Sloppy handling of a case for partial demolition and additions to the Evangelical Reformed United Church of Christ (ERUCofC) at 15W Church St last summer has generated a pair of law suits for the Historic Preservation Commission (HPC.) Staff misdated the building to be demolished a ‘non-contributing resource’ on the basis it was less than 50 years old – the test for a historic building under HPC Guidelines p15, p16 – when it turns out to over 60 years old. And according to the complainant several other serious mistakes of law were made. The litigant is North Court Associates, a company of lawyers led by Cliff Bridgford who have offices and residences backing onto the church and an access easement at the bottom of the church property.
In submission to Circuit Court one North Court Associates questions the legality of the demolition of a garage heard in case HPC14-583 July 24 and the other the handling of the replacement plan in case HPC14-584 heard August 14. The Evangelical Church is adding an extra 8,000 square feet at the rear of their lot at the back of the church office and immediately west of the church itself. The addition will be largely underground – requiring removal of a large rear lawn and plantings and surface parking lot and demolition of an old concrete block garage and a wooden carport.
The City’s response to North Court Assoc law suits is that the HPC has “broad discretion” as to how it applies the Guidelines. The city attorney also denies the claim that staff witnesses were not properly sworn in as charged by Bridgford.
It is unclear that there is “broad discretion.”
The Guidelines themselves say (Chapter 1 Introduction, A. Background, page 8) of their salience: “These guidelines are the basis of the (HPC) review process and the foundation for decision-making by the Commission.” The guidelines then in detailed provisions state how strictly projects should be judged, and in some cases suggest a complete bar or a specific requirement, while in others leave it open to judgement on “a case by case basis.” Plus the commission on advice of staff has developed its own rules, sometimes in explicit contravention of provisions of the guidelines. Finally the guidelines themselves are in many places poorly written, sometimes contradicting themselves.
North Court Associates claims a number of substantial legal errors in the HPC’s handling of the church case (formally two cases HPC14-583 demolition, HPC14-584 additions.)
On the demolition the law suit argues that the church garage being demolished is in fact a ‘contributing resource’. City staff were wrong, Bridgford said, in describing the garage and landscape features as built after 1967 and therefore not 50 years old – the test for historical significance under HPC Guidelines. In fact the garage is shown on 1960 Sanborn maps so it is at least 55 years old. Further 110 North Court Street has an easement with the church dating back to 1947 which is likely to be about the time the garage was built – making it about 67 years old.
At the HPC hearing historic staffer Lisa Murphy acknowledged she might have been mistaken in dating the garage, but she added that it was still not a “contributing resource” since it had no “historic or architectural significance.” The Commission motion to approve demolition was then amended to omit reference to the age of the garage and stating it was “is not contributing because it a structure that does not help define the historic district, and does not add historical or architectural value to the historic district since it’s just cement block.”
But there’s a problem – absurd as it seems the Guidelines explicitly protect concrete block garages
Buildings of ’cement block’ – or accurately concrete block – are regarded as established long enough to be worthy of historic preservation in downtown Frederick. Concrete block buildings are frequently classified by City preservation staff and by the Commission as historic ’contributing resources’.
Property owners often face HPC resistance to even making changes to concrete block garages, let along demolishing them. For example City historic preservation staff have opposed removal of a concrete block addition on the west end of the splendid unroofed stonework of the General Engineering building at East All Saints and South Carroll Street. Also in Austin Alley and off North Court Street concrete block garages have been classed as historic ‘resources.’ Bridgford himself faced major City/HPC resistance to his renovation of a concrete block garage in the private alley south off W2nd Street mid-block between Market and Court streets. That garage is just feet away from the Evangelical Church garage which in this hearing was waved through, unanimously after almost no discussion.
The Guidelines in Chapter 6 Guidelines for Special Building Types, G. Residential Garages, p100 actually list concrete block garages among those to be preserved, and they illustrate the chapter with a photograph of a concrete garage off Klineharts Alley (25W3rd).
The Commission motion to allow demolition of the garage at the rear of 15E Church on the grounds it was “just cement block” showed a flagrant disregard for the Guidelines, it will be argued in court.
‘Or’ is ignored – HPC misinterprets Guidelines on “contributing resource” law suit charges
In HPC14-583 the Commission managed to highlight a habit it has of playing fast and loose with the Guidelines on what is a “contributing resource.” The litigant in this case maintains the Commission is bound by a strict reading of the Guidelines which lay out three criteria for being categorized as a “contributing (historical) resource”. Significantly he says the ‘or’ before the listing of the third criterion makes clear that any one of the three is enough to dictate a contributing status. Yet in the church case case Lisa Murphy the senior City historic preservation officer, the City attorney present and the Commission all spoke as though failing to meet one criterion was sufficient to make the structure ’non-contributing,’ and therefore not in need of being ‘judged strictly’ for compliance with the Guidelines. That flies in the face of the clear meaning of the Guidelines, the litigant argues, since the Church’s garage was conceded to go back more than the 50 years that makes it within the “period of significance’ and meeting the needed criterion to be a ‘contributing resource.’
