Miller v. City of Annapolis Historic Preservation Commission

⁶¹⁵ GRAEFF, J. This appeal involves the installation of fiberglass columns, rather than wood columns, in the reconstruction of a front porch in the Annapolis Historic District. Bryan Miller, appellant, received approval from the Historic Preservation Commission of the City of Annapolis (the “Commission”) to build a porch with wood columns. Instead, he installed fiberglass columns. The Commission then rejected his application for an after-the-fact Certificate of Approval to permit him to keep the fiberglass columns.

He appealed to the Circuit Court for Anne Arundel County, which affirmed the decision of the Commission. On appeal to this Court, Mr. Miller presents several questions for our review, 1 which we have consolidated and rephrased as follows: 1. Did the Commission err in evaluating the Millers’ application pursuant to guidelines for “rehabilitation” rather than “new construction?” 2. Did the Commission exceed its authority in enacting a guideline that deems the use of fiberglass columns “not acceptable?” 2 ⁶¹⁶ For the reasons set forth below, we shall affirm the judgment of the circuit court.

STATUTORY BACKGROUND — PRESERVATION OF HISTORIC SITES The Maryland General Assembly enacted the Historic Area Zoning Act (the “Act”), Md.Code. (1957, 2010 Repl.Vol.), Art. 66B §§ 8.01-8.17, with the stated purpose to “preserve sites, structures, and districts of historical, archeological, or architectural significance and their appurtenances and environmental settings.” § 8.01. 3 Section 8.03(a)(1) provides for local governments to establish a historic preservation commission, and § 8.06(a)(1) directs municipalities to “adopt guidelines for rehabilitation and new construction design for designated sites, structures, and districts that are consistent with those generally recognized by the Maryland Historical Trust.” Pursuant to the Act, any individual seeking to “construct, alter, reconstruct, move, or demolish a site or structure located within” a designated historic district must apply for permission from the local historic preservation commission in certain circumstances. Id. § 8.05(a). These circumstances involve a project that will result in “any exterior changes ... which would affect the historic, archeological, or architectural significance of the site or structure, any portion of which is visible or intended to be visible from a public way.” Id.

The Act limits the local Commission’s grant of authority to review “only the exterior features of a structure.” Id. § 8.07. With respect to the type of review given to proposed plans, the Act provides that a “historic preservation commission shall strictly judge plans for sites or structures determined by research to be of historic, archeological, or architectural significance.” Id. § 8.08(a). There is an exception, however. Section 8.08(b)(2) provides that a local commission may not strictly judge plans involving “new construction,” and must instead ⁶¹⁷ apply a lenient standard, “[ulnless the plans seriously impair the historic, archeological, or architectural significance of the surrounding site or structure.” Pursuant to its authority under the Act, the Annapolis City Council established the Commission and granted it authority to review applications for Certificates of Approval for exterior changes to historic buildings.

Annapolis City Code § 21.08.060 (2009). With respect to the level of the Commission’s review, the guidelines provide, consistent with Art. 66B, as follows: The Commission shall be strict in its judgment of plans for landmarks, sites or structures determined by research to be of historic, cultural, archaeological, or architectural significance. The Commission shall be lenient in its judgment of plans for landmarks, sites or structures of little historic, cultural, archaeological, or architectural significance, or of plans involving new construction, unless in the Commission’s judgment such plans would seriously impair the historic, cultural, archaeological, or architectural significance of surrounding landmarks, sites or structures. The Commission is not required to limit construction, reconstruction, or alteration to any one period of architectural style. § 21.56.060(D).

The Annapolis City Code includes a definition of “new construction,” as well as other terms relevant to this appeal. These definitions are as follows: “New construction” shall mean construction which is characterized by the introduction of new elements, sites, buildings, or structures or additions to existing buildings and structures in historic districts. “Reconstruction” shall mean the process of reproducing, by new construction, the exact form and detail of a vanished structure, or part thereof, as it appeared at a specific period of time. “Rehabilitation” shall mean the act or process of returning a property or building to usable condition through ⁶¹⁸ repair, alteration, and/or preservation of its features which are significant to its historical, architectural, and cultural values. Id. § 21.56.020. The City Code authorizes the Commission to “adopt and utilize in its review of applications rehabilitation and new construction design guidelines and criteria for designated landmarks, sites, structures, and districts which are consistent with the U.S. Secretary of the Interior’s [Standards for [Rehabilitation.” Id. § 21.08.060(E)(7).

