The purpose of this article is to describe an overlay zone used to impose special development restrictions on identified areas. The location of overlay zones is established by the town council based on the need for special protective measures in that area. The underlying uses in the area, as determined in article II of this LDC, remain undisturbed by the creation of the overlay zone. The overlay zone merely imposes additional or different development standards than those that would otherwise apply.

(Ord. No. 94-112, exh. A(3.00), 1-18-1994; Ord. No. 2007-161, attach. A(3.00), 7-12-2007)

3.01.01.

General provisions.

a.

Purpose. The purpose of this section is to promote the educational, cultural, economic, and general welfare of the community by:

(1)

Providing a mechanism of identifying and preserving the distinctive historic and architectural characteristics and resources of the town which represent elements of the town's cultural, social, economic, political, and architectural history.

(2)

Fostering civic pride in the beauty and noble accomplishments of the past as represented in the town's historic structures and districts.

(3)

Conserving and improving the value of property, both within historic districts and throughout the remainder of the town.

(4)

Protecting and enhancing the attractiveness of the town to home buyers, tourists, and visitors, and thereby supporting and promoting business and commerce, and providing economic benefit to the town.

(5)

Fostering and encouraging preservation, restoration, and rehabilitation of structures, areas, and neighborhoods and thereby conserving the existing housing stock.

b.

Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Alteration means any act or process that changes one or more of the exterior architectural features of a structure including, but not limited to, the construction, reconstruction, or removal of any structure.

Board means the McIntosh Preservation Board established by article VIII of this LDC.

Building means a structure created to shelter any form of human activity.

Certificate of appropriateness means the permit which is required to be issued by the board prior to action as set forth in subsection 3.01.03 b.1.(h). of this LDC.

Demolition means the tearing down or razing of 25 percent or more of a structure's existing exterior walls.

District means a geographically defined area possessing a significant concentration of buildings or structures which are linked by association, history, architectural style, or aesthetic effect.

Material alteration means any construction or change in the material appearance of the exterior. For buildings and structures, material alteration shall include, but shall not be limited to the:

(1) Changing of roofing or siding substances; and

(2) Eliminating or adding doors, door frames, windows, window frames, shutters, fences, railings, porches, balconies, or other ornamentation.

The term "material alteration" does not mean or include ordinary maintenance, repair, or repainting.

McIntosh register of historic places describes a means of identifying and classifying various buildings, structures, sites, and districts as architecturally and/or historically significant.

Ordinary maintenance means work done to repair damage or to prevent deterioration or decay of a building or structure or of any part thereof by restoring the building or structure or part thereof as nearly as practicable to its condition prior to such damage, deterioration, or decay.

Site means the location of a significant event, activity, building, structure, or archeological resource where the significance of the location and any archeological remains outweighs the significance of any existing structures.

Structure means anything constructed or erected with a fixed location on the ground, or attached to something having a fixed location on the ground.

3.01.02.

Historic preservation/conservation district established. The historic preservation/conservation district is hereby established. This district is intended to promote the economic, cultural, educational, aesthetic, and general welfare of the public by protecting and preserving the historical significance and character of the town historic district. The town historic district, officially designated and listed on the National Register of Historic Places, is an outstanding example of rural Victorian architecture. The purpose of the historic preservation/conservation district is to ensure that this irreplaceable heritage survives, so it may serve as a remainder of the town's past and thus enrich the knowledge of future generations. The historic preservation/conservation district is an overlay district. When the historic preservation/conservation district overlay is applied to any property, the underlying zoning district categories are neither abandoned nor repealed. The existing, underlying regulations remain in effect and are further restricted in the manner specified herein. A petition for rezoning to the historic preservation/conservation classification shall be processed as any other proposed amendment pertaining to a change in the zoning classification of land, according to section 8.04.01.

3.01.03.

McIntosh register of historic places. The following shall be the town register of historic places:

a.