The law suit adds: “There are notable obstacles to demolition in the city Land Management Code and the Commission guidelines that unlike other applications make it very difficult, if not near impossible, for applicants to secure approval for demolition of resources (any “building, site, structure, object or part of an object”) judged to be significant and contributing. §§423(b)(4)(C)(iii), (b)(5)(A), LMC. “
“The Commission not only deviated from the historic district guidelines when making its decisions in this case, it simply ignored the plain language of the zoning code requirements for review of demolition applications. The Commission decisions failed to abide the public purpose of the State of Maryland and the City of Frederick to preserve an indisputable ‘contributing’ historic garage resource built during the city’s historic ‘period of significance’.“
The court filing says that the Commission “may have been led astray” by erroneous statements by City staffer Lisa Murphy. Her statements were “a misleading opinion and argument that is not supported by any facts in the record, and is contrary to the express language in the guidelines,” the appeal document claims.
“The only reasonable conclusion that could be reached by the Commission is that as a matter of fact and law the applicant’s garage was a contributing resource requiring the demolition application to be ‘judged strictly’…The Commission failed to abide the code, the guidelines, and its own rules of procedure, and thus its decision to approve demolition of the garage was erroneous as a matter of law.“
Another legal error was committed, the court document says, in failing to provide evidence of an inspection by commissioners of the structure or site to be demolished. The site includes portion of a shared driveway to West 2nd Street in which Bridgford owns an easement.
HPC rules of procedure “trash” due process, probably illegal
The N Court lawsuit argues that the HPC’s rules of procedure themselves amount to a denial of due process, citing
- a 3 minute limit on speaking time for an aggrieved neighbor to speak and no opportunity for rebuttal versus 15 minutes presentation time and 10 minutes rebuttal time for the applicant, and unlimited time for staff
- no opportunity for the neighbor to call or question witnesses or to make a reply or rebuttal
- no avenue for a neighbor to appeal a hearing decision
The court filing says: “The Commission hearing process is so unfair and fundamentally flawed constitutionally that the process and all decisions flowing therefrom are probably illegal and unenforceable with respect to any third person aggrieved by the decision.”
Major new building
The contested ruling by the HPC revolves around an ambitious expansion by the Church. According to an April 21 report by the Frederick News Post – which made no mention of the contentious HPC case or the litigation it has spawned – the project will add 8,000 square feet to the church’s social rooms allowing it to accommodate up to 250 people versus 125 in the present room under the church.
Groups cited as likely to use the space include: Frederick Children’s Chorus, Guiding Eyes for the Blind, Mothers Against Drunk Driving, Alcoholics Anonymous, and La Leche League of Frederick. Most of the new meeting space will be underground, and a new parking lot will be built on its roof. there is also a 2 story link building with a stairway between the new and old.
North Court Associates complained that not only the church garage but the landscaping is protected by the historic district guidelines. Part of this is the easement owned by North Court on the Church property.
They say in a bracketed appeal against HPC14-584 the hearing on replacement plans: “The construction project will require the removal by demolition and excavation of the entire rear portion of this historic church site and the entirety of its landscape representing the last substantial green space in this most historic of all blocks in the historic district…Applicant’s plans completely transform the current landscape and setting of the church site by replacing the entire rear area with a modern designed court yard and above ground addition structures using modern exterior materials consisting of mainly glass, steel, concrete, brick, and tile…The plans show no effort to replace the screening hedges and shrubbery at the rear of the property and no effort to tie the proposed new landscaping elements and materials into the historic neighborhood setting, and thereby preserve the historic and architectural integrity and value of the church property and the adjacent historic properties.”
North Court Associates (NCA) easement on the north end of the church property deprive the HPC of authority to approve plans for demolition and construction located on that easement they say: “The Commission’s final approval of applicant’s plans is tantamount to authorizing ERUCC and its agent’s to deprive North Court of its property rights without due process of law.“
NCA’s Cliff Bridgford clashed with HPC attorney Scott Waxter over his repeated efforts to reformulate Commission motions during the second hearing. Bridgford also claims the HPC improperly voted for demolition work on the church itself at the second hearing, at the same time that it approved the replacement building.
