Plodding through the Guidelines from the beginning we find the first six pages un-numbered, contain Contents etc.
p6 ACKNOWLEDGEMENTS reports “Text by Barbara Wyatt” – NOTE Wyatt says this is incorrect, she did not write the text, just an early draft which bears little relationship to the text of the Guidelines.
no page 7
p8 Ch 1 INTRODUCTION
A. BACKGROUND Guidelines were “developed to assist Historic Preservation Commission (HPC) review exterior rehabilitation of historic properties, new construction and demolition in the Historic District.”
NOTE first: no mention of restoration or reconstruction, often described as the responsibility of the HPC to supervise in the historic district.
NOTE second: the soft rendering of the role of the Guidelines, just “to assist the HPC.”
The intent is have all properties rehabilitated “to best preserve their essential historic qualities” and new construction is “sensitive to the scale and historic nature” of the historic district.
“These guidelines are the basis of the (staff and HPC) review process and the foundation for decision-making by the Commission.”
NOTE, this last sentence is the hard version of the role of the Guidelines, making them sound like firm Rules or legally based Regulations. Contrasts with the soft version in the first sentence, making them sound more like guidance.
p9 B and C say the Guidelines must conform with City, state and federal law, and in case of conflict the higher law prevails.
NOTE: that’s theory unless you intend to spend a fortune on litigation. In the real world of most citizens the HPC rules.
D. the HPC must follow the Rules of Procedure, a separate document
E. The Historic District under HPC jurisdiction is a special zoning ‘overlaid’ on top of other zoning called the Historic Preservation Overlay zone.
F. Any building permit application in the historic district goes to the HPC for approval first. If approved it goes on to be considered for approval, amendment, or rejection for other zoning regulations.
G. International Building code used.
H. REHABILITATION is defined in 1. as allowing efficient reuse of a building through repairs, alterations and additions “while preserving those portions which convey its historical, cultural or architectural values.”
NOTE, this is one of those dangerously fuzzy provisions that gives property owners no real guidance and provides city staff and the HPC huge latitude to permit what they like, and to reject what they don’t.
There is room for endless argument about the “historical, cultural and architectural value” of any building, and then room for just as much argument on whether a particular building proposal does or does not “preserve” those values. In the end they rule.
2. defines and distinguishes Rehabilitation from Preservation (maintenance as-is), and Restoration (taking a building back to what it once was, Colonial Williamsburg style or locally Schifferstadt.
New Construction is “addressed as an aspect of Rehabilitation.”
3. “Application of other treatments. If the Commission finds that a different treatment would be preferable for a specific property, the Commission shall require application of the standards and guidelines developed by the Secretary of the Interior for preservation, restoration, or reconstruction.”
NOTE, this ‘treatment preference’ is a sweeping power with huge implications for property owners. It says the HPC has the power to decide that rather than say rehabilitate a building with additions or new construction (Rehabilitation), another ‘treatment’ is needed – strict preservation of the building as-is (Preservation treatment) perhaps, or even Restoration, taking the building back to what it was at some point in the past.
COMMENT: Without any criteria for a decision on the “different treatment” – say Restoration rather than Rehabilitation – the property owner has no protection in the Guidelines against a decision by the HPC on “treatment” that will drastically reduce the value of the building, and/or drastically reduce the usefulness of the property. A recent example was 1705 North Market Street where staff said the building complex needed to be considered as a whole because they buildings together provided a “narrative” on how Coca Cola bottling was done. In other words they wanted Preservation treatment freezing the buildings as they are. The buyer of the property wasn’t interested in trying to restore garages and a warehouse at the rear. She was not wanting to get in the business of running a Coca-Cola historic museum, as City staff and the Commission proposed. She wanted to maintain the facade of the building, rebuild and add new rental units. She was only interested in Rehabilitation treatment.
Fortunately in this particular case the Board of Aldermen prevented the HPC staff from killing the development, but it was a close shave 3 votes to 2.
