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Replace or Repair – The Historic Resource Conundrum

Author: Stephen J. Orens Date: 03/16/2016

Categories: Real Estate Law

Maryland jurisdictions, including the Cities of Rockville and Gaithersburg and counties such as Montgomery County and Prince George’s County, have local laws intended to identify and protect historic buildings that are either “stand-alone” historic resources or “contributing resources” within a designated “historic district.”

Historic buildings are, by definition, “old” and often in need of repair and maintenance that may require the repair or replacement of one or more “defining historic features” such as windows and doors. Whether to repair or replace a historic feature is not a decision that owners of historic properties are permitted to make unilaterally.

Governmental approval in the form of a Historic Area Work Permit or “HAWP” (pronounced “HOP”) is required before the owner of a designated historic building can change or alter the building’s exterior features.  Unlike other “building permits,” HAWP’s require approval of a government agency typically identified as the Historic District Commission.  Consultations with HDC staff and a hearing before the HDC are typically required.

A hypothetical example would be a building located in the Historic District in the City of Rockville.  Let’s assume that the building windows no longer function properly, with torn weighted cords and rotted, warped frames.  If you were the owner of the building do you try to repair the windows or do you replace them with windows that retain the historic period appearance of what is there now?

In order to answer that question let’s assume that you obtain estimates to repair and estimates to replace the windows with windows having a similar appearance and discover that the overall cost to repair is significantly higher than the cost to replace and that the economics would not justify the added expense.  What do you do? That is the question.  In order to answer that question you must understand that a HAWP is required and that in evaluating your request the HDC staff will apply  “Standards for the Treatment of Historic Properties”  established by the  Secretary of the Federal Department of the Interior.

Those standards or “guidelines” are described on the Department of the Interior’s Website as follows:

“The Standards are a series of concepts about maintaining, repairing, and replacing historic materials, as well as designing new additions or making alterations. The Guidelines offer general design and technical recommendations to assist in applying the Standards to a specific property. Together, they provide a framework and guidance for decision-making about work or changes to a historic property.”

Although the description is somewhat broad and definitely vague, the actual technical standards applied to the restoration of deteriorated features place an onerous burden on a property owner seeking to “restore” a historic building so that the building remains functional and appropriate for whatever use is intended.

The applicable “Restoration Standards” published by the Interior Secretary state that:

“Deteriorated features from the restoration period will be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature will match the old in design, color, texture, and, where possible, materials.”

A determination of the severity of deterioration is left to the HDC and its staff. It requires a finding that requiring repair of the deteriorated feature would result in unwarranted hardship to the property owner. The Interior Secretary’s Restoration Standards do not take into account the additional cost of repair as compared to the cost replacement. Cost is not typically a factor that weighs heavily on a decision to approve or reject a HAWP permitting the replacement of a historic feature. Cost, in and of itself, is unlikely to support a finding of unwarranted hardship.

Under the Interior Secretary’s Restoration Standards, deteriorated features that must be removed are considered to be “missing features.” The replacement of those missing features must conform to the form and appearance of the restoration period. Furthermore, that conformity has to be “substantiated by documentary and physical evidence,” hence, the “onerous burden” faced by an owner of a historic resource who must justify replacement of deteriorated feature.

Owners of historic properties must approach the HAWP process as if it were a “contested case” even in the absence of neighborhood opposition. That is because the decision made will be based on the strength of the applicant’s presentation of documentary and physical evidence.

Property owners need to consult with qualified professionals who understand architectural history as well as the engineering and design of a restoration project.  The process requires architecture and engineering professionals to evaluate the condition of the deteriorated historic feature and to testify at a hearing before the initial meeting with HDC staff.

Navigating the HAWP process is complex. It requires a team approach that includes professional and legal counsel that are knowledgeable and experienced in interpreting the standards for preservation, the intent of preservation and the process by which HAWP’s are approved or denied.

 

If you have questions about or need assistance with the HAWP process, please contact Stephen Orens at (301) 251-1180 x 324 orsorens@mcmillanmetro.com.