Creation. The McIntosh Register of Historic Places is hereby created as a means of identifying and classifying various buildings, structures, sites, and districts as architecturally and/or historically significant. The register will be kept by the town clerk.

b.

Initiation of placement on the local register. Placement of individual properties or districts on the register may be initiated by the town council. Placement on the town register of historic places shall only occur after:

(1)

An individual or district nomination form is completed by the applicant and submitted to the town preservation board at a duly called meeting. Such nomination forms shall be available in the office of the town clerk.

(2)

A review and written recommendation indicating suitability of listing the property on the register is completed by the town preservation board. Upon receipt of a completed nomination form by the town preservation board at a duly called meeting, the town preservation board shall have 90 days in which to review the form and write a recommendation indicating the suitability of listing the property, structure, site or district on the town register of historic places. The town preservation board shall review the completed nomination form at a public meeting. Notice of such public meeting shall be furnished to the public at large and to the property owner. In conducting the review, the town preservation board shall evaluate the nominated property, structure, site, or district, specifically considering its:

a.

Character, interest, or value as part of the development, heritage, or cultural characteristics of the town, county, or state.

b.

Location as a site of local, county or state events.

c.

Identification with a person or persons who significantly contributed to the development of the town, county, or state.

d.

Embodiment of distinguishing characteristics of an architectural style valuable for the study of a period, type, method or construction, or use of indigenous materials.

e.

Identification as the work of a builder, architect, or designer whose individual work has influenced the development of the town, county, or state.

f.

Embodiment of elements of design, detailing, materials, or craftsmanship that render it architecturally significant.

g.

Unique location or singular physical characteristics that make it an established or familiar visual feature.

h.

Suitability for preservation or restoration.

i.

Archaeological significance.

Following the public meeting, the town preservation board shall write the recommendation indicating the suitability of the property for listing on the town register of historic places. In its recommendation, the town preservation board shall include a factual statement of the property owner's objections, if any, to the listing. Failure to review and write a recommendation within 90 days after the public meeting shall be deemed a recommendation approving listing on the town register of historic places, unless the 90 day time limit is extended by the mutual written consent of the town preservation board and the applicant.

c.

The nomination form andthe town preservation board recommendation shall be sent to the planning commission. The nomination shall then be treated as a proposed amendment pertaining to a change in the zoning classification of land and the procedure set forth in section 8.04.01.

3.01.04.

Historic places listing. The effect of a town register of historic places listing shall be as follows:

a.

Certificate of historical significance. The town council shall issue a certificate of historical significance to the owners of properties or structures listed separately on the town register of historic places, or to the owners of properties or structures judged as contributing to the significance of districts listed on the register.

b.

Modification of existing zoning regulations. The listing of a building, structure, site, or district on the town register of historic places shall modify the regulations and procedures set forth in this LDC, to the extent stated in this section. The remainder of the requirements, regulations, and procedures set forth in this LDC shall remain applicable.

c.

Issuance of building anddemolition permits. No building or demolition permit shall be issued for any of the actions specified in subsections (1) through (6) of this section without the issuance of a certificate of appropriateness from the town preservation board or a written statement from the town preservation board to the administrative official stating that no certificate of appropriateness is required. A certificate of appropriateness shall be required to:

(1)

Materially alter the exterior appearance of a building or structure listed individually on the register or of a building in a district listed on the register and classified as significant to that district;

(2)

Demolish a building or structure listed individually on the register or to demolish a building in a district listed on the register and classified as significant to that district;

(3)

Erect an addition to a building or structure listed individually on the register or to a building in a district listed on the register and classified as significant to that district;

(4)

Erect a new building within a district listed on the register;

(5)

Relocate a building or structure listed individually on the register or to relocate a building located in a district listed on the register and classified as significant to that district.

(6)

Undertake any action that will substantially alter the existing characteristics of a site, including clearing, alteration of the topography, or new construction.

