record may also contain reports, public comments, expert testimony, or other evidence offered outside of the hearing, but submitted for the Commission's consideration by the date of the hearing. At a minimum, the record of the delineation shall contain the application, Commission and/or staff reports, any comments made on the application at the public hearing, and the Commission's recommendation to the Village Board of Trustees to approve, approve with modifications, or deny the application requesting designation.

F. Village decision. Within 62 days after the close of the public hearing, the Village Board of Trustees shall by resolution undertake a designation in whole or in part, or shall disapprove in entirety, setting forth in writing the reasons for the decision. Notice of the Village Board designation shall be sent by the Commission to the applicants and owners of a designated property by certified mail, return receipt requested, or in the case of an approved historic district, notice shall be sent by the Commission to the applicants and owners of all properties within the approved district by certified mail, return receipt requested.

G. The Commission may agree with the applicant, in writing, to extend the time period within which a recommendation will be made.

H. The Commission shall forward notice of each property designated as an individual landmark and the boundaries of each designated historic district to the Building Department and Planning Commission, and both the Village Clerk and County Clerk for recordation.

I. Failure to send notice. Failure to send any notice by mail to any property owners where the address of such owner is not a matter of property tax records shall not invalidate any proceedings in connection with the proposed designation.

J. Amendment or rescission. The Commission may amend or rescind any designation of an individual landmark or historic district in the same manner and procedure as followed for designation.

§ 156-5 Certificate of appropriateness for alteration, demolition or new construction affecting landmarks or historic districts.

No person shall carry out any exterior alteration, restoration, reconstruction, demolition, new construction or moving of a landmark or property within an historic district, nor shall any person make any material change in the appearance of such a property, including, but not limited to, its light fixtures, signs, sidewalks, fences, steps, paving or other exterior elements visible from a public street or alley which affects the appearance and cohesiveness of the historic district, without first obtaining a certificate of appropriateness from the Historic Preservation Commission. When making its determination, the Commission may consider whether or not the proposed changes or renovations can be seen from a public right-of-way.

§ 156-6 Criteria for approval of certificate of appropriateness.

A. In passing upon an application for a certificate of appropriateness, the Historic Preservation Commission shall not consider changes to interior spaces, unless they are open to the public. The HPC shall have discretion to consider whether the proposed alteration, repair or renovation which is the subject of the certificate of appropriateness is visible from a public street or alley. The Commission's decisions shall be based upon the following principles:

(1) Properties which contribute to the character of the historic district shall be retained, with their historic features altered as little as possible;

(2) Any alteration of existing properties shall be compatible with its historic character, as well as with the surrounding district; and

(3) New construction shall be compatible with the district in which it is located.

B. In applying the principles of compatibility, the Commission shall consider the following factors:

(1) The general design, character and appropriateness to the property of the proposed alteration or new construction.

(2) The scale of the proposed alteration or new construction in relation to the property itself, surrounding properties, and the neighborhood.

(3) Texture and materials of the proposed alteration or new construction, as well as the materials' inherent color, and their relation to similar features of other properties in the neighborhood.

(4) Visual compatibility with surrounding properties, including proportion of the property's front facade, proportion and arrangement of windows and other openings within the facade, roof shape, and the rhythm of spacing of properties on streets, including setback.

(5) The importance of historic, architectural or other features to the significance of the property.

(6) In approving an application for a certificate of appropriateness, the Commission shall not review changes to reversible exterior paint colors.

§ 156-7 Certificate of appropriateness application procedure.

A. Prior to the commencement of any work requiring a certificate of appropriateness, the owner shall file an application for such a certificate with the Historic Preservation Commission. The application shall contain:

(1) Name, address and telephone number of applicant;

(2) Location and photographs of property;

(3) Elevation drawings of proposed changes, if available;

(4) Perspective drawings, including relationship to adjacent properties, if available;

(5) Where the proposal includes signs or lettering, a scale drawing showing the type of lettering to be used, all dimensions and colors, a description of materials to be used, method of illumination and a plan showing the sign's location on the property;

(6) Sample(s) of color and/or materials to be used;

(7) Any other customary and reasonable information which the Commission may deem necessary in order to visualize the proposed work.

B. No building permit shall be issued for such proposed work until a certificate of appropriateness has first been issued by the Historic Preservation Commission. The certificate of appropriateness required by this chapter shall be in addition to and not in lieu of any building permit that may be required by any other law of the Village of East Aurora.