Pursuant to this authority, the Commission adopted a document titled: Building In the Fourth Century: Annapolis Historic District Design Manual (1994, revised 2007) (the “Design Manual”), which sets forth the criteria under which the Commission evaluates applications for Certificates of Approval. Section D, entitled “Guidelines to Preserve and Protect Structures and their Components,” expressly adopts the Secretary of the Interior’s Standards for Rehabilitation, see 36 C.F.R. § 68.3 (1995), “[ejxcept where more stringent requirements are stated in these guidelines.” 4 Several guidelines address porches and the materials to be used. Guideline D.23 recognizes the significance of a porch, stating that, “[f]or many vernacular buildings, the front porch is the most important visual and decorative building element in front of a simple building block.” It states: “It is important that surviving porches retain their original form and materials.” Addressing the materials to be used to replace or add new elements, guideline D.28 specifically states: “Use of contemporary synthetic or fiberglass moldings, trim, and columns is not ⁶¹⁹ acceptable,” and “[mjaterials that seek to replicate historic elements such as contemporary synthetic fiberglass moldings, trim, and columns should be avoided.” Even for new buildings, guideline D.28c discourages the use of fiberglass, stating: “Materials that seek to replicate historic elements such as contemporary synthetic fiberglass moldings, trim, and columns should be avoided, as well as the use of aluminum, engineered wood, and or vinyl or plastic siding and trim along with cementitious synthetic wood products.” 5 FACTUAL AND PROCEDURAL BACKGROUND Mr. and Ms. Miller are the owners of a home at 114 Market Street, located within the City of Annapolis Historic District. When the home originally was constructed between 1903 and 1908, a single-story porch was attached.

The porch subsequently was torn down, and it was replaced with a brick stoop. The Millers learned of the existence of the porch through research, and they endeavored to reconstruct it. On August 15, 2005, the Millers submitted to the Commission a request for permission to replace the original front porch. They described the project as follows: “Replace original front porch with wood elements and brick base.

Construct Screening wall in driveway area with 4’ brick columns & wrought iron screen.” With respect to the columns on the porch, the Millers represented that the project would include: “Tapered wood columns with a 10 inch diameter and a profile to match the old photographs.” The objective was to reconstruct the porch that existed when the property was first built between 1903 and 1908. The Commission approved the application on September 13, 2005. Construction commenced. In 2006, the builder hired to construct the porch recommended that Mr. Miller use fiber ⁶²⁰ glass instead of wood to build the porch columns.

Without seeking a new Certificate of Approval from the Commission, Mr. Miller allowed the builder to install fiberglass columns. In a letter dated October 15, 2007, the Commission informed Mr. Miller that it had learned that the columns installed on his porch “deviate[d] from the Certificate of Approval” issued by the Commission. The Commission advised Mr. Miller that his options at that point were either to install the columns the Commission had previously approved or to submit an application for approval of an after-the-fact installation. On November 13, 2007, the Millers submitted to the Commission another Application for Certificate of Approval.

His description of the project was as follows: “Application for after-the-fact installation of porch columns.” On January 8, 2008, the Commission held a hearing on the Millers’ application. Ms. Miller testified that she and her husband had made a number of improvements to their property at 114 Market Street since 1996, largely in an effort to restore it to its original appearance. The Millers initially intended to build an exact replica of the original porch that was attached to the house when it was first constructed in approximately 1908, using an old photograph they had found. Because of various agency requirements, however, significant modifications were required.