In another case where ‘treatment’ was the issue the Commission itself voted down 4 to 2 an extremist City staff effort to turn a simple roof renewal preservation project at 111W4th into a restoration of 50 year old standing seam metal. In both cases the property owner simply said they couldn’t deal with the extra cost and uncertainty of City preservation staff control, and would be forced to walk away from the properties.
But the ease with which this single sentence ‘treatment preference’ clause in the Guidelines can be manipulated by preservation extremists is breathtaking. As George Will wrote in the Hobby Lobby context: “The constitutional structure we have is the kind progressives prefer, wherein more and more decisions are made by unelected and unaccountable executive-branch ‘experts’ exercising vast discretion.”
So unelected City staff and unelected HPC commissioners have vast discretion under the Frederick historic preservation Guidelines through the ‘treatment clause’ – as to whether your property should be subject to preservation, restoration or rehabilitation.
I. BASIS OF THE FREDERICK TOWN HISTORIC DISTRICT DESIGN GUIDELINES
1. US Secretary of Interior’s ten standards for historic preservation practice developed for federal funding and recognized by Md Historical Trust
2. Interpretation follows NPS Guidelines for Rehabilitation these being explanations of the ten standards
J. (US) SECRETARY OF THE INTERIOR’S STANDARDS FOR REHABILITATION, FROM CODE OF FEDERAL REGULATIONS 36CFR68.3(B)
1. Minimal change to its distinctive materials, features, spaces, and spatial relationships
2. Historical character to be retained and preserved
3. Each property recognized as a physical record of its time, place and use. Avoid falsity, conjectural additions
4. Retain changes that have acquired historic significance
5. Distinctive materials, features, finishes and construction techniques & examples of craftsmanship that characterize to be preserved
6. Deteriorated historic features to be repaired, not replaced. When deterioration severe replacement to match old in design, color, texture and if possible materials. Replacement of missing elements to be substantiated by documentary or physical evidence.
7. Work gently
8. Archeological resources preserved
9. New additions, exterior alterations mustn’t destroy historic materials or features or spatial relationships of the property.
10. New construction should allow for removal and restoration.
K. GENERAL PARAMETERS FOR REVIEWING CHANGES IN THE FREDERICK TOWN HISTORIC DISTRICT, addressing rehab and new construction.
1. Hierarchy of facades ( no cedilla under c)… more leniency on less prominent facades
NOTE: the word leniency is appropriate since it reflects extreme preservationists’ view of proposals for development. Leniency is accorded a convicted felon.
2. Character-defining features are described as unusual features or those that distinguish a building from others…. Character-defining elements must be identified, retained and preserved to the fullest extent possible.
NOTE: this is an unusual definition. The normal dictionary sense of character-defining is the most prominent or major feature. The Guidelines’ non-dictionary definition has implications. It allows the HPC to seize on small inconspicuous features of a building and argue these must not be touched because they define its “character.” The dictionary definition would say that the house’s character was that it was, say, a Federalist townhouse as defined by its streetfront, and suggest that not be changed.
3. Original materials. Every effort must be made to retain preserve… Non-original materials that the Commission believes have accrued significance also must be retained and preserved, if possible.
NOTE: this is hugely arbitrary and potentially restrictive, and provides the opportunity for highly capricious decisions. What is original can be difficult to establish. And possible? What is significance and what is every effort. Here is fuzziness taken to such a high level a citizen can be ordered to do anything the Commission pleases with their property.
4. Inappropriate actions… removal of character-defining elements, radical alterations, unhistorical additions, demolition of significant, contributing property.
NOTE: more fuzziness, more uncertainty beforehand, more opportunity for arbitrary decisions. They rule!
5. False history. Changes and features that create a false sense of history – pseudo-historic features – are not permitted. New features may “subtly convey” their contemporary construction distinguishing it from the historic.
COMMENT: personally I like this approach. I’m not keen on most modern efforts to be historic. But should the power of a city government commission enforce such a preference? What harm is done by some others making changes that mimic historic elements? Downtown Historic Frederick got to be the charming place it is through tolerating different esthetic and style decisions by individuals. It might be a tidier place if it had suffered from an all-controlling city Commission, but it would also be much poorer and less interesting.