C. The Commission may approve, deny, or approve the permit with modifications within 15 days from receipt of the completed application. The Commission may hold a public hearing on the application at which an opportunity will be provided for proponents and opponents of the application to present their views.

D. All decisions of the Commission shall be in writing. A copy shall be sent to the applicant by registered mail and a copy filed with the Village Clerk's office for public inspection. The Commission's decision shall state the reasons for denying or modifying any application.

E. Expiration of approval.

(1) Extension of approval certificates of appropriateness shall be valid for 24 months, after which time the owner shall apply for a new certificate if he/she still wishes to undertake work on the property.

(2) At least two months prior to expiration of the twenty-four-month period, the owner may apply, in writing, for an extension and shall explain the reasons for the extension request.

(3) The Commission may grant up to two extensions of six months each.

(4) A written application for an extension of a certificate of appropriateness approval shall not be considered an application for a new certificate of appropriateness.

§ 156-8 Hardship criteria.

A. An applicant whose certificate of appropriateness for a proposed demolition has been denied may apply for relief on the ground of hardship. In order to prove the existence of hardship, the applicant shall establish that:

(1) The property is incapable of earning a reasonable return, regardless of whether that return represents the most profitable return possible;

(2) The property cannot be adapted for any other use, whether by the current owner or by a purchaser, which would result in a reasonable return; and

(3) Efforts to find a purchaser interested in acquiring the property and preserving it have failed.

B. An applicant whose certificate of appropriateness for a proposed alteration has been denied may apply for relief on the ground of hardship. In order to prove the existence of hardship, the applicant shall establish that:

(1) The property is incapable of earning a reasonable return, regardless of whether that return represents the most profitable return possible;

(2) The property cannot be adapted for any other use, whether by the current owner or by a purchaser, which would result in a reasonable return; and

(3) Efforts to find a purchaser interested in acquiring the property and preserving it have failed.

§ 156-9 Hardship application procedure.

A. After receiving written notification from the Commission of the denial of a certificate of appropriateness, an applicant may commence the hardship process. No building permit or demolition permit shall be issued unless the Commission makes a finding that a hardship exists. Such decision shall be made within 30 days from receipt of the hardship application.

B. The Commission may hold a public hearing on the hardship application, at which an opportunity will be provided for proponents and opponents of the application to present their views.

C. The applicant shall consult in good faith with the Commission, local preservation groups and interested parties in a diligent effort to seek an alternative that will result in preservation of the property.

D. All decisions of the Commission shall be in writing. A copy shall be sent to the applicant by registered mail and a copy filed with the Village Clerk's office for public inspection. The Commission's decision shall state the reasons for granting or denying the hardship application.

§ 156-10 Removal or relocation of landmark buildings.

A. Demolition of an individual landmark or of a structure located in and contributing to the significance of an historic district shall be allowed only in case of economic hardship, unless the building department, upon due deliberation, has made an express written finding that the structure presents an imminent threat to the public health, safety and welfare.

B. Any person desiring to demolish a designated historic building shall first file an application for an historic building demolition permit with the Building Department and an application for such certificate with the Commission. An applicant must submit the following items:

(1) Current level of economic return;

(2) Amount paid for the property, date of purchase, party from whom purchased, and relationship between the owner of record, the applicant, and the person from whom the property was purchased;

(3) Annual gross and net income from the property for the previous three years; itemized operating and maintenance expenses for the previous three years; and depreciation deduction and annual cash flow before and after debt service, if any, during the same period;

(4) Remaining balance on the mortgage or other financing secured by the property and annual debt service, if any, during the prior three years;

(5) Real estate taxes for the previous four years and assessed value of the property according to the two most recent assessed valuations;

(6) All appraisals obtained within the last two years by the owner or applicant in connection with the purchase, financing, or ownership of the property;

(7) Form of ownership or operation of the property, whether sole proprietorship, for-profit or not-for-profit corporation, limited partnership, joint venture, or other;

(8) Any state or federal income tax returns relating to the property for the last two years;

(9) Any listing of property for sale or rent, price asked, and offers received, if any, within the previous two years, including testimony and relevant documents regarding:

(a) Any real estate broker or firm engaged to sell or lease the property;

(b) Reasonableness of price or rent sought by the applicant; or

(c) Any advertisements placed for the sale or rent of the property;

(10) Feasibility of alternative uses for the property that could earn a reasonable economic return;

(11) Report from a licensed engineer or architect with experience in rehabilitation as to the structural soundness of any buildings on the property and their suitability for rehabilitation;

