Montgomery County’s historic preservation law is broken and needs a tune-up

The landmark 1978 Supreme Court decision in Penn Central Transportation v. New York City is sacrosanct to historic preservationists. The case settled the question of the constitutionality of local historic preservation landmarking laws. Penn Central and a handful of other precedents are historic preservationists’ first line of defense when lawmakers attempt to rewrite historic preservation laws like Montgomery County’s 31-year-old ordinance, a law sorely in need of a legislative tune-up.

Last year, Montgomery County Councilmember Mike Knapp attempted to amend Chapter 24A of the Montgomery County Code, the county’s historic preservation law. The councilmember who decided to not seek re-election this year wanted to revise the law by removing a controversial criterion for historic designation and by including provisions for owner consent prior to any property being designated historic.

I served two terms on the Montgomery County Historic Preservation Commission (2004-2010), the maximum allowable under county law. In 2007 I was appointed vice-chair and in 2009, chairman.

While serving on the HPC I understood all too well the frustration property owners felt when historic preservation advocates initiated hostile designation proceedings. Many designation applications are well-researched and are solidly defensible. Others, including some prepared by Montgomery County Planning Department staff and local historic preservation consultants, rely on highly questionable sources to argue a property’s historical significance. Many of these documents rely heavily on scanned copies of historical Washington Post articles and little else. I have often wondered whether some consultants could continue to do business if the searchable archive of the historical Washington Post suddenly disappeared.

When first confronted by Knapp’s proposal, I toed the historic preservation line that the amendments to the law were unacceptable. As I wrote in a recent Montgomery Gazette opinion piece, my views have changed. A historic preservation designation and regulatory process that does not provide property owners with an opportunity for an independent review of the documentation being used to determine which properties are significant and which are not is inherently unfair to the property owners and to taxpayers.

Property owners, oftentimes homeowners or small business owners, lack the resources necessary to adequately evaluate a report heavy with footnotes and unfamiliar terminology. Hiring a qualified consultant to review the designation materials is in most cases beyond their means. And, since there are few barriers to entry in the historic preservation consulting field, choosing the best consultant for your case can be difficult.

Once a property owner gets caught up in a designation process initiated by a third party, like a local historic preservation advocacy group, there are few options outside costly litigation to have a mistaken designation undone. Even when Montgomery County realizes that it has mistakenly designated a property as historic, it is a time consuming and costly process to reverse, as one Damascus family is learning.

So how does the Montgomery County historic preservation designation process work? Montgomery County’s historic preservation program is like hundreds of others throughout the nation at the county and municipal level.

Montgomery County’s is based on federal historic preservation programs administered by the National Park Service. The National Park Service administers the nation’s honorific inventory of important historic and prehistoric places known as the National Register of Historic Places. To be listed in the National Register a building, site, structure, or object (e.g., a statue or a historic ship) must meet one or more criteria. Properties may be listed because of their association with significant individuals; they may be important because they reflect important periods in history or an important event occurred there; they may be architecturally significant; or, they may have archaeological significance. Maryland also has its own inventory program known as the Maryland Inventory of Historic Properties.

County law establishes two basic categories of historical significance: historical and cultural significance and architectural and design significance. There are nine individual criteria used to evaluate significance:

Montgomery County Historic Preservation Designation Criteria
§ 24A-3(b)(1) Historical and cultural significance
a Has character, interest or value as part of the development, heritage or cultural characteristics of the county, state or nation;
b Is the site of a significant historic event;
c Is identified with a person or a group of persons who influenced society; or
d Exemplifies the cultural economic, social, political or historic heritage of the county and its communities.
§ 24A-3(b)(2) Architectural and design significance
a Embodies the distinctive characteristics of a type, period or method of construction;
b Represents the work of a master;
c Possesses high artistic values;
d Represents a significant and distinguishable entity whose components may lack individual distinction; or
e Represents an established and familiar visual feature of the neighborhood, community or county due to its singular physical characteristic or landscape.
Montgomery County Code § 24A-3: Historic Resources Preservation, Criteria for designation of historic sites or districts

Montgomery County’s inventory of historic properties is known as the Master Plan for Historic Preservation. To be listed in the Master Plan (or in an intermediate classification known as the Locational Atlas and Index of Historic Sites), an individual property or a district of related properties must be evaluated against the county’s criteria. This evaluation process involves the completion of an inventory form that includes historical information about the property as well as detailed descriptions of its architecture and environmental setting. Anyone — a property owner or a third party — can nominate a property to be designated in Montgomery County.

The inventory forms are submitted to the Planning Department’s Historic Preservation Section for review. Once an application has been found to be complete it is then brought before the Historic Preservation Commission — a nine-member volunteer board appointed by the County Executive composed of experts in architecture, history, and archaeology, as well as community representatives — which votes on whether the property meets one or more of the criteria for designation. While the County Council has the final say on whether a property is designated or not, the Planning Board votes whether to forward the designation to the Council with a recommendation to add a property to the Master Plan.

