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Beware of Historic Preservation Pitfalls

Real Estate Law Update

Do you live in an historic district or is your home or other building a designated historic resource in Montgomery County? If so, it is important to remember that you may need an Historic Area Work Permit prior to undertaking demolition or exterior changes to the structure. If you are unsure whether you live in an historic district or own an historic resource, you should check with the Historic Preservation Commission Office prior to commencing your project. Montgomery County has many districts (i.e., groups of homes or buildings) and individual properties that are designated historic. Generally, any proposed change to the exterior of an historic structure or to the environmental setting of the site or district requires an Historic Area Work Permit. This includes major projects such as demolition and new construction and also can include smaller projects such as changes to windows, doors, siding, shutters and tree removal.

Historic Area Work Permit Applications are reviewed by the Historic Preservation Office planning staff and the nine-member Montgomery County Historic Preservation Commission to determine if the work meets the county standards for approval. An Historic Area Work Permit is not required for interior changes or ordinary exterior maintenance, defined as work that does not alter the exterior features of an historic resource and uses the same materials in replacement. If an applicant receives an unsatisfactory result at the Historic Preservation Commission, then an appeal can be taken to the County Board of Appeals, a five-member county board that reviews other county agency decisions.

Historic Preservation is Local and National

In 1966, anticipating the United States Bicentennial in 1976, the United States Congress enacted the National Historic Preservation Act, requiring local jurisdictions to implement historic preservation planning and other measures. Many people view historic preservation as local, but in fact, it is national as well. Environmental Impact Statements, for example, are required for all projects involving federal funding, and EIS must include historically designated properties. In 1976, the Maryland-National Capital Park and Planning Commission (M-NCPPC) created the Locational Atlas & Index of Historic Sites, which identifies resources across the county that are potentially historic. Resources listed on the Atlas are protected from demolition or “substantial alteration.”

Montgomery County Historic Preservation Master Plan and Ordinance

In 1979, the Montgomery County Council adopted the Master Plan for Historic Preservation and the Historic Preservation Ordinance (Chapter 24A of the County Code). The Master Plan for Historic Preservation is the county’s preservation planning document. It includes the list of all officially designated historic sites and districts. Sites and districts that have been added to the Master Plan have been found to be of special historic or architectural significance and require protection under the Historic Preservation Ordinance. Chapter 24A of the County Code – Preservation of Historic Resources – is the body of law that controls historic preservation in the county. The ordinance includes all the regulations, definitions, and powers and duties of the decision-makers.

New districts and resources are considered and designated on Montgomery County’s Master Plan for Historic Preservation on a regular basis, typically during a review of a master plan update for a particular planning area in the county. The Historic Preservation Office reviews applications and applies the evaluation criteria found in Chapter 24A of the County Code. The criteria generally looks at historical and cultural significance or architectural and design significance. The entire evaluation and designation process involves review by the historic preservation planning staff, review and a public hearing by the Historic Preservation Commission, review and a public hearing by the Montgomery County Planning Board, review and comment by the County Executive, review and a public hearing by the County Council, and final determination by the Council. The property is reviewed at each stage for its eligibility for designation, and property owners may participate at each stage.

Montgomery Modern Considers Mid-Century Buildings for Historic Designation

Recently, Montgomery County historic preservation planners have reviewed local mid-century modern buildings and communities for potential designation – an effort called “Montgomery Modern.” Montgomery Modern looks at mid-century modern buildings and communities from the late 1940s through the 1960s – buildings barely over 50 years old that many people initially would not consider historic. Property owners should pay close attention if their properties are under review because designation can significantly impact the ability to make future changes and could impact their property’s value. When properties are designated as historic, tax credits and other benefits sometimes are available. Failure to maintain historic properties can bring about prosecution for “demolition by neglect.”

Our firm often works with clients who do not wish for properties to be designated historic or who want to modify the terms of the historic designation. Our firm also assists clients with all matters at the historic preservation staff, Historic Preservation Commission, Planning Board, Board of Appeals and County Council levels. For additional historic preservation information, contact Stuart Barr at Lerch Early & Brewer at (301) 961-6095 or srbarr@lerchearly.com, call the Historic Preservation Commission office at (301) 563-3400, or use the online interactive map at http://www.montgomeryplanning.org/gis/interactive/historic.shtm.

Stuart Barr is a land use attorney at Lerch, Early & Brewer in Bethesda, Maryland who regularly represents clients before the Historic Preservation Commission and other county and local agencies.

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This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.

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