2014, August 4 | Monday 7:00 pm

by Peter Samuel

Mayor&BoardThe mayor and board are going slow on a proposal from historic preservation staff for wider powers outside the downtown Frederick historic district. City staff have been pushing for control over all ’sites’ as well as ‘structures’ over 50 years of age throughout the City.

One alderman said at a recent Mayor & Board ‘workshop’ meeting that some five city historic planners may be needed to handle the extra workload from a ‘pro-active approach’ designating for HPC review new structures and sites outside the historic district.

Bruce Dean of the Land Use Council (LUC) representing landowners said that under the rubric of a ‘demolition delay’ ordinance the whole City of Frederick is being made into a quasi-historic district and potentially put through Historic Preservation Commission processing of any building proposals.

A 50 year rule in the land management code change enacted last year triggers historic preservation staff review of any ‘demolition’ proposal of any structure over 50 years of age.MapHistResources

Early in the workshop staff were queried about the choice of 50 years as the trigger age for historic review.

Christina Martinkosky: “That (50 years) is a national standard that was established by National Park Service that is used to determine National Register nominations are being generally being that 50 year rule. It is a standard that is… I don’t know of any exceptions where a local government would use a year different than 50 years old as the benchmark to meet that historic status.

COMMENT: Charleston SC used 75 years until recently (it’s 50 years now), Alexandria VA uses 100 years, almost all confine historic preservation review to already defined districts and landmarked buildings outside those districts, few if any have citywide review like Frederick under the new demolition review ordinance, and few have the bad reputation of Frederick’s.

‘Demolition’ as defined in the Frederick City code consists of removal of 25% or more of a structure’s gross square footage, removal of one or more exterior walls or partitions of a building, removal of a roof to raise its height or rebuild to a different pitch, addition of an extra story, as well as removal of the whole building.

BokeeBeing debated is a City staff proposal endorsed by the HPC to enlarge the review from the 50 year or older structure alone to the structure plus site including all its structures.

Staff say the City already has the power to designate sites as historic and subject to HPC review. They maintain that triggering demolition delay and HPC review of the site as well as the structure is just a matter of “streamlining” the review process and saving everyone time and expense.

Matthew Davis director of planning: “Right now if a building is requested for demolition as long as it is over 50 years old, however individually it does not meet the criteria to be listed individually (demolition can proceed.) However if that would contribute to an overall complex that is contributing (then) currently they could go ahead and demolish it. But this allows basically the Commission (HPC) the opportunity to look at it in the broader context of that entire complex. It really just kind of streamlines things.”

Christina Martinkosky, historic preservation staffer: “It’s a very cumbersome process, right now. When the Conley Farm application came up we knew that this building was historically significant and contributed to the site, but the existing (ordinance) text… put us in the awkward situation where we had to actually make two applications and was actually two different technical review processes, one stimulated by the demolition review and one that wasn’t.”ParkHall

She said combining review of a structure with review of its site for historic preservation is “a very simple solution to a problem that shouldn’t arise too often but when it does it is inconvenient for everybody.”

Later Davis said: “This text amendment is designed to streamline things and make it less onerous for both the applicant and staff. That is the intent and is hopefully what it will do. It is not adding an additional layer of anything, it’s kind of consolidating.”

The demolition delay process is in his opinion, he said, working “quite well.”

Bokee, Dacey, Mayor skeptical

Alderman Joshua Bokee led the skeptical questioning of the 50 year trigger for HPC review Citywide, saying that it adds uncertainty to what additions and extension will be permitted. He was also worried by the “subjective” nature of historic preservation rulings: “We’ve added another level of uncertainty with another level of review… We should be trying to streamline the process especially in neighborhoods where we want revitalization to encourage families to expand and develop their homes.”

DaceyHe was supported by Alderman Phil Dacey: “If the City wants to protect buildings (outside the historic district) maybe we should go around and protect those buildings and give people a chance to have their say right now, whether it is historic or not…. To the extent you can provide certainty that this property is or isn’t historic (we should) so that people can make plans for that….If my home is 50 years old then I have to subject myself to a (historic preservation review) process which tells me whether I can make the addition.”

