2014, June 12 | Thursday 12:43 am

by Peter Samuel

In the second-Thursdays-of-the-month evening hearings before the Historic Preservation Commission applicants extremists will interrupt any speaker who cites the costs or financial consequences of possible Commission rulings. An example: a man who rents apartments wanted to reduce the heating bills by replacing single glaze windows with double insulated glass was told earlier this year that the Commission could only consider the historic preservation values, not costs. Almost every ruling of the

HPC chair Scott Winnette

HPC chair Scott Winnette

commission affects building costs and is money not available for other uses. It has to affect rents, and at the margin will kill an improvement or development project. Property values will be affected when efficient glazing or other modern materials and technologies are barred. Similarly if a Commission ruling disallows half of a proposed building what does this mean for rental earnings (in the case of a rented property) and the value of the property?

Maybe the price in diminished value or increased annual maintenance is worth paying for the historic preservation achieved but under current rules this may not even be discussed at HPC hearing – by order of the Commission chairman Scott Winnette. And City attorney Scott Waxter

The following is an exchange of emails with Scott Waxter, the attorney assigned by the City to advise the historic commission. Mr Waxter normally sits with the Commissioners during Thursday evening hearings and often speaks to legal issues:

1. Samuel-to-Waxter 2014-04-25 16:28

Scott Waxter,
City attorney at the Historic Preservation Commission

Scott Winnette’s authority to order commissioners to disregard costs and consequences?

Mr Waxter: at least twice during my attendances of public hearings of the Historic Preservation Commission the chairman of the HPC Scott Winnette has said from the podium that the Commission must make its rulings solely on the basis of its assessment of the historic preservation consequences and that it need not or may not (he has expressed it both ways I think) take into account costs or economic effects of HPC rulings.

Twice I have challenged Mr Winnette as to the basis for this (which candidly I find preposterous) and he has been at a loss for words – very unusual for him!

That makes me think it may be simply Mr Winnette’s opinion as to how the Commission should make its decisions, and not based in any City law or guidance.

I may have missed it but I haven’t spotted anything in the Guidelines spelling out that the Commission must not or need not consider the costs or economic consequences of its decisions. is there anything relevant in the City bylaws or ordinances applying to the HPC on this matter you can point me to?

Does the City Attorney or you have any relevant instruction you have given to the Commission or any interpretation on this matter to offer?

Or is the decision making rationale and criteria simply delegated to the Commission itself to determine?

I ask this question independent of my case HPC13-229 though at some point it may well be relevant to it.

City attorney Scott Waxter

City attorney Scott Waxter

I am thinking about writing the Mayor and Board and airing this more widely, but want to establish the facts as fully as possible before I take it to that level.

Citizens spending time and money dealing with the HPC and then living with the consequences of its decisions deserve a clarification of this matter.

Peter Samuel

2. Waxter-to-Samuel 2014-04-25 16:40

Mr. Samuel:

It appears from your question that you are seeking some form of legal advice with regard to your case. I cannot offer legal advice to HPC applicants.

Scott H. Waxter

3. Samuel-to-Waxter 2014-04-25 16:44

Recasting the question as an open access/freedom of information/public information request here goes:

BACKGROUND: the chairman of the HPC Scott Winnette has said from the podium that the Commission must make its rulings solely on the basis of its assessment of the historic preservation consequences and that it need not or may not (he has expressed it both ways I think) take into account costs or economic effects of HPC rulings. I haven’t spotted anything in the Guidelines spelling out that the Commission must not or need not consider the costs or economic consequences of its decisions.

REQUEST: Is there anything in the HPC Guidelines spelling out that the Commission must not or need not consider the costs or economic consequences of its decisions. is there anything relevant in the City bylaws or ordinances applying to the HPC on this matter you can point me to?

Does the City Attorney or you have any relevant instruction you have given to the Commission or any interpretation on this matter to offer?

Or is the decision making rationale and criteria simply delegated to the Commission itself to determine?

Peter Samuel

4. Waxter-to-Samuel 2014-04-28 15:34

Mr. Samuel:
This response is written to satisfy the request that you made below. You have asked what if any information exists in the HPC guidelines that states that the Historic Preservation Commission must not or need not consider the costs or economic consequences of its decisions.

The information that you are requesting is stated in the Frederick Town Historic District Guidelines. Pages 11 & 12 set out the Secretary of the Interior’s standards for rehabilitation. Those standards to not include a provision for consideration of the costs or economic consequences of its decisions.

Also, you can look at Page 14 of the Guidelines. That page contains the subparagraph O which gives the required considerations for reviewing applications. None of the four requirements listed on that page contains a provision for consideration of the costs or economic consequences of its decisions.

There are no City bylaw or ordinance that is otherwise relevant to your inquiry.

In addition to the above cited references, you will find on page 150 of the guidelines a paragraph regarding financial hardship as it relates to demolitions. You may also pick up an application for a financial hardship finding from the planning department. Financial hardship applications are not exclusively related to demolition.

I believe that this information satisfies your request for information. Thank you.