6. Missing features if replaced should be genuine.
NOTE: Yes but do we really need a city commission to decide this stuff?
7. Open spaces historically designed should be maintained and preserved.
COMMENT: If it is part of the streetscape or public realm, YES, but if it at the rear of houses and private then NO, we need to respect property owners’ rights and trust them to make their own decisions for stuff in their own back yards.
8. Adaptive reuse is encouraged so long as ‘character-defining features’ are not compromised.
NOTE: fine as long as the character-defining features are defined as the prominent and major streetfront aspects of the building, and the meaning is not twisted to cover minor features and those outside the public realm.
9. Energy conservation measures must be compatible with Guidelines or alternatives found.
NOTE: the HPC generally bans modern insulating double glazing forcing buildings to lose prodigious amounts of energy through their single glass panes, or allowing rather ugly storm windows. This is a case of preservation for preservation’s sake since only someone closely looking at glazing will notice the difference. Double glazing will have no discernible impact on the look of the historic district, except perhaps to improve it by eliminating the need for storm windows. The insistence on maintenance of single glazing is an example of preservation extremism promoted by City preservation staff and extremists on the HPC.
L. WORK THAT IS REVIEWED by HPC
Scope of HPC control includes but not limited to:
1. Alteration defined as all exterior changes to buildings, sites, structures or objects.
All facades, roofs and other changes to the building ‘envelop’ (envelope?) are subject to HPC control, as well as changes to secondary buildings (garages, sheds, greenhouses, pergolas) and “changes to settings and landscapes.”
COMMENT: this is way too intrusive. It is is control for the sake of control, not for historic preservation. Petty controls like this encourage disregard for the law since the City cannot realistically police such minor matters. Only when neighbors make grudge complaints are such unpermitted changes investigated.
2. Maintenance that can damage masonry or other materials.
COMMENT: Property owners have every incentive not to damage their own buildings during maintenance and there is no need for government officials to butt in, and nothing they can do to enforce such rules anyway.
3. New construction, reconstruction and additions.
COMMENT: this fails to respect the distinction between the legitimately regulated public realm of the streetscape where most people accept the need for some regulation and the rear of buildings and lots which are a private realm in which the HPC has no legitimate presence.
4. Demolition of any ‘resource’ in the historic district.
5. Moving any buildings, structures or objects.
COMMENT: again these powers are ridiculously all-encompassing and go far beyond what is needed for reasonable historic preservation. A compost bin is an ‘object’ and technically the HPC can claim control over whether it is moved to a different position within someone’s yard, or demolished for a new one.
M. WORK THAT IS NOT REVIEWED BY THE HISTORIC PRESERVATION COMMISSION
1. routine maintenance that doesn’t affect exterior fabric or features, examples cited being: replacement of broken glass, reattachment of loose downspouts, and replacement of deteriorated flashing. Also see:
2, Interior work
3. Paint colors of siding, doors, windows, trim (but roof colors, color of signs and other building accessories is regulated.)
N. REVIEW OF ALL FACADES
All facades of buildings are subject to HPC review and orders, whether visible from a public way or not, with “more lenient” treatment by the HPC possible for facades not visible.
COMMENT: again the excessive intrusiveness into the private realm, although possible concessions about non-publicly visible facades more ‘leniently’ treated. Non-visible features are of no public interest and the HPC has no business regulating them.
O. ‘REQUIRED CONSIDERATIONS’ in HPC review:
1. The historic, archeological or architectural significance of the site or structure and its relationship to the historic, archeological, or architectural significance of the surrounding area.
NOTE: This is a sweeping provision the effect of which depends entirely on subjective judgement about ‘significance.’
2. Relationship of exterior architectural features to the remainder of the structure and surrounding area
NOTE: the meaning of this is unclear. Relationship? How is that to be judged?
3. General compatibility of the exterior design, scale, proportion, arrangement, texture and materials proposed
QUESTION: compatibility with what exactly?
