Demolishing in a historic zone: irreversible ruin, the construction permit before knocking down, and non-conforming use

It is Rule 10.2.4 of Chapter 10.2 of Joint Regulation No. 9473, titled Other Permits, inside the chapter on the Conservation of Historic Sites, Historic Zones and Centros Fundacionales. It covers four things: the demolition permit for non-eligible properties, the demolition permit for eligible properties with all its graphic documentation, permits related to public roads, and the non-conformity permits in use and in building. The chapter’s general permits, the exempt works and the ICP recommendation are in the guide to Rules 10.2.1 to 10.2.3; the intervention norms in the guide to Rule 10.2.5. Both were written from the same reading of the complete chapter.

The rule distinguishes between non-eligible and eligible properties inside historic sites and zones and centros fundacionales, and treats each by a different standard. The non-conformity permits are issued by OGPe or the Permit Office of an Autonomous Municipality with Hierarchies I to III, with the ICP’s recommendation, for uses and structures established before the regulation came into force that do not comply with its provisions. Moreover, where Normas Especiales de Ordenamiento exist, demolition permits may be considered depending on the level of intervention set in the maps.

• On non-eligible properties: guaranteeing that the structure demolished will be replaced by another structure or by a public space in harmony with the urban context and compliant with the Volume’s provisions.Verified against the official source
• Not demolishing any structure unless an approved construction permit for that same plot is held.Verified against the official source
• Beginning the structure’s construction within six months of the construction permit’s issue date.Verified against the official source
• On eligible properties: showing the property is in a state of irreversible ruin or presents a danger of collapsing in its entirety due to structural failure, with documents from competent technicians proving it convincingly and beyond all doubt.Verified against the official source
• Obtaining the ICP’s recommendation where a wooden structure needs to be disassembled to carry out material substitution or reconstruction works: that is treated as demolition.Verified against the official source
• Placing a hoarding at the plot’s front aligned with the pavement once the demolition of a non-eligible property authorised for danger of collapse is finished.Verified against the official source

• To demolish an eligible property: a land-use report for where the building or parts to be demolished are located.
• An architectural survey of the building or parts to be demolished.
• A photographic inventory showing the building’s façades and their formal relations with the neighbouring buildings.
• In ruin cases, a detailed study of the causing factors, such as structural failure, alterations and others.
• The complete project of the works or interventions to be carried out, with the construction documents detailed as to the demolition, the type of construction, the technical and constructive procedures and the sequence to be followed.
• To request a time extension for a temporarily legal non-conforming use: a graphic and written description of the structures, the use’s nature with hours and clientele, the location and nearby uses, documentation of the permit, the separate value of the land, the structure and the movable improvements, the estimated value of surrounding uses, the nearest place where the use would be permitted and the cost of that relocation, the structure’s conformity, the cost of conforming the use, the benefit or harm of relocating and how long the business has operated.

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   Step 1: Non-eligible property: you do not knock it down to leave an empty lot

   No demolition permits may be issued for non-eligible properties unless it is guaranteed that the structure demolished will be replaced by another structure or by a public space in harmony with the urban context and compliant with the Volume’s provisions. And once the construction permit for the demolition is obtained, no owner may demolish the structure unless they hold an approved construction permit for that same plot. Construction must begin within six months of the construction permit’s issue date. The logic is to avoid the gap: what will go on the site is approved first, and only then is what is there knocked down.

2. 2

   Step 2: The collapse-danger exception, and the hoarding

   Where a non-eligible property or part of it presents a danger of collapse due to structural failure, and documents are presented proving that danger convincingly and beyond all doubt to the concerned agency’s satisfaction, the structure may be demolished without a construction permit for a new structure or public space. That condition must be stated in the demolition permit granted. And once the demolition is finished, a hoarding must be placed at the plot’s front aligned with the pavement: the plot is not left open to the street.

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   Step 3: Eligible property: only irreversible ruin or danger of total collapse

   No demolition permits may be issued for eligible properties unless it is shown that the property is in a state of irreversible ruin or presents a danger of collapsing in its entirety due to structural failure. In both conditions, documents from technically competent professionals are required proving that condition convincingly and beyond all doubt to the concerned agency’s satisfaction. Note the standard of proof: a report saying it is in bad shape is not enough; the regulation asks for convincing proof beyond all doubt.

4. 4

   Step 4: The graphic documentation before knocking down

   In these cases graphic documentation of the property before its demolition is required, per the ICP’s requirements, including: a land-use report for where the building or parts to be demolished sit; an architectural survey of the building or parts to be demolished; a photographic inventory showing the building’s façades and their formal relations with the neighbouring buildings; in ruin cases, a detailed study of the causing factors, such as structural failure, alterations and others; and the complete project of the works or interventions to be carried out. That is: even if the building is lost, its record remains.

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   Step 5: Outside those two conditions, there is no total demolition

   Outside the two conditions — irreversible ruin or danger of collapsing in its entirety — no total demolition of any eligible property is permitted, only the removal of added elements that do not contribute to its character. After inspection, the removal of deteriorated components may be authorised, to be replaced with pieces and elements defining the same visual character. The minimum demolition necessary to adapt the building to contemporary requirements of comfort, health and safety is also authorised, avoiding impact on elements defining the building’s type and character.