In reviewing all applications for certificates of appropriateness, the town preservation board shall be aware of the importance of finding a means of meeting the current needs of the property owner. The town preservation board shall also recognize the importance of approving plans which will be reasonable for the property owner to carry out.

d.

Issuance; material alteration. The following shall be the criteria doe issuance of a certificate of appropriateness for material alteration of change in exterior appearance, erection of new building or structures, or additions to existing buildings or structures:

(1)

When considering an application for a certificate of appropriateness for:

a.

The material alteration or change in exterior appearance;

b.

Erection of new buildings or structures; or

c.

Additions to existing building or structures,

the town preservation board shall be guided by the Secretary of the Interior's standard for rehabilitation and guidelines for rehabilitating historic buildings.

(2)

In addition to subsection 1. of this subsection, the town preservation board shall consider the following guidelines:

a.

Height. Height shall be visually compatible with that of the adjacent buildings.

b.

Scale. The size of the building or structure and the building mass of the structure in relationship to open space, door openings, windows, porches, and balconies shall be visually compatible with buildings and places to which it is visually related.

c.

Rhythm of openings. The relationship of the width of the windows to the height of the windows in a building or structure shall be visually compatible with buildings and places to which it is visually related.

d.

Setback. The relationship of the building or structure to open space between it and other buildings and structures shall be visually compatible with buildings and places to which it is related.

e.

Entry. The relationship of entrances and projections to the required yards of a building shall be visually compatible with the buildings and places to which it is visually related.

f.

Materials. The relationship of the materials, color, and texture of the facade of a building shall be visually compatible with the material used in buildings to which it is visually related.

g.

Roof shape. The roof shape of the building or structure shall be visually compatible with buildings and places to which it is visually related.

h.

Directional expression. In its directional character, a building or structure shall be visually compatible with the buildings and places to which it is visually related.

e.

Demolition. Criteria for the issuance of a certificate of appropriateness for demolition. When approving or denying an application for a certificate of appropriateness for demolition of a building or structure, the town preservation board shall consider:

1.

The historical and architectural significance of the building or structure;

2.

The importance of the building or structure to the ambiance of a district;

3.

The difficulty or impossibility of reproducing such a building or structure because of its design, material, detail, or unique location;

4.

Whether the building or structure is one of the last remaining examples of its kind in the neighborhood, town, county, or region;

5.

Whether there are definite plans for refuse of the property if the proposed demolition is carried out and what the effect of those plans would be on the surrounding area;

6.

Whether reasonable measures can be taken to save the building or structure from collapse; and

7.

Whether the building or structure is capable of earning a reasonable economic return on its value.

f.

Relocation. Criteria for the issuance of a certificate of appropriateness for relocation. When approving or denying an application for a certificate of appropriateness for the relocation of a building or structure, the town preservation board shall consider:

1.

The historic character and aesthetic interest of the building or structure in its present setting.

2.

Whether there are definite plans for the area to be vacated and the effect of those plans on the surrounding area.

3.

Whether the building or structure can be moved without significant damage to its physical integrity.

4.

Whether the proposed relocation area is compatible with the historic and architectural character of the building or structure.

g.

Alteration of site. Criteria for the issuance of a certificate of appropriateness for alteration of a site. When approving or denying an application for a certificate of appropriateness for the alteration of a site, the town preservation board shall consider:

1.

The historical and/or archaeological significance of the site;

2.

Whether the site is one of the last remaining examples of its kind in the neighborhood, town, county, or region;

3.

Whether there are definite plans for reuse of the property if the alteration is carried out and what the effect of those plans would be on the surrounding area;

4.

Whether reasonable measures can be taken to allow the alteration while preserving the historical and/or archaeological value of the site;

5.

Whether the site is capable of earning a reasonable economic return on its value if the alteration is not allowed; and

6.

If the alteration is allowed to proceed, has an appropriate investigation and exploration of the site been undertaken.

h.

