2014, June 12 | Thursday 1:23 am

by Peter Samuel
pic Waxter

HPC attorney Waxter

The Frederick Historic Preservation Commission (HPC) could be in trouble if it maintains a rule against taking testimony on the likely costs of its actions. At several hearings recently Commission chairman Scott Winnette has ruled out of order any testimony on the financial consequences of restrictions it orders. The Commission cannot take such testimony and must not consider costs to applicants, Winnette says. He has been fully supported in his rulings by Scott Waxter, the city attorney assigned to advise the Commission.

We’ve had an extended back and forth with Waxter by email (link to come).

His basic argument is that the Guidelines adopted by the Commission contain no provision requiring the Commission to take the cost consequences of its rulings into account. That’s quite true, unfortunately.

The Guidelines are written as if costs don’t matter.

If the Commission decides for example that no stock front door is suitable then the fact that a custom-built door will have to be made to special order, and cost five times as much, cannot be considered by the Commission. At one hearing recently a landlord who wanted to rework historic window sashes to install double glazing and save on winter heating bills was told flatly the Commission could not consider the extra costs this would impose. He had to keep the old single pane glass regardless of cost.

Under the costs-not-our-concern rule the Commission cannot even be allowed to know what it is costing property owners, let alone attempt to balance historic preservation against cost.

This is clearly not the intent of City government.

The Law demands concern for economic consequences

The Historic Preservation is legally grounded in the City’s Land Management Code under Article 4, Zoning, section 423 Historic Preservation Overlay (HPO) District p257 where up front its Purpose is safeguard “the historical and cultural heritage” of the City with five objectives, and they are listed:

1. preserving historical sites, structures and districts

2. stabilize or improve property values



3. foster civic beauty

4. strengthen the local economy

5. promote appreciation of preservation

The City’s official website introducing Historic Preservation reiterates these same five points, the lead sentence being: “It is the mission of the historic preservation program to safeguard the historical and cultural heritage of the City of Frederick, to stabilize and improve property values, to foster civic beauty, to strengthen the local economy and to promote the appreciation of historic sites and districts for the education and welfare of the residents of the City.”

see http://www.cityoffrederick.com/index.aspx?nid=225

Notice that objectives #2 and #4 relate to the financial or economic wellbeing of the people of the City and its businesses, making them an integral part of historic preservation as intended by the Mayor and Board, our elected representatives.

Historic preservation moderated by considerations of costs to property owners and consequences for businesses and jobs – ‘moderate historic preservationism’ or ‘pragmatic preservation’ we’ll call it, is what our elected representatives voted for.

By contrast City staff and the HPC Chairman Scott Winnette and a majority of the Commissioners are implementing their own

pic winette

HPC chair Scott Winnette

‘extremist preservationism’ that flagrantly ignores cost and economic consequences (costs.)

Their short justification for ruling that costs are inadmissible in testimony to the Commission is that the Guidelines under which they operate have no reference to costs for applicants. And that’s true. The Guidelines are written to address the first of the five objectives of preservation as defined in the land management code and the policy as laid out on the City website.

Lack of a requirement is NOT a prohibition

The Commission’s attorney Scott Waxter in rulings at HPC hearings and in early exchanges maintained that only matters required in the Guidelines may be considered by the Commission. This is patently ridiculous. Lack of a specific requirement to consider costs is not a prohibition on doing so, especially when costs of HPC action to applicants are extremely relevant to two of the five purposes in which the law is grounded (property values and the local economy.)

If Waxter were to argue this in a court he’d be at some risk of having the City staff’s case dismissed out of hand on grounds “incomprehensibility.” (see nearby ruling)

The official “Rules of Procedure and Regulations” of the HPC – http://www.cityoffrederick.com/DocumentCenter/Home/View/514 – also have nothing to support the Waxter/Winnette rulings that cost consequences and economics of Commission action may not be the subject of testimony and may not be a consideration Incomprehensibility7cin Commission decisions.

Waxter retreats but to absurd stance

At the end of our email exchange Waxter retreated to a slightly less indefensible position legally. He told us – to our knowledge he hasn’t shared this with the Commission so far – that he reads the law now as permitting hearings testimony on the general implications for property values but may not speak to the costs being imposed or the value of lost improvements due to HPC rulings.

But this too is ridiculous. Ordinary applicants – as opposed to land appraisers or urban economists say – have no expertise to speak to effects on general property values. Anything they have to say on this would carry little weight.

And it is irrelevant to the point at issue in a hearing which is – how much is a psarticular historic preservation ruling costing the property owner in extra expenses or lost income, and is the gain in historic preservation worth that much? How much historic preservation bang is being bought for the property owner’s extra buck?

Every hearing of the Commission should be open to testimony on costs of the proposed ruling if the Commission is to be true to the statutory requirements that it contribute to property values and the local economy. Thus if a ruling involves trivial extra cost to the applicant then that will speak to giving weight to considerations of the preservationists.

But if the costs are large and burdensome then the Commission should be far more questioning about how much preservation value it is buying with the property owner’s money. Unlike possible consequences for property values generally and the local economy, typical applicants at the HPC are in a position to give solid testimony on the costs they are being asked to bear and the lost income or value to their particular property of various optional HPC rulings. The applicants are qualified to speak to this, and such testimony is relevant if historic preservation decisions are to be pragmatic and reasonable and supportive of property values and the local economy.

City official has no business supporting cost-be-damned approach

The cost-be-damned approach of preservation extremists at the Commission should not be supported by a City attorney, whose duty is to advise the Commission as to the law governing the HPC and to be concerned about the interests of residents as well as preservationists.

If the HPC persists in suppressing testimony on costs of rulings then – it is arguable – the Commission is in defiance of the law on which its legitimacy rests. The City’s lawyers should be preventing this abuse, not facilitating it.

P Samuel 2015-05-27

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