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   Step 6: Dismantling a wooden house is demolishing

   This is the rule that most surprises owners of wooden houses: where wooden structures need to be disassembled to carry out material substitution or reconstruction works, that is treated as demolition and requires the ICP’s recommendation. The regulation repeats it a few lines later when discussing the construction documents: it extends to wooden structures needing disassembly for material substitution or reconstruction works, and those too are considered demolitions. If you are going to take the house down piece by piece to change its rotten timber, that comes in through the demolition door, not the repair one.

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   Step 7: Road permits and the National Register

   No permit for segregation, construction or relocation of any building on any plot is issued unless the plot has the corresponding access. No projects are authorised where they may affect eligible historic properties designated by the Planning Board, which must be certified as such by the ICP. Owners who violate the permit process face the corresponding sanctions set out in Volume XI of the regulation or of the Autonomous Municipality. And for the purposes of new roads, the properties inventoried and included in the National Register of Historic Places held in the State Historic Preservation Office’s files are considered, so its recommendation is taken into account.

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   Step 8: Non-conforming use: akin or conflicting

   OGPe or the Autonomous Municipality’s Permit Office issues, with the ICP’s recommendation, legal non-conforming use permits for uses and structures established before the regulation came into force that do not comply with it. It first notifies the owner or tenant and the concerned agencies, with acknowledgement of receipt, that the use is non-conforming, stating clearly the nature and extent of the non-conformity. It then determines whether the non-conformity is of a conflicting nature to the area or of an akin nature; the conflicting nature is determined by a field study and ratified by a public or an administrative hearing. If of an akin nature, a legal non-conforming permiso único may be granted and the use may be operated indefinitely, subject to three conditions: the use may not be changed or intensified, it may be transferred to another owner, and the structure may not be extended.

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   Step 9: If conflicting: two years and a window to ask for more time

   If of a conflicting nature, a temporarily legal non-conforming permiso único is granted with the ICP’s recommendation, allowing the use to be operated for a term of two years from the notification date, subject to the same conditions as akin uses. Where an interested party considers that period unreasonable, they may request, during the year following the notification, a time extension to eliminate the use or make the approved changes or modifications that turn it into a conforming one. The request carries a long list of information: the graphic and written description of the structures, the use’s nature with its hours and clientele, the location and nearby uses, the permit documentation, the separate value of the land, the structure and the movable improvements, the estimated value of surrounding uses, the nearest place where the use could be permitted and the cost of that relocation, the cost of conforming the use where it is, the benefit or harm of relocating, how long the business has operated and even income tax returns.

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    Step 10: Non-conforming structure: the twenty per cent threshold

    A structure’s non-conformity may be of a legal or a temporarily legal nature. A structure is understood to be temporarily legal where the investment to adjust it to the regulation’s provisions represents a cost of less than twenty per cent of the structure’s market value; where the cost reaches that twenty per cent, the non-conformity is understood as legal non-conforming. A legal non-conforming structure permit is granted with the ICP’s recommendation, and it may be operated provided the structure is not extended nor intervened in a major or substantial way; where a construction permit for a major or substantial intervention is sought, the proponent must explain how their construction will conform the existing structure to the regulation within reasonable parameters. A note of fidelity to the document: the regulation states that twenty per cent twice on different bases — once against the structure’s market value and once against the investment in the structure — and the second sentence is printed so that it reads as neither "twenty per cent or more of" nor "twenty per cent more than". We reproduce both and flag that the threshold’s basis is not stated consistently.

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    Step 11: The two years that are sometimes three

    Here there is an internal contradiction in the official document that we report without resolving. For non-conforming use, the rule grants two years from the notification and then says that if after the two years the owner has not conformed the use, is not really and effectively in the process of conforming it, and has obtained neither a variance nor a time extension, the applicable penalties and judicial actions may be applied. For a non-conforming structure, the rule grants a term of not more than two years and then says that if after the three years following the notification the owner has not conformed the structure, penalties may be applied. Two years granted, three years to the penalty: the printed text does not reconcile the two figures and neither do we. If you are in that situation, ask OGPe or your municipality before counting on the extra year. And one rule applies in every case: no intervention of any kind nor a new permiso único is permitted for a temporarily legal non-conforming structure unless the non-conforming characteristics are corrected.

Demolition permits and non-conformity permits are applied for before OGPe or before the Permit Office of an Autonomous Municipality with Hierarchies I to III, and carry the ICP’s recommendation. The graphic documentation prior to demolishing an eligible property is prepared per the ICP’s requirements, and the construction documents are evaluated against the information available in the Planning Board’s and the ICP’s files.

• Demolishing a non-eligible property without guaranteeing it will be replaced by another structure or by a public space.
• Knocking down without an approved construction permit for that same plot.
• Letting the six months from the construction permit’s issue pass without starting the works.
• Applying to demolish an eligible property with a high repair estimate instead of proof of irreversible ruin or danger of total collapse.
• Believing a municipal public-nuisance declaration is enough to demolish an eligible property.
• Disassembling a wooden house to change its materials without processing it as a demolition with the ICP’s recommendation.
• Demolishing without preparing the prior graphic documentation: land-use report, architectural survey, photographic inventory and study of causes.
• Forgetting the hoarding at the plot’s front after a demolition authorised for danger of collapse.
• Extending or intensifying a legal non-conforming use, which may only be transferred to another owner.
• Counting on three years when the temporarily legal non-conforming permit is granted for a term of two.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov

• Puerto Rican Institute of Culture

  icp

  www.icp.pr.gov