The porch was constructed in 2006 and painted in 2007. Mr. Miller explained why fiberglass columns, rather than wood columns, were used in the construction of the porch. He stated that Steve Park, the builder, suggested using fiberglass instead of wood because of “serious maintenance problems caused by wood rotting.” Additionally, the design of the porch had been modified to bring the porch into compliance with requirements of Public Works. In particular, a metal column was being added, which required the builder to split the wood to accommodate the metal column.

Fiberglass, in contrast, would accommodate the metal column more easily. Mr. Miller believed that the fiberglass columns would be “indistinguishable” from the well-maintained wood columns ⁶²¹ and would “cause no harm to the historic district.” Accordingly, he decided to approve Mr. Park’s suggestion to use fiberglass instead of wood to build the columns. Mr. Miller testified that he did not seek approval from the Commission after deciding to switch the building materials for the columns because the project had already been delayed by Public Works, and he did not want any further delays, particularly because winter was approaching. He further stated that, when the project was in progress, he was unaware that the Commission’s guidelines listed fiberglass as an unacceptable building material for the exterior of buildings in downtown Annapolis.

Mr. Miller assured the Commission that, had he been aware of the guidelines, he would not have used fiberglass, and he asserted that he had not, at any time, attempted to conceal that he had not used wood columns. Mr. Miller concluded his testimony by explaining why he believed he should not have to replace the fiberglass columns. Initially, he argued that the fiberglass columns were “indistinguishable from well maintained wood columns.” Moreover, he asserted that fiberglass is a “compatible material for new construction” pursuant to the Commission’s guidelines. Finally, he noted that his neighbors had complimented the columns on several occasions and commented that they looked like they were made from wood.

Mr. Park, who built the porch, explained why he recommended that Mr. Miller use fiberglass instead of wood for the porch columns. He stated that the base of a wood column is a common place for rotting and attracts insect infestation. Fiberglass columns, by contrast, do not rot or attract insects. Mr. Park opined that “wood columns are inferior” to fiberglass columns, and the quality of wood presently used to build such columns is far below what would have been used when the porch originally was constructed around 1908.

He attributed the decline in the quality of wood to changes in practices in the lumber industry, in particular, the use of fast growing species of trees to comply with environmental and endangered species laws. Mr. Park described the fast growing wood as ⁶²² far less rot resistant than species that previously were more popular. He also described wood columns as “hav[ing] a greater tendency to warp and twist when split and reinstalled,” which would have been problematic because Public Works required a metal beam that would need to be covered by a column. Mr. Park testified that the fiberglass columns were visually identical to wood columns.

Mr. Tom Davies, the architect who designed the Millers’ porch, similarly explained the problems with rotting that are associated with wood columns. He testified to the problem with using wood columns given the steel column required by Public Works. He explained that exterior wood columns require ventilation to ensure that the wood expands and contracts at an even rate and to prevent moisture build up inside the column, but the required steel column would block the ventilation inside a wood column, preventing the natural expansion and contraction of the wood. Mr. Davies concluded that using fiberglass was the most practical means to accommodate the steel column.

Patricia Blick, Chief of Historic Preservation for the City of Annapolis, suggested that the Commission reject Mr. Miller’s application. Although noting that the “porch project did not remove the historic fabric” because the original porch had been removed, Ms. Blick stressed that the original application that had been approved by the Commission specified that wood columns would be installed, and Commission guideline D.28, regarding the use of contemporary materials, states that the use of fiberglass columns is unacceptable. Ms. Blick emphasized that, although the Commission had adopted the Secretary of the Interior’s Standards for Rehabilitation, it had the authority to enact stricter historic preservation standards, provided that they were consistent with the Secretary’s standards. She quoted one of the Secretary’s Standards for Rehabilitation, which states: “Deteriorated historic features shall be repaired rather than replaced.