(12) Cost estimates for the proposed construction, alteration, demolition, or removal, and an estimate of any additional cost that would be incurred to comply with the requirements for a certificate of appropriateness;

(13) Estimated market value of the property:

(a) In its current condition;

(b) After completion of the proposed alteration or demolition; and

(c) After renovation of the existing property for continued use;

(14) Expert testimony or opinion on the feasibility of rehabilitation or reuse of the existing structure by an architect, developer, real estate consultant, appraiser, and/or other real estate professional experienced in historic properties and rehabilitation;

(15) Any evidence of self-created hardship through deliberate neglect or inadequate maintenance of the property; and

(16) Economic incentives and/or funding available to the applicant through federal, state, city, or private programs.

C. Demolition of any such building may be approved only in connection with approval of a replacement project.

D. The Commission shall hold a public hearing and shall take one of the following actions:

(1) Approve the demolition permit in conformance with the provisions of § 156-11 of this chapter;

(2) Approve the demolition hardship permit subject to a waiting period of up to 120 days to consider relocation/documentation;

(3) Deny the permit.

E. During the continuance period, the Commission may investigate relocation of the building (on-site) or modification of the building for future uses in a way which preserves the architectural and historical integrity of the building.

§ 156-11 Demolition, removal or relocation hardship criteria.

A. Certificate of appropriateness for demolition, removal or relocation. An applicant whose certificate of appropriateness for a proposed demolition, removal or relocation of a landmark, resource or property has been denied may apply for relief on the ground of economic hardship. In order to prove the existence of economic hardship sufficient to justify demolition, removal, or relocation, the applicant shall establish that the denial of a certificate of appropriateness will prevent the property owner from earning a reasonable return on investment, regardless of whether that return represents the most profitable return possible.

B. Certificate of appropriateness for demolition. The applicant for a certificate of appropriateness for demolition must establish, to the Commission's satisfaction, an imminent plan of reuse or redevelopment of the affected property. The applicant for an income-producing property shall establish that:

(1) The property is incapable of earning a reasonable return, regardless of whether that return represents the most profitable return possible; and

(2) The property cannot be adapted for any other use, whether by the current owner or by a purchaser, which would result in a reasonable return; and

(3) Efforts to find a purchaser interested in acquiring the property and preserving it have failed.

(4) In deciding upon such application for removal, relocation or demolition, the Commission may consider whether the owner has created his own hardship through waste and neglect, thereby permitting the property to fall into a serious state of disrepair.

C. Before approving the removal, relocation or demolition of an individual landmark or structure within an historic district, the Commission may suspend the application for up to 180 days to allow the applicant to consult in good faith with the Commission, local preservation groups, and the public in a diligent effort to seek a less intrusive alternative to demolition.

§ 156-12 Affirmative maintenance and repair requirement.

A. Ordinary maintenance; repair.

(1) Nothing in this chapter shall be construed to prevent the ordinary maintenance and repair of any exterior architectural feature of an historic landmark or property within an historic district that does not involve a change in design, building materials, color or outward appearance.

(2) The Commission may evaluate and decide, without a public hearing, whether or not proposed work constitutes ordinary maintenance and repair or requires a certificate of appropriateness.

B. No owner or person with an interest in real property designated as an individual landmark or included with an historic district shall permit the property to fall into a serious state of disrepair. Maintenance shall be required, consistent with the Property Maintenance Code of New York State Uniform Fire Prevention and Building Code and all other applicable local regulations.

C. Every owner or person in charge of an improvement on a landmark site or in an historic district shall keep in good repair:

(1) All of the exterior portions of such improvements; and

(2) All interior portions thereof which, if not so maintained, may cause or tend to cause the exterior portions of such improvement to deteriorate, decay or become damaged or otherwise to fall into a serious state of disrepair. Examples of types of prohibited disrepair include, but are not limited to:

(a) Deteriorated or crumbling exterior plasters, mortar or facades;

(b) Deteriorated or inadequate foundation;

(c) Defective or deteriorated flooring or floor supports or any structural floor members of insufficient size to carry imposed loads with safety;

(d) Deteriorated walls or other vertical structural supports that split, lean, list or buckle due to defective material or deterioration;

(e) Members of ceilings, roofs, ceiling and roof supports or other horizontal members which sag, split or buckle due to defective material or deterioration or are of insufficient size to carry imposed loads;

(f) Ineffective or inadequate waterproofing of exterior walls, exterior chimneys, roofs, foundations or floors, including windows or doors, which may cause or tend to cause deterioration, decay or damage;

(g) Defective or insufficient weather protection for roofs, foundation or exterior wall covering, including lack of paint, or weathering due to lack of paint or other protective covering, which may cause or tend to cause deterioration, decay or damage;

(h) Fireplaces or chimneys which list, bulge or settle due to defective material or deterioration or are of insufficient size or strength to carry imposed loads with safety;

(i) Any fault or defect in the building or structure which renders it not properly watertight or otherwise compromises the life and character of the building or structure.

