Expert Testimony

Last night I visited my former colleagues: the Montgomery County Historic Preservation Commission. The HPC held a hearing to determine if a 1950s Silver Spring movie theater and shopping center met the criteria for designation in the Montgomery County Master Plan for Historic Preservation. The proposed designation is supported by local preservation groups and was initiated as part of a Planning Department sector plan review. The property owner opposes designation because he feels that it limits his options to redevelop the property to take advantage of new economic opportunities sprouting throughout Silver Spring.

Leaving aside the merits of the designation and the tensions between historic preservation commissions as regulatory bodies and private property owners, I would like to focus on the role of the historic preservation expert. The property owner’s land use attorney retained a large consulting engineering company with a cultural resource management division to make the case that the property does not merit historic designation. The person who appeared at last night’s hearing brandished her credentials — 14 years of professional experience and title as “architectural history team leader” — to establish her credibility as an expert in historic preservation.

Speaking on the heels of the land use attorney, the expert effectively continued the attorney’s speech about limited development opportunities and she launched an attack on the historic preservation staff’s research used to support the recommendation for designation. The expert assailed the property’s integrity — altered, she said, to the point of not being able to convey its historical significance — and she failed to address the specific points in Montgomery County law (Chapter 24A of the County Code) used to make designation decisions. (For a discussion of how that law works, see these two articles I wrote: a 2009 Montgomery Gazette op-ed and a 2009 civic association newsletter article).

The expert may have 14 years of professional experience but she did not understand Montgomery County’s historic preservation ordinance and the HPC’s role in making recommendations to the Planning Board for designation. The attorney and the expert both failed their client by arguing a Planning Board case — that designation would not be in the public interest — before the HPC, a body that deals only with the nine legally defined historic designation criteria. The expert also testified, using PowerPoint slides to make her point, about the significantly altered interiors of the theater and adjacent stores. Unfortunately for her, the HPC only has jurisdiction on building exteriors and interior conditions may inform regulatory decisions when they bear upon changes to building exteriors, i.e., the removal of chimneys or other features that pierce exterior fabric.

Like all research products, the HPC work has its flaws but you cannot argue the merits of historic designation based on pedestrian writing. The MIHP inventory form, while it could have used some better editing, presented solid and effectively sourced research. And, it made a very strong case for designation. During my 6 years on the HPC I regularly pushed for effective and defensible designation documentation and if I were sitting on the HPC last night I would have found few bones to pick with the staff regarding the quality of the research. The expert who testified last night failed to find the places in the staff documentation ripe for debate and for opportunities that may have resulted in an outcome for her client other than a unanimous vote to recommend designation of the entire property, the theater and shopping center. [UPDATE: I was wrong about the HPC documentation. ]

Last night’s hearing was an expensive exercise for the property owner. He had to pay for his attorney and for a poorly selected and poorly prepared historic preservation expert (who works for an international company with 42 thousand employees and whose time was billed along with her support staff and the management time put in by her supervisors). Expert testimony is not a commodity service; it is specialized and should be undertaken thoughtfully and carefully by a professional who understands the resources and the authority of the regulatory body before which testimony is being given. I strongly recommend that the expert who testified last night read, and read again, Richard Longstreth’s highly insightful volume, History on the Line: Testimony in the Cause of Preservation (1998, National Park Service).

Leave a Reply