Where the severity of deterioration requires replacement of a distinctive feature, the new feature shall match the old in design, ⁶²³ color, texture, and other visual qualities, and where possible, materials.” Ms. Blick described the following four circumstances in which substitute materials may be used: “(1) the unavailability of historic materials; (2) the unavailability of skilled craftsman; (3) inherent flaws in the original materials; and (4) code required changes.” She stated that none of these exceptions applied to Mr. Miller’s application, and she urged the Commission to reject Mr. Miller’s application and require the installation of wood columns. Richard Bierce, an architectural consultant, submitted a brief comment echoing Ms. Blick’s conclusions. Jennifer Orri-go, representing the Historic Annapolis Foundation, concurred with Ms. Blick’s conclusions, citing concern regarding “the precedent setting nature of [Mr. Miller’s] application.” She further noted that the Commission’s guidelines specifically identified fiberglass as an unacceptable building material. Dan Sams, who lived in Mr. Miller’s neighborhood, testified that the fiberglass columns on Mr. Miller’s porch are identical in appearance to wood columns.

He stated that, although he “frequently turn[s] in perceived violations to the [Commission],” he never reported Mr. Miller’s columns because he never perceived a violation of the Commission’s regulations. Mr. Sams, an administrator of federal and state tax incentives for the State of Maryland, testified that, had Mr. Miller applied for a tax incentive or an easement for the porch project, he would have applied the standards for reconstruction, not rehabilitation, in reviewing the application because “this was an entirely new construction and there was no historical material.” 6 He maintained that, “[i]n the absence of ... historic materials ... the objective ... in reconstruction is to recreate the appearance of the historic building for interpretive purposes.” Although Mr. Sams acknowledged that traditional materials are always preferred, he stated that, “in some instances[,] substitute materials may be used if they ⁶²⁴ are able to convey the same visual appearance.” Fiberglass columns, he concluded, “convey the same visual appearance as the smooth wood column.” The Commission next heard from Kathleen Davies, who read a letter written to the Commission by Carter Gibson, Mr. Miller’s next-door neighbor. Mr. Gibson’s letter described the fiberglass columns as “very tasteful, handsome, and very practical,” and he described the porch as “a welcome addition to the neighborhood.” Mr. Davies observed that “a large part of the maintenance on the building[s] in the historic district is the repair and replacement of porch columns,” and he opined that “it is time to allow more modern materials as long as the look and feel of the finished product doesn’t change.” Gilbert Renault, a former chairperson of the Commission, challenged Ms. Blick’s conclusion that, by requiring Mr. Miller to install wood columns, the Commission merely would be enforcing its high standards. He explained that it was not possible to “get columns made out of 19th century lumber anymore,” and therefore, he urged the Commission to consider which material gives a better appearance, the lumber currently available, which he characterized as “vastly inferior to 19th century wood,” or fiberglass.

Mr. Renault argued that fiberglass gave a better appearance. He further testified that the Millers’ porch project “was completely new construction,” and that Mr. Miller did his “best to reproduce everything perfectly.” At the conclusion of testimony, the commissioners shared their views. Chairperson Sharon Kennedy described Mr. Miller’s presentation as “interesting” but “unpersuasive,” agreeing with Ms. Blick that the appropriate standard of review for the application was the standard of rehabilitation. She stated that the Commission’s decisions were required to be “predictable, transparent, and consistent.” She expressed the view that approval of fiberglass would run contrary to precedent.

Commissioner Mariah McGunigle spoke next, voicing her opposition to Mr. Miller’s application. She maintained that ⁶²⁵ good quality wood was still available and that rotting and deterioration could be delayed by inserting a “short [ ] baluster” beneath the column. She also expressed concern about “fiberglass on a street that has high level pedestrian activity” because pedestrians would be able to touch it as they walked by. Ms. McGunigle stated that “having something that’s a replaceable material that low to the public eye is concerning for me,” and she opined that Mr. Miller’s application did not meet the Commission’s standards.

