Preservation

Limit poorly-researched historic designations in Montgomery

by David Rotenstein   •   November 15, 2010 3:43 pm

Last year, Montgomery County Councilmember Mike Knapp proposed making it more difficult to designate properties as historic erroneously or against the owner's will. Preservationists opposed the proposal, but in fact it would help the cause of historic preservation and make the designation system fairer.

Silver Spring's 1939 World's Fair Home. Historic, yet undesignated.

Knapp, who did not seek re-election this year, wanted to revise the law by removing a controversial criterion for historic designation and by including provisions for owner consent prior to any property being designated historic.

While serving for six years on the Montgomery County Historic Preservation Commission, I saw many designation applications that were well-researched and solidly defensible. Others, including some prepared by Montgomery County Planning Department staff and local historic preservation consultants, relied on highly questionable sources to argue a property's historical significance.

Many of these applications rested heavily on scanned copies of historical Washington Post articles and little else. I have often wondered whether some consultants could continue to do business if the searchable archive of the Post suddenly disappeared.

When first confronted by Knapp's proposal, I toed the historic preservation line that the amendments to the law were unacceptable. As I wrote in a recent Montgomery Gazette opinion piece, my views have changed. A historic preservation designation and regulatory process that does not provide property owners with an opportunity for an independent review of the documentation being used to determine which properties are significant and which are not is inherently unfair to the property owners and to taxpayers.

Once a property owner gets caught up in a designation process initiated by a third party, like a local historic preservation advocacy group, there are few options outside costly litigation to have a mistaken designation undone. Even when Montgomery County realizes that it has mistakenly designated a property as historic, it is a time-consuming and costly process to reverse, as one Damascus family is learning.

Anyone—a property owner or a third party—can nominate a property to be designated in Montgomery County. If this designation is successful, the property is subject to the regulatory oversight of the HPC and it may be eligible for state and county tax credits for qualifying rehabilitation and restoration work. To make significant changes to a designated property, like putting on a new roof or an addition, replacing windows, or demolishing an outbuilding, property owners must apply for a Historic Area Work Permit (HAWP) from the HPC.

But what if the historical research used to make the historical significance case for an architecturally unremarkable building is incomplete or incorrect? What remedies are available to property owners under the county's current law to ensure that mistakes do not happen? And, equally important, how are county taxpayers protected from unnecessary regulation of properties that in fact meet none of the county's historic designation criteria?

Historic preservation advocates and overworked and underfunded county historic preservation staff routinely take shortcuts that result in bad research and poor regulatory policy. In the case of the county's purchase of the former Riley farm where Josiah Henson worked as a slave, precious public resources were spent on purchasing a property based in large part because oral tradition and county designation documents made a direct association with Henson and a surviving log building on the property known as "Uncle Tom's Cabin."

Although some historic preservation advocates claim that there are only benefits associated with historic designation and preservation, they ignore the very real transaction costs associated with regulating historic properties. The county must review all HAWP applications and these reviews frequently involve visits to sites around the county; reports are written for review by the HPC; and, hearings are held to evaluate the applications. If property owners are unsatisfied with the HPC's decision, they may seek relief from the Montgomery County Board of Appeals.

Tax credits, grants, and other funding sources so often cited by preservation advocates and planners do little to cover the actual costs to the entire county for regulating historic properties. Earlier this year I met with Councilmember Knapp and council attorney Jeff Zyontz to discuss reviving the 2009 amendments with significant modifications. Among my recommendations:

• Require all third-party designation applications to be subject to an application fee to subvent the costs of an independent review of the historical documentation. For proposed designations begun by the Montgomery County Planning Department as part of its regular work plan, a fee may be added to historic area work permits;
  
• Reduce the number of designation criteria from nine to four by adopting the Criteria for Listing in the National Register of Historic Places;
  
• Eliminate the "familiar visual feature" criterion;
  
• Require a majority of property owners in proposed historic districts to approve of the proposed designation;
  
• Do not require owner consent for individual property designations (retain existing); and,
  
• Permit Historic Preservation Office staff to perform expedited HAWP reviews for many projects (introduced by HP office staff during the 2009 amendment discussions).

Historic preservation is dear to Montgomery County, as the overwhelming opposition to Mike Knapp's 2009 amendments demonstrates. But if Montgomery County wants to keep its historic preservation program intact, steps must be taken to ensure that designation documentation is defensible. Wikipedia, the Washington Post archives, and the circular use of earlier flawed designation documents to justify regulating historic properties are not sufficient in Montgomery County nor anywhere else.

These aren't anti-preservation statements; they are pro-preservation. By constantly pushing for higher standards and consistency, historic preservation advocates will gain currency with decision makers who will find fewer ways to question preservation's legitimacy. Although historic preservation laws serve a valuable function, their implementation may not always be fair and ultimately may not be in the public interest if properties that are demonstrably not historic are designated historic.

Disclosure: I am the principal in a business that on occasion does historic preservation regulatory work in Montgomery County and elsewhere.

David Rotenstein is the proprietor of Historian for Hire, a historical research consulting service based in Decatur, Georgia, and blog about history and culture in the Greater Washington region. David has a doctorate in folklore and folklife from Penn and is a former chairman of the Montgomery County Historic Preservation Commission. Between 2009 and 2011, he served on the Montgomery County Zoning Advisory Panel.