Procedures. Upon receipt of any application for a building permit or demolition permit, the town clerk shall determine whether a certificate of appropriateness may be required, based on the following guidelines:

1.

If the application for a permit involves the alteration of, demolition of, relocation of, or addition to a structure not listed on the register and not located in a district listed on the register and classified as significant to that district, then the applicant shall not be required to complete an application for a certificate of appropriateness.

2.

If the application for a permit involves the erection of a new building on property not located within a district listed on the register and classified as significant to that district, then the applicant shall not be required to complete an application for a certificate of appropriateness.

3.

In all other cases, the clerk shall provide the applicant with an application for a certificate of appropriateness.

4.

If the town clerk determines that guideline subsections (1) or (2) of this section apply, he shall note this fact on the application for a permit. Such notation shall relieve the applicant of any obligation to seek a certificate of appropriateness for the specific work authorized by the permit.

5.

If the town clerk determines that subsection 3. of this subsection applies, when the town clerk receives both the completed application for a building permit or demolition permit and the completed application for a certificate of appropriateness, he shall transmit the applications to the secretary of the town preservation board within seven days. No building or demolition permit shall be issued until a required certificate of appropriateness has been issued by the town preservation board.

6.

When a certificate of appropriateness is required under subsection (c) of this section, but no building or demolition permit is required for the proposed action, an application for a certificate of appropriateness shall be filed at the office of the town clerk. When the town clerk receives the completed application for a certificate of appropriateness, he shall transmit the application to the secretary of the town preservation board within seven days.

7.

An application for certificate of appropriateness shall include such plans, designs, photographs, reports, and other exhibits as the town preservation board may require.

(i)

Determination by the town preservation board. When a completed application is received by the town preservation board, the chairman shall set a date for consideration of the application. The date set shall be within 30 days of receipt of the application. Notice shall be sent to the applicant and to all persons or organizations filing written requests for such notices with the chairman.

1.

The town preservation board shall review the application for a certificate of appropriateness at a public meeting, after giving due public notice of the meeting in a matter permitted by the state statutes.

2.

The town preservation board shall determine whether a certificate of appropriateness is required for the desired action. If no certificate of appropriateness is required, the town preservation board shall provide the town clerk and the applicant with written notice of this determination within five days after the public meeting. If a certificate of appropriateness is required, the board shall determine whether to issue or deny the certificate of appropriateness at the public meeting or within 45 days after the meeting. Such approval or denial shall be based upon review of the application according to the appropriate criteria in subsections d. through g. of this section. Written notice of approval or denial shall be provided to the applicant and to the town clerk within seven days of the determination and shall be accompanied by the certificate of appropriateness in the case of approval.

3.

A denial of a certificate of appropriateness shall be accompanied by a statement of the reasons for denial. The town preservation board shall make recommendations to the applicant concerning changes, if any, in the proposed action that would cause the board to reconsider its denial. The town preservation board shall confer with the applicant. The applicant may submit an amended application for a certificate of appropriateness at any time.

4.

Failure of the town preservation board to act within the time limits established shall be deemed an approval of the application, and upon request of the applicant, the town clerk shall issue any permit dependent upon a certificate of appropriateness.

(j)

Appeals. Any person aggrieved by a decision of the town preservation board may appeal the decision to a court of competent jurisdiction within 30 days from the date the decision is reduced to writing and delivered to him.

(k)

Penalties. Any person failing to comply with this section shall be subject to a $100.00 fine. In addition, a stop work order shall be issued in any case where work has commenced which requires a certificate of appropriateness and where no certificate has been obtained. The stop work order shall remain in full force until a certificate of appropriateness has been obtained or until the town preservation board determines that no certificate of appropriateness is required.

(Ord. No. 94-112, exh. A(3.01), 1-18-1994; Ord. No. 2007-161, attach. A(3.01.03(a)—(k)), 7-12-2007)