More often than not, protecting the places that matter in our cities and towns starts with local preservation ordinances. While they vary from place to place (after all, the best ordinance is one that is tailor made to meet the unique needs of a community), these land-use laws set forth rules and regulations for the designation of - and any subsequent alterations to - a community's historic properties.
But what happens when these effective lines of defense become threatened just like the irreplaceable resources they are designed to preserve?
Unfortunately, this is a question that is currently front and center for preservationists in Montgomery County, Maryland, where an entire local preservation program is under intense scrutiny following the introduction of amendments that would significantly alter an ordinance with proven effectiveness.
Announced last February, these amendments would establish an elevated threshold for designation should a property owner object to a nomination, effectively preventing the designation of new resources and potentially cracking the door for future efforts to de-designate already protected properties. They would also delegate final decision-making authority to the county’s Planning Board, which would enable it to disregard the informed recommendations of the Montgomery County Historic Preservation Commission.
Last night, a well-attended public hearing was held before the Montgomery County Council, and as you can imagine, some extremely lively debate ensued. During the meeting, concerned citizens and national, state and local organizations – including the Maryland Historical Trust, Preservation Maryland, Inc., Montgomery Preservation, Inc., and the National Trust for Historic Preservation – rallied together in a strong showing of opposition to the proposed amendments. While all agreed that the current law could be improved, many questioned the legality and wisdom behind the proposed legislation.
More specifically, the legal staff of the National Trust for Historic Preservation prepared a memorandum in advance of the hearing that questions the county’s authority to adopt the proposed amendments under state law. At the hearing itself, Robert Nieweg, director and regional attorney of our Southern Field Office, delivered the following testimony:
The National Trust for Historic Preservation does not support the proposed amendments to Montgomery County’s historic preservation ordinance.
We respectfully encourage the County Council to table the proposed amendment and, instead, consider initiating a comprehensive examination of the county’s historic preservation program.
The National Trust believes that the amendment under consideration by the County Council would fundamentally alter the preservation program in ways which raise serious legal and public policy issues.
First, the proposed amendment would change key elements of the county’s current designation structure in a manner that would, to a large degree, leave final historic designation authority in the hands of the Planning Board, rather than the Council itself.
In fact, the proposed amendments would enable the Planning Board to disregard recommendations by the Historic Preservation Commission for reasons unrelated to the merits of the property.
Such a delegation of authority raises serious legal concerns.
- The proposed amendment would preclude County Council review of a Planning Board decision to deny historic designation. This change appears to conflict with the requirement of the Regional District Act that master plan amendments be made at the direction of the Council, rather than the Planning Board.
- The proposed transfer to the Planning Board of final decision-making authority for certain designation decisions would effectively delegate the Council’s authority to an administrative body that does not have detailed subject-matter expertise in historic preservation. This delegation of authority would be vulnerable to legal challenge.
Second, the proposed amendment would introduce special standards and procedures whenever a property owner declines to consent to designation.
- The Regional District Act requires that the criteria for designation of historic properties be “not inconsistent” with the criteria used by the Maryland Historic Trust to identify properties for listing on the National Register of Historic Places. These criteria focus specifically on the merits and significance of the property and do not consider the personal views of the property owner.
- The proposed requirement for a supermajority vote of the Planning Board in the absence of owner consent appears to conflict with the Regional District Act, which states that the Historic Preservation Master Plan is to be amended by three affirmative votes of the Planning Board.
- Adoption of the proposed owner-consent provision would jeopardize Montgomery County’s eligibility for Maryland state preservation funds, which the county has used to help support a wide range of projects such as research, community planning, training and public education.
Given the serious concerns raised by the proposed amendment before you tonight, the National Trust respectfully recommends that the County Council should initiate a comprehensive review of the county’s historic preservation program to fully explore the program’s challenges and a range of solutions with the goal of enhancing and strengthening the highly regarded program.
Thank you for considering the views of the National Trust for Historic Preservation.
At the close of the hearing, the County Council announced that the record on the proposed amendment will remain open until May 22, at which time it would be taken up by the Planning, Housing and Economic Development Committee. Information on the bill and contact information for submitting written testimony is available on the Council’s website.
Please stay tuned to PreservationNation.org as we continue to monitor this situation.
- Julia Miller
Julia Miller serves as special counsel for the National Trust for Historic Preservation.
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