D. Interiors: Every owner or person in charge of an improvement to an interior landmark shall keep in good repair:

(1) All portions of such interior landmark; and

(2) All other portions of the improvement which, if not so maintained, may cause or tend to cause the interior landmark contained in such improvement to deteriorate, decay, or become damaged or otherwise to fall into a serious state of disrepair.

E. Every owner or person in charge of a scenic landmark shall keep in good repair all portions thereof.

§ 156-13 Enforcement; penalties for offenses.

A. All work performed pursuant to a certificate of appropriateness issued under this chapter shall conform to the requirements expressly stated in the certificate or reasonably implied therefrom. It shall be the duty of the Code Enforcement Officer (CEO) to periodically inspect any such work to assure compliance with the certificate and all applicable law. In the event any requirement included in the certificate of appropriateness has not been met, or upon notification of that fact by the Historic Preservation Commission, the Code Enforcement Officer shall issue a stop-work order, and all work shall immediately cease. No further work shall be undertaken on the project as long as a stop-work order is in effect.

B. Any owner or person in charge of a property who demolishes, alters, constructs, or permits a designated property to fall into a serious state of disrepair in violation of this chapter, in the absence of a certificate of appropriateness, a finding of economic hardship, or other approval by the Commission, may be required by the Village Board of Trustees to restore the property and its site to its appearance prior to the violation.

C. If, in the judgment of the Commission, a violation of this chapter exists that will result in a detrimental effect upon the life and character of a designated historic resource, landmark, or property or on the character of an historic district as a whole, the Commission shall notify the Code Enforcement Officer. If, upon investigation, the Code Enforcement Officer finds noncompliance with the requirements of the Property Maintenance Code of the New York State Fire Prevention and Building Code, or any other applicable law or regulation, the Code Enforcement Officer shall order such remedies as are necessary and consistent with this chapter and shall provide written notice thereof to the Secretary of the Commission.

D. Penalties (Residential and Commercial Property Owners). A violation of this chapter is deemed an offense punishable as follows:

(1) The first notice of noncompliance is issued by the Village Code Enforcement Officer, and the Commission is carbon-copied. The Commission's proposed solution is for the property owner to remedy the violations from the certificate of appropriateness, and the property owner has 60 days from date of receipt of said notice.

(2) If the property owner still fails to comply, then Village Code Enforcement Officer issues a second notice and carbon-copies the Commission. The Commission's proposed solution is for the property owner to remedy the violations from the certificate of appropriateness. Furthermore, the Village Code Enforcement Officer will advise the Village Attorney that further enforcement may be necessary, including the application of fines.

(3) If the property owner still does not remedy the defects from the certificate of appropriateness within 60 days of receipt of the second notice, then the Village Code Enforcement Officer will advise the Village Attorney that further enforcement is necessary.

(4) Moreover, the Village Code Enforcement Officer will take the property owner's noncompliance into account when reviewing any future building permit application(s) submitted by the property owner or their proxy. Finally, the Village Code Enforcement Officer can consider a moratorium on any further work requested by the property owner or their proxy.

(5) Proposed fines:

(a) A first conviction for violation of this chapter may result in a fine not exceeding $350.

(b) A second conviction for violation of this chapter, if the occurrence that leads to conviction began within a period of five years from the date of first conviction, may result in a fine not less than $350, nor more than $700.

(c) A conviction for a third or subsequent offense, all of which were committed within a period of five years from when the occurrence leading to the first conviction began, shall include a fine of not less than $700, nor more than $1,000.

(d) In addition to any penalties imposed under this chapter, continued violations of this chapter shall be punishable in any other manner provided under other local regulations, and state and federal law.

§ 156-14 Appeals.

Any person aggrieved by a decision of the Historic Preservation Commission relating to hardship or a certificate of appropriateness may, within 15 days of the decision, file a written application with the Village Board of Trustees for review of the decision.