Also: “Rather than (do this) piecemeal as people make applications ‘This should be historic,’ ‘This shouldn’t be’, if we are going to do it let’s do it as part of a more comprehensive scheme, ‘This area of the City should be historic’, so a decision is not in a vacuum and it provides some level of predictability in investment so someone who is looking to make an investment in the City such as happened with the Coca Cola plant. They know going in it is historic so I know I have to go through this. If we are serious about this let’s go the next step and we’ll start designating properties as historic or areas as historic. So people have certainty.”CoffeeCoSPoole

Matt Davis city planning director said they are implementing both approaches – the ordinance 50 year trigger, plus a pro-active approach to start designation review of the 24 sites listed as potential historic sites in the 2009 comprehensive plan, all outside the downtown historic district.

Supporters of the 50 year dragnet

But the city-wide historic dragnet has its supporters, the most outspoken being Aldermen Michael O’Connor and Alderman Kelly Russell.

O’Connor: “ The intent behind this ordinance was to extend some level of review (to the rest of the City) prior to which there was none for a property that may be, there aren’t any… a 500 year old structure that was home to every president of the United States. All you had to do was put in an application to tear down that structure and WE HAD NO WAY (O’Connor’s emphasis) to stop that from happening. OConnorAll they had to do is ask for the permit, and the building would be demolished, subject to that there was no asbestos or hazardous materials, or… So the intent behind the original ordinance was to provide some way to just pause something from being torn down before it was too late. The stimulus for this was the non-permitted demolition of Park Hall.”

(QUESTION: If the Park Hall demolition was non-permitted, then what makes City officials think that wider ranging permitting procedures, dragging more properties into historic preservation review will prevent future non-permitted demolitions. The logical move after Park Hall would have been to increase the enforcement of the existing law, and adding to penalties for non-permitted demolitions as a deterrent. Or else Park Hall’s unpermitted demolition was Martinkosky1simply an excuse by preservationist empire-builders to expand their jurisdiction city-wide – editor.)

O’Connor argued that adding a few weeks to the permitting process city-wide is not onerous. Alderman Donna Kuzemchak agreed: “I don’t see 29 days (extra) as onerous.”

Not a maze, just a labyrinth – O’Connor

Later O’Connor remarked: “Every proposal to build something in the City comes with its own little hurdles or obstacles, site planning review, the health department. It might be labyrinthian but a labyrinth is different from a maze where you get lost. If you go straight in a labyrinth eventually you will get through.”

Alderman Kelly Russell said subjecting all City projects to demolition review by the HPC is just another modest addition to the permitting process which already requires building plans to be reviewed for zoning and building code compliance.

RussellK2Also it may not be restrictive.

Russell: “The fact that it may be designated (historic)…doesn’t stop any future alterations from being made. It just requires that they be made in a certain way. So it doesn’t say that homeowners with 1963 rancher ‘You can never take off the back wall of your house and put a sunroom on it.’ It just says: ‘If you are going to do that, if this property has been deemed historic, which means it has some significance to the community, you need to do it in a way that acknowledges that and adheres to the Guidelines.’ It doesn’t stop, necessarily anything. It is for protection of historic resources that are for all of us.”

Russell called herself “an odd bird” in welcoming historic preservation review in her neighborhood:

“Not every homeowner shares the same angst about coming before the HPC, and there are those of us, and maybe we are odd birds that wanted that designation (to our neighborhood) because it adds value, because it preserves the character of a neighborhood. And I would say that if I was living in a house that.. was just 50 years old and did actually be deemed of historical significant to the city of Frederick I would like to think that would be something I would want to help contribute to and preserve. Not everybody feels that way.”

(COMMENT: Indeed they don’t feel that way, Alderman Russell, but not because most aren’t wanting to “contribute and preserve.” They hate the commission because their actual experience of the ‘historic preservation review’ is that it so often complicates, obstructs or prevents their good faith efforts at preservation, imposes stupid extra time and costs, and is a lot of hassle for no good purpose – editor. The 160 pages of Historic District Design Guidelines are an exasperating, incomprehensible tome shot through with slippery language and weighed down by pettifoggery. No doubt as Alderman Russell says historic preservation sometimes supports property values, but in other cases it undermines them by adding costs or limiting rehabilitation and extensions. The uncertainty about what will be permitted by the HPC scares off many buyers and damages property values – editor.)