4. Any other factors, including aesthetics which the HPC considers pertinent.
COMMENT: This catch-all addition ‘anything else’ provides the HPC with a license to consider absolutely anything, and begs the question: Why bother with Guidelines if the Commission can consider absolutely any aspect of a project. This is an invitation to arbitrary and capricious decisionmaking and maximizes the uncertainty of property owners as to how projects will be assessed.
P. DEGREE OF IMPORTANCE
1. Required consideration. HPC must consider the historical, archeological, and architectural value of the resource, including its integrity. Resources are contributing or non-contributing.
A. Contributing resources (CRs) are buildings, structures, sites or objects, or parts thereof that
1. help define the district
2. add historical or architectural value
3. built at least 50 years ago or if younger, if they are important for association with a significant event, person, or architectural movement
Only needs to meet one criterion for significance
B. Non-contributing resource (NCR) if do NOT help define the historic district, don’t add historical or architectural value, are <50 years
Q. JUDGMENT OF PLANS
The HPC “shall strictly judge” plans for sites or structures determined to be of historic, archeological or architectural significance – contributing resources.
“…may not strictly judge plans for a site or structure of little historic, archeological or architectural; significance, or involving new construction (non-contributing resources) unless the plans would seriously impair the historic, archeological or architectural significance of the surrounding site or structure.”
COMMENT: the contributing or non-contributing judgment plays a major role in HPC discussions and in the extent of ‘leniency’ granted to miscreant property owners wanting to preserve and rehabilitate their buildings. It is another source of arbitrary decisionmaking by the HPC since even objects and parts of buildings can be deemed historically significant causing the whole property to be deemed a contributing resource and deserving of strict application of the Guidelines.
This goes well beyond anything in the US Secretary of the Interior’s Standards and Guidelines (US Standards) – http://www.nps.gov/hps/tps/standguide/overview/choose_treat.htm – in allowing tiny details chosen by Frederick City staff preservation staff and HPC Historic Commissioners to be an issue for ‘preservation’ regardless of their real importance.
The Frederick Guidelines place a heavy blanket of Commission control over virtually all buildings in the historic district regardless of their historic significance. This too is far more severe that the US Standards which state: “New additions should be designed and constructed so that the character-defining features of the historic building are not radically changed, obscured, damaged, or destroyed in the process of rehabilitation.”
R. PERIOD OF SIGNIFICANCE
defines ‘historic’ as 50 years or older unless the younger building is related to “an event of great historical importance, a person of national or international significance or the work of a master architect or builder.
COMMENT: many people think 50 years is not historic. Why not 100 years? Or pre-1900?
S. DEVIATION FROM THE GUIDELINES
HPC may not deviate form the Guidelines unless the “integrity” of the streetscape and surrounding historic properties is unaffected In the case of a designated contributing resource it must be preserved as such a “contributing resource, 2. non-contributing resources allowing deviations must retain “the design integrity of the resource itself.”
T. REQUIRED FINDINGS FOR DEVIATION
Deviations from the Guidelines must follow findings that: 1. the deviation is not contrary tot he purpose and intent of the Guidelines, or 2. any loss of historic fabric or character is ameliorated by the new work.
COMMENT: yet more serious sounding preservationist lingo, but so devoid of precise meaning as to allow the HPC huge discretion. Almost any change can be described as compromising the ‘integrity’ of one of the objects of preservation.
U. PERMITTED ACTIONS by HPC
HPC can approve, approve with conditions, deny or postpone (‘continue’)
After a proposal is denied it may be resubmitted so long as it is significantly modified. The same proposal may be resubmitted after a year. Or the rejectiion by the HPC may be appealed.
W. A permit is good for 2 years, but extensions may be granted.
X. HPC meeting schedules
Y. Workshops allow applicants to get reactions to their proposal from staff and commissioners
Z. Hearings are action meetings where the Commission hears the case and votes to approve, deny, or postpone.
Administrative approval: a category of cases approved by staff, for which there is no hearing or commission vote.
Emergency approvals – where immediate work is needed to stabilize a building.
a copy of the Guidelines can be downloaded here but be patient, it’s book length: