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Susman sides with property rights in church vote

Editor’s note: The Denver City Council voted 8-3 on Monday night to grant historic designation to the former Beth Eden Church in West Highland. Council President Mary Beth Susman explains why she felt property owner’s rights  trumped historic designation.

Highlights:

  • Guest column by Denver Council President Mary Beth Susman.
  • Susman was one of three to cast a ballot against historic designation for the Beth Eden Church.
  • She voted with the minority even though she treasures adaptive reuses of buildings.

By Mary Beth Susman

Special to InsideRealEstateNews.com.

Mary Beth Susman

Mary Beth Susman

The debate never should have come to the council floor.

It wasn’t about whether the church would be saved.

It was about who gets the leverage in negotiations for historic designation in this situation, the property owner or the city?

Council Bill 306 requested the designation of 3241 Lowell Boulevard, the Beth Eden Baptist Church, as a structure for preservation.

Both sides of the debate, the owner and Historic Denver who filed for preservation, wanted the same thing — save the church.

Why were we called on to make a decision for them?

Here is a little background: The property owner had been sued by neighborhood residents under Rule 106 over the zoning for this property which had been established years before.

Plaintiffs rarely prevail, but the action has been used to delay or deter development (Denver Business Journal, Feb 22, 2014).

The property owner won that suit after an expensive three years for the owner.

Though winning the suit, the property owner still agreed to not only pay the losing plaintiffs’ court costs, but also agreed to a further negotiated court settlement to forestall a possible appeal. That settlement agreement required the owner file a request for a “Certificate of Non-Historic Status” for the church and to limit the height of adjacent construction on two of the three parcels in question, if the non-historic status was approved.

The original developer who had the property under contract at the time, had planned to keep the church wholly and build a 5-story apartment house that incorporated it. These suing neighbors preferred 4-stories over the preservation of the church.*
The owner dutifully filed the request for non-historic status for the church.

Just after the court ruling another group of citizens, with Historic Denver, neither involved in the suit, filed for historic preservation of the church — the opposite request from the suing community group. This kind of filing is familiarly known as a “hostile designation” because it is done against the property owner’s wishes.

The owner wanted to maintain some flexibility in the sale of his property and hoped to come to an agreement with Historic Denver that established predictability for what a buyer might be able to do without the need for designation.
Council had hoped that the filers and owner could negotiate successfully before this got to the floor.

Historic Denver staff and the owner both described their negotiations as “lovely dialogues” but they hadn’t been able to reach an agreement on how many walls and how much roof to preserve.

Their differences were only a matter of degree, but time was running out.

Here’s why: When there is a filing for a certificate of non-historic status, there are 120 days to “defeat” it or the certificate is granted.

You see? We couldn’t buy time by having the owner withdraw his request for non-historic status because the property owner, (Tom Wootten), was under a court settlement to seek it. Historic Denver couldn’t withdraw their application because it would result in automatic non-historic status.

Beth Eden Church Building.

Beth Eden Church Building.

So, the decision was about to whom do you give leverage in the ongoing negotiations? A property owner or the government?

If we decided to approve historic designation for Historic Denver, they would have more leverage. If we did not, conceivably the property owner would.

I believe in preservation.

I am convinced of the value of our architectural and historic treasures and their unique ability to create “place” and increase economic success.

I know adaptive reuse contributes to sustainability.

Some of my best friends (really) are avid preservationists and three of them were there that evening.

I also believe in those times when the public good of the community overrides the private good of individuals.

But I am also passionately committed to individual rights as I know my friends are.

On council we’re often called on to decide between the individual and the government. Each situation presents its own, well, situation.

The testimony of speakers at our public hearing was brilliant and loving for their community and the church, but none of their examples of preservation involved a hostile designation.

No one expressed how it might feel to have a community:

  1. Sue you for the zoning your property already has.
  2. Even after winning the suit, you follow the settlement specifics to file for non-historic status.
  3. Another part of the community files to undo that requirement.

Nor how it would feel to have your own property, say your home, which might have historic significance, subject to not only city zoning requirements but also the opinion of your neighbors that you should not change the exterior of your home, put on an addition, replace windows, etc.

While there are criteria for saying a property is historic, one council member unintentionally exemplified its relative subjectivity. The speaker mentioned that she once lived in a “yucky blond brick house.” To some that home might be a mid-century treasure, suitable for preservation.

While I don’t believe our decision was about whether a structure was suitable to be preserved, it did highlight that beauty and historicity can be in the eye of the beholder.

I voted “no” on the historic designation along with two other council members.

It wasn’t a vote against historic preservation, it was vote to give leverage to the individual property owner.

I believed the church would be saved with either vote.

I believe this owner had more than honored his community’s values and found himself in a corner for it, so he more than deserved to negotiate from a position of strength this time.

*During this period the developer who was going to buy the property walked away because the delay had been so great and construction costs had risen so much that it was no longer feasible for him. So the owner also lost his sale.

Interested in buying a home in West Highland and want to know what is on the market? Please check COhomefinder.com.

Have a story idea or real estate tip? Contact John Rebchook at JRCHOOK@gmail.com. InsideRealEstateNews.com is sponsored by Universal Lending, Land Title Guarantee and 8z Real Estate. To read more articles by John Rebchook, subscribe to the Colorado Real Estate Journal.