September 27, 2008

Realtors Back Suit Vs. 2007 Building Rules


Public notice on demolition code at issue

The Tucson Association of Realtors is funding a lawsuit filed last week against the city seeking to repeal revised demolition restrictions, which the Realtors call onerous.

The suit, filed Sept. 10 in Pima County Superior Court, challenges the validity of the demolition rules, revised in 2007, asserting the city did not give proper notice to the public.

In addition, the suit by resident Eric Button claims the city is attempting to regulate zoning through the demolition code, which is illegal under state law.

City Attorney Mike Rankin said the city has yet to be served with the lawsuit, but he rebutted both claims made in the suit: that the city did not give proper notice and that it's attempting use the building code to regulate zoning.

At issue is a revised building code passed by the council on June 12, 2007, which created new requirements for any owner seeking to demolish a structure that is more than 45 years old and was within the city limits in 1953.

The revisions require the applicant to submit a historic survey of every property within 300 feet of the structure being torn down.

The city has 60 days to review the submission, and after that it can either require a 90-day stay so the city can document the historic features of the building, or a 180-day stay so the city can try to preserve the structure by buying it or arranging for the purchase of the property by another party.

Button was told he had to follow the revised rules before he could demolish a house in the Jefferson Park neighborhood and build a larger one there.

He then filed the lawsuit, which is being funded by the Realtors group.

Colin Zimmerman, director of public affairs for the group, said the Realtors want the demolition code thrown out.

"They are zoning through the demolition code," Zimmerman said. "That's not how you do things."

In addition, the Realtors want to highlight the city's actions in passing the ordinance with little or no public notice.

Zimmerman said Rankin read the demolition requirements into the record at the 2007 council meeting and they were never properly publicized.

"In the 11th hour, they changed a few things," Zimmerman said. "We want to shine a light on the process. This process was not done correctly."

Rankin said the demolition code changes were in the materials that went out to the public, and the city followed proper rules.

"It was posted like any other agenda item. There was a public hearing. It wasn't even a late delivery," Rankin said.

A check of the agenda materials on the city's Web site show the demolition code changes were not mentioned in the posted agenda item, but they were part of the ordinance that was attached to the agenda item.

Rankin also said the city wasn't regulating zoning through the building code because the demolition code doesn't regulate the use of property or land.

In addition, Rankin said the ordinance doesn't prevent the demolition of a structure. "It just establishes procedures for a demolition permit," Rankin said.

"It doesn't mean we could condemn it and buy it against the person's will."

Councilwoman Nina Trasoff said she believes the ordinance will stand up in court.

She said the ordinance is a protection for neighborhoods against "wanton destruction" by developers who tear down houses and build new ones with no regard for the neighborhood and its sense of place.

"It's not just the buildings we're trying to preserve. It's the neighborhood; it's the place," Trasoff said.

* Contact reporter Rob O'Dell at 573-4346 or [email protected]

Originally published by ROB O'DELL, ARIZONA DAILY STAR.

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