“The Commission at the hearing on August 14, 2014, failed to follow the Code application, review, and decision making process that required the Commission to first approve applicant’s plans to demolish the rear portion of the church site before reviewing the application for approval of the replacement-addition plans.“
NCA argues that the Guidelines protect the site and landscape and that these were simply not referenced by staff or the Church’s representative in the hearing, and approved by the commission with barely no discussion. After Bridgford had raised the issue a commissioner commented that he found the landscaper “hugely uncompelling.”
Bridgford: “What is compelling is the lack of factual findings and ‘substantial evidence’ to support the Commission’s decision.”
The Church odd neo-classical building with twin bell towers and an attached 1960s suburban type house has a history of change that is the despair of museum-mentality historic preservationists. The question screams out: Just what are you preserving? Some major parts of the building there goes back to at least 1848, the year carved in the grey stone plinth. It was the earliest site of the Womens’ College of Frederick, later renamed and relocated northwest as Hood College. How many demolitions and additions were needed to bring it to its present state is unknown. It was one of several places in Frederick that gave hospital shelter to the wounded brought down on wagons from the terrible civil war battles to our west (Antietam) and north (Gettysburg) in 1863. Major changes to the building were made in the 1890s. The church there has gone through many mergers, reorganizations and renamings.
It now has the permits it needs from the City for the $4m extension and there was a groundbreaking ceremony May 3. Cliff Bridgford’s law suit looks is likely too late to stop
COMMENT: We’re glad the church is able to expand its activities with the addition. Downtown Frederick has evolved and adapted over the years to new uses and expanded needs, and we need to continue to be able to do so.
We consider the church complex its four large faux-classical columns, Roman temple-like portico, oversized bell towers, and attached suburban tract house is among the ugliest and most ungainly pieces of architecture in the city – a ridiculous pile. But that’s just one opinion, and a major part of Frederick’s charm is its amazing mix of different styles reflecting different times and tastes.
The building suits its owners and good luck to them with their plan to add capacity.
At the same time the HPC review process was a travesty.
Neighbor Cliff Bridgford seems to have a very solid multi-count legal case against the city. The HPC’s handling of his objections was an appalling abuse of City power. When he spoke he was repeatedly interrupted by the Commission chair Scott Winette.
Capricious is the best characterization of the city’s historic regulation in this as in many cases. Contrast the handling by the HPC of the church case with one at 107 Record Street, just a couple hundred yards away, both involving similar issues of greenspace.
In the case of the 15W Church St plans the staff hardly mentioned the greenspace issue although there’s a whole back lawn being taken for building, and a tree goes. At 107 Record Street homeowner Jennifer Weinberg who just wanted to install paving stones and new planting in her front lawn. Yet she was subjected to strong, repeated staff attack, forced to do multiple redesigns, and workshops, all in the name of preserving greenspace.
The Guidelines declare that “all proposals” will be evaluated for their impact on greenspace in the historic district. However in practice there is little concern for greenspace in staff reports or any discussion of it in workshops and hearings.
Jennifer Weinberg’s treatment was extraordinary.
Guidelines are hysterical about “threats” to greenspace
Under an abstruse, little known, rarely enforced provision of the Frederick historic district Guidelines 30% of yards outside the primary structure is required to be “greenspace.”
“…The Commission will evaluate all proposals for new development, additions, parking and other paving for their impact on greenspace in the Historic District. Residential yards must maintain a 30% area of greenspace out side of the primary structure. Garages, new additions and paved areas cannot occupy more than 70% of the lot, not including the primary structure,” according to Chapter 8 Guidelines for Landscapes and Streetscapes, A. Definitions, 3. Greenspace, p117.
The paranoia underlying these provisions for supervising landscaping is expressed in Chapter 2, part C. Historic Landscapes in the Historic District, p31 of the Guidelines: “For many decades Frederick’s open and green spaces remained relatively intact; however, today these spaces may be the most threatened historic resource in the Frederick Town Historic District.” (We guess they must have got word of the City economic development shop’s secret 2008 study by a New York consultant of the potential of auctioning five highrise pads in Baker Park – two for commercial towers, three residential.)
It is a telling commentary on the City’s mismanagement of the HPC and its disregard for the Guidelines they supposedly work under that they almost never address what the guidelines calls “the most threatened historic resource in the historic district.”
Hopefully a judge in the Circuit Court will throw out the decisions in the 15W Church case as a travesty of due process and shake up the City and the HPC. Given the glacial speed of the courts by the time that occurs the church should have its extension close enough to completion to be a fait accompli.
The City’s central problem will remain – (1) staff playing favorites with wave-throughs for the favored as in this ERUCoC case, staff who otherwise act like frustrated museum trustees to resist additions and rehab in a city that needs to change and grow, and (2) 160 ridiculous pages and 50,000 words of historic Guidelines that make no sense, are little understood, and are capriciously applied.
- editor 2015-05-13
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