Scott H. Waxter

 

5. Samuel-to-Waxter 2014-05-04 16:42

Mr Waxter:

You wrote me: “There are (sic) no City bylaw or ordinance that is otherwise relevant to your inquiry.”

That was plainly false.

Section 423 of the Land Management Code which is the whole statutory authority for the Historic Preservation Commission’s operations states under ‘Purpose’ that among the purposes of the Historic Overlay District is “to stabilize and improve property values..” and “to strengthen the local economy….”

see p255 on http://www.frederickland.com/uploads/pdfs/City%20of%20Frederick%20Land%20Management%20Code.pdf

The Commission plainly cannot fulfill these statutory purposes if it is under your advice that it has no authority to consider costs and economic consequences.

I also draw your attention to the fact that the Guidelines themselves document a legal requirement that in the event of a conflict between guidelines and city law or code “the applicable law or code will take precedence.” (Part C p9 of Frederick Town Historic District Design Guidelines, 2009)

I suggest you need to reverse your advice to the Commission.

Please let me know how and when you propose to correct the record, and give accurate legal advice to the Commission.

Peter Samuel

 

6. Waxter-to-Samuel 2014-05-05 12:27

Mr Samuel: Thank you for your email. I believe the information that I have presented to the Historic Preservation Commission is accurate. I do not share your interpretation of the meaning and effect of the LMC language you have quoted.

Scott H. Waxter

7. Samuel-to-Waxter 2014-05-05 12:56

Scott: we have a City Commission operating under a City code LMC423 which states that two of the Commission’s five objects are supporting property values and the local economy. The City also references these two objectives in its website introduction to historic preservation.

But, you say, the Commission in its hearings is not allowed to consider any testimony bearing on these matters, because they are not referenced in the Guidelines, even though the Guidelines in question themselves state that when there is a conflict between City Code and the Guidelines, City Code is to prevail.

This is insane.

Good luck defending this in a court of law, or of public opinion.

I want to thank you for giving me a slogan for a website I’m thinking of opening: “Restore Sanity to Historic Preservation in Frederick Maryland.”

I’ll be sure to give you full credit.

Peter S

 

8. Waxter-to-Samuel 2014-05-05 15:36

Mr Samuel: Thank you again for your email. Each time you write an email, you seem to modify the factual basis for your objections. No one has claimed that you cannot give testimony on the local economy or the benefit that your application may have on your neighborhood’s property values. Rather what the HPC stated is that is it did not want to accept testimony on the cost your particular application. You have attempted at several HPC meetings to gain favor and sympathy for your application based solely on the estimates of the overall costs of your project. Those facts (the cost of your proposed application) are not to be used as the basis for either the denial or approval of your application.

During past conversations with me, you have indicated that you understand this concept. You have told me that you understand that a person’s financial ability or inability to pay for appropriate historic treatments should not be a determining factor in the HPC’s denial or approval of applications. You must be cognizant that if the HPC made determinations for approval or denial based upon the wealth of the applicant their decisions would be misguided.

You have continued to conveniently misstate the nature of the statements made by the HPC in their consideration of applications. No one objects to information regarding property values and economic viability. But these are not the items you seek to discuss when you present your application. You have continued to seek favor or sympathy for your project based on your costs and expenses. There is an avenue through which you can seek a determination of financial hardship by the HPC. Please contact the planning department if you wish to follow up with that application. That stated, I will continue to advise the HPC in the manner that I believe is consistent with the LMC and the HPC Guidelines. If you continue to state one set of facts in this email string and a different set of facts before the HPC, we will not move any closer to a resolution of this matter.

Scott H. Waxter

 

9. Samuel-to-Waxter 2014-05-05 20:49

Mr Waxter: this is a new distinction you are now making, and it makes your position even more ridiculous.

You are now saying it is permissible at HPC hearings for an applicant to give an opinion on the general impact on costs and the local economy of historic preservation’s administration in general, but impermissible for applicants to make any reference to the actual costs and likely consequences for them in their own particular case.

The first would be just an opinion and not germane to the particular case being heard. A general opinion should not carry much weight in the context of a hearing on a particular case. This would be the wrong setting for such a broad discussion. It would be time-wasting and largely irrelevant to the case being heard. Chairman Winnette would be fully justified in cutting me or any other applicant off if I spent time opinionating about the administration of historic preservation and its economic consequences in general during a hearing or workshop on say HPC13-229.

By contrast, costs and consequences to the applicant of a case at issue are far more within the knowledge of the applicant, less a matter of opinion. And they are pertinent to the case if the Commission is to do its job of making balanced decisions. Balanced decisions in line with the land management code under which the Commission has jurisdiction and in line with the stated objectives of the city clearly require the Commission to know about and consider costs and consequences in the particular case.

So, to use a candid colloquialism, you have it exactly arse-up, Scott… (omitting comment on his silly claim I’m just advancing my own case where we haven’t got to the point of costs.)

Peter Samuel

end of email string

COMMENT: We think this refusal to consider costs is insane, a travesty, a case of a city commission gone rogue. But you tell us.

We’re open to all views here.

2014-05-10

 

Your Comments are invited.Please send feedback to petersamuel@mac.com
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