The Millers sought an after-the-fact certificate of approval from the Historic Preservation Commission to use fiberglass columns instead of wood on a porch they attached to the front of their home in an historic district. Although a porch existed when the house was built before 1908, it was removed before the Millers’ purchased the house.
The Commission refused, finding (after a Circuit Court remand of their original decision without findings) that the project was “rehabilitation” as defined by the City Code, not “new construction” because the project involved the replacement of a once-existing porch. Pursuant to the City Code, the Commission had adopted the Secretary of the Interior’s Standards for Rehabilitation (see, 36 C.F.R. § 68.3 (1995)). The Commission Guidelines and the Secretary’s Standards “make clear that the use of traditional materials is preferable” for rehabilitation.
The Millers argued that the porch construction was new construction within the meaning of the Code because the porch did not exist when their project began, and that even if their project were properly considered rehabilitation, the actions of the Commission amounted to an impermissible “ban” on fiberglass materials.
On appeal, the Court deferred to the Commission’s view of the evidence but not as to interpretations of law, and considered the Commission’s decision that the porch project was not new construction to be a mixed question of law and fact. The Court held that “whether Mr. Miller’s porch project constitutes new construction is fairly debatable, and the record contains substantial evidence to support the Commission’s conclusion that it does not.” Regarding the question of whether the Commission improperly banned fiberglass, the Court first held that Miller did not preserve the question for appeal, but then stated that even if he had, the strong preference of the Commission to avoid fiberglass for rehabilitation did not constitute an outright ban. Tthe Court upheld the Commission’s decision.
Miller v City of Annapolis Historic Preservation Commission, 2011 WL 3890505 (Md. App. 9/6/2011).
The opinion can be accessed at: http://mdcourts.gov/opinions/cosa/2011/219s10.pdf
See also, the Preservation Law Digest at: http://preservationlawdigest.com/2011/09/12/miller-v-city-of-annapolis-historic-preservation-commission/