Once a property is listed in the Master Plan, it is subject to the regulatory oversight of the HPC and it becomes eligible for state and county tax credits for qualifying rehabilitation and restoration work if the Maryland Historical Trust determines that the property qualifies, i.e., if it is eligible for listing in the National Register of Historic Places. To make significant changes to a designated property, e.g., putting on a new roof, an addition, replacing windows, or demolishing an outbuilding, property owners must submit a Historic Area Work Permit that details the proposed work. The HPC then determines if the HAWP meets the standards established under county law and the Secretary of the Interior’s Standards for Rehabilitation.

Over the past few months, Montgomery County has confronted some uncomfortable revelations about its historic preservation process. First, I reported in my blog on the park formerly known as “Uncle Tom’s Cabin.” The story was reported by the Washington Post and by multiple media outlets. Then, the County Council took up the matter of the mistakenly designated house in Damascus. Just last week, the Montgomery Gazette reported on the County Council’s decision to postpone deciding on a proposed Greenwich Forest historic district designation in Bethesda.

Last month the Montgomery County Planning Board began hearings and work sessions on a block of historic designations in the county’s Upper Patuxent region. Among the properties the Planning Board is evaluating are groups of properties recommended for designation by historic preservation office staff and the HPC and a batch of properties that the HPC determined do not meet any of the county’s nine designation criteria but which staff believes should be designated. It is a complex process that even Planning Board members admitted (open link to see agenda and session video) was difficult to get their heads around.

At last week’s Planning Board work session on the Upper Patuxent designations, county preservation planner Sandra Youla tried to explain to the Planning Board members why some properties that may appear to be architecturally unremarkable may yet be significant because of their historical associations. “Sometimes when the significance of a resource is historical, we don’t require the degree of architectural integrity that we might if the significance is primarily architectural,” Youla said.

An audio clip with Youla explaining significance may be played below:

But what if the historical research used to make the historical significance case for an architecturally unremarkable building is incomplete or incorrect? What remedies are available to property owners under the county’s current law to ensure that mistakes do not happen? And, equally important, how are county taxpayers protected from unnecessarily regulation of properties that in fact meet none of the county’s historic designation criteria?

Historic preservation advocates and overworked and underfunded county historic preservation staff routinely take shortcuts that result in bad research and poor regulatory policy. In the case of the county’s purchase of the former Riley farm where Josiah Henson worked as a slave, precious public resources were spent on purchasing a property based in large part because oral tradition and county designation documents made a direct association with Henson and a surviving log building on the property known as “Uncle Tom’s Cabin.”

Although historic preservation advocates claim that there are only benefits associated with historic designation and preservation, they ignore the very real transaction costs associated with regulating historic properties. The county must review all HAWP applications and these reviews frequently involve visits to sites around the county; reports are written for review by the HPC; and, hearings are held to evaluate the applications. If property owners are unsatisfied with the HPC’s decision, they may seek relief from the Montgomery County Board of Appeals.

Tax credits, grants, and other funding sources so often cited by preservation advocates and planners do little to cover the actual costs to the entire county for regulating historic properties. Earlier this year I met with Councilmember Knapp and council attorney Jeff Zyontz to discuss reviving the 2009 amendments with significant modifications. Among my recommendations:

  • Require all third-party designation applications to be subject to an application fee to subvent the costs of an independent review of the historical documentation. For proposed designations begun by the Montgomery County Planning Department as part of its regular work plan, a fee may be added to historic area work permits;
  • Reduce the number of designation criteria from nine to four by adopting the Criteria for Listing in the National Register of Historic Places;
  • Eliminate the “familiar visual feature” criterion;
  • Require a majority of property owners in proposed historic districts to approve of the proposed designation;
  • Do not require owner consent for individual property designations (retain existing); and,
  • Permit Historic Preservation Office staff to perform expedited historic area work permit reviews for many projects (introduced by HP office staff during the 2009 amendment discussions).

There is no denying the environmental and social benefits attached to historic preservation. There is abundant evidence (National Trust for Historic Preservation Website) that historic preservation can increase property values and strengthen community ties. Historic preservation is dear to Montgomery County, as the overwhelming opposition to Mike Knapp’s 2009 amendments demonstrates.

If Montgomery County wants to keep its historic preservation program intact, steps must be taken to ensure that designation documentation is defensible. Wikipedia, the Washington Post archives, and the circular use of earlier flawed designation documents to justify regulating historic properties are not justifiable in Montgomery County nor anywhere else.

These aren’t anti-preservation statements; they are pro-preservation. By constantly pushing for higher standards and consistency, historic preservation advocates will gain currency with decision makers who will find fewer ways to question preservation’s legitimacy. Although historic preservation laws may be constitutional, their implementation may not always be fair and ultimately may not be in the public interest if properties that are demonstrably not historic are designated historic.

Cross-posted on the Greater Greater Washington blog.

Disclosure: I am the principal in a business that on occasion does historic preservation regulatory work in Montgomery County and elsewhere.

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