“People are terrified”

The strongest criticism of the citywide dragnet and the staff proposal for extension from structures to BruceDean1sites came from Bruce Dean, a lawyer with Linowes & Blocher on West 3rd St who specializes in zoning, historic preservation and other land use issues.

He said that no one among developers or large landowners is opposed to some oversight of historically significant buildings and preservation of these. But he said the City is granting the Historic Preservation Commission sweeping new city-wide powers, and that “people are terrified.”

The Commission he said is “not the most beloved (agency) in this city of ours.” The demolition delay ordinance was being taken “well beyond what it was originally intended for.”

Whenever anyone anywhere in the City wants to remove walls or partitions for an extension, even at the rear, or if they want to modify the roof, they’ll be referred first to historic preservation staff. If their house or other structure is over 50 years old it then gets considered for ‘historical significance’ and whether it is a ‘contributing (historical) resource.’

The 50 year trigger he said was “very brief” and would encompass “whole swathes” of the city in HPC review.

“(50 years) does seem to me very brief. There are neighborhoods where everything is over 50. My neighborhood (Baughman’s Lane) in a year or two, everything will be over 50. You are talking about whole swathes of the City. Not everything is Whittier. You are really getting big here and I do think – and this comes back to the Baker Park area when you were talking a separate (historic) district (and there was a major public backlash.)”

BACKGROUND: The Baker Park area was the subject of an attempted expansion by the Historic DemolitionDefinedByCityPreservation Commission in 2005. The move aroused huge local opposition and then Mayor Holzinger vetoed the move.

Dean: “I am hearing from the development community a real concern with how much they want to get involved in this.“

He said developers understand the planning process with zoning and utilities requirements but the HPC process has a level of subjectivity and unpredictability that is much more intimidating. Whereas there is established case law for land use planning regulations there is nothing comparable in historic preservation.

“Given the rules for what qualifies as ‘historic significance’ there is a lot of subjectivity (in historic preservation review.)”

The chilling effect of possible HPC review and its uncertainties could extend beyond the City limits due to the City’s powers of annexation to enlarge its jurisdiction further into the county. He said he could foresee landowners a possibly historic building even outside the City dumping land because they will see it as coming under the Commission in the future:claret4chCrpd1317

“They’ll say: ‘Let’s get rid of this before we become subject to this ordinance.’ “

Concern has been greatly accentuated by the staff proposal to spread review from structures to whole sites. People at the Land Use Council are “very concerned,” Dean said, at the uncertainty of what a site is, it being left completely undefined in the amendment being proposed by City planning staff. Historic preservation review might encompass the immediate environs of a historic building but it also might be stretched to include a whole parcel), a block, even a neighborhood or other large area.

“We believe that (addition of ‘and site’) to the ordinance broadens the purview of this demolition review ordinance well beyond what… it was originally intended for.”

Land use lawyers couldn’t advise clients what they might be getting into buying city property for development, because the definition of ’site’ for historic preservation is so unclear and the historic preservation review is so subjective.

Many rulings of the Commission leave him saying “I don’t know where that came from,“ Dean said.

The Mayor says 50 isn’t historic

McClementMayor Randy McClement said he shared concerns expressed by aldermen about the 50 year rule and the uncertainties of the historic preservation process for people outside the historic district. He said they should avoid immediate action:

“I don’t see any great rush to move this text amendment along now. Concerns have been raised. We should take the time to look into those.”

McClement said he doesn’t think 50 years makes sense as a trigger for historic preservation review:

“The vast majority of our city falls into the 50 years. I would never have thought as a homeowner that because i want to add a sunroom I am subject to a historic overlay on my house…. I didn’t think about a 1950s house as being historic and I think a lot of homeowners would think the same way as me.”

The mayor said they’d do another workshop before considering any amendment for formal decision.

REFERENCE: Discussion of Zoning Text Amendment PC14-378ZTA, Demolition Review, Mayor & Board special workshop 2014-07-16

video of meeting

http://cityoffrederick.granicus.com/MediaPlayer.php?view_id=12&clip_id=2173

- editor 2014-08-02

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