Kim Finch, another commissioner, stated that she believed Mr. Miller’s porch project to be reconstruction because the original porch had not been in existence for a long time. She stated that the Secretary of the Interior’s Standards for Reconstruction should apply, and that use of contemporary materials would be appropriate in this case because the project was aimed at reconstructing a historic feature, not preserving a historic feature itself. Other commissioners expressed the view that approving Mr. Miller’s application would establish a bad precedent, and it would permit the use of contemporary materials, which “is expressly prohibited in the guidelines.” Commissioner Ginger Doyel questioned whether the fiberglass might be a more appropriate building material than wood to construct porch columns because the 19th century wood was no longer available, but she ultimately opposed Mr. Miller’s application because approving fiberglass columns “would jeopardize the [CJommission’s need to be predictable, transparent, and consistent in its decision.” Commissioner Shelley Rentsch expressed support for Mr. Miller’s application. Although she agreed that there was quality wood available that could be used on the porch project, she viewed the project as new construction, not rehabilitation, given railing height changes necessitated by the Annapolis City Code.

Ms. Rentsch stated that, although a “trained eye” might, over time, be able to notice that the columns were made of fiberglass and not wood because the fiberglass columns would age more slowly, she concluded that the porch ⁶²⁶ “contributed] to the quality of the street scape.” Moreover, she interpreted guideline D.28 to provide some latitude for using substitute materials. Before ordering the official vote on Mr. Miller’s application, Chairperson Kennedy noted that, even if the Commission viewed the porch project as new construction, provision D.28c of the Commission’s guidelines states that fiberglass should be avoided in projects seeking to replicate historical elements. She then ordered a vote, and the Commission rejected Mr. Miller’s application by a vote of four-to-two. On February 5, 2008, Mr. Miller filed a Notice of Appeal and Petition for Judicial Review of the Commission’s January 8, 2008, decision rejecting his request for approval of “fiberglass columns on his front porch that had been installed instead of wooden columns.” On February 25, 2008, the Commission filed a Notice of Intention to Participate.

On June 25, 2008, Mr. Miller filed a Memorandum in Support of Petition for Judicial Review. He argued that the Commission over-stepped its authority by banning fiberglass in the Historic District, that “the failure of the [Commission] to write an opinion makes the decision impossible to sustain,” and that “it is bad public policy to require inferior materials in the [Historic [District.” On July 28, 2008, the Commission filed its answer to Mr. Miller’s Petition for Judicial Review. It defended its decision on three grounds: (1) the decision was “based on sound preservation principles,” and “[t]he use of non-traditional materials is inconsistent” with those principles; (2) the Commission “acted within the scope of its authority under State and Local law”; and (3) the decision was supported by substantial evidence. The Commission urged that, in the event that its findings were “deemed insufficient to support its conclusion,” the court should remand, not reverse, its decision.

On August 8, 2008, Mr. Miller filed his reply memorandum. He maintained that, because the Commission did not issue a written opinion when it rejected his application, the circuit court was left to guess the rationale for the Commission’s ⁶²⁷ decision. He argued that, “without findings of fact and conclusions of law it is impossible to discern what preservation principles were applied,” and the court had no basis to review the Commission’s decision. Mr. Miller further argued that the Commission exceeded the scope of its authority by adopting a guideline that deemed fiberglass “unacceptable” because State law empowered it merely to review materials for compatibility.

On August 26, 2008, the circuit court remanded the matter to the Commission “for the issuance of written findings of facts and conclusions of law.” On October 14, 2008, Commissioners Rentsch and Finch issued a memorandum setting forth the opinion of the minority of the Commissioners regarding the Millers’ application. They stated that standards for “reconstruction,” as opposed to “rehabilitation,” applied to the new porch addition. They set forth the Secretary of the Interior’s Standards for Reconstruction, which provide, in pertinent part, that when “[r]econ-structing a non-surviving building ... substitute materials may be used as long as they re-create the historical appearance.” The minority opinion concluded that, because the “columns installed do convey the appearance of the historic building and as no part of the original porch was existent at the time of reconstruction, requiring that wood be the only acceptable material goes beyond the most specifically related guidelines” promulgated by the Secretary of the Interior for the reconstruction of historic buildings. On November 11, 2008, the Commission adopted findings of fact and conclusions of law regarding the Millers’ application.

The Commission’s findings of fact were as follows: (1) Mr. Miller’s home is a “historic structure, located in the C-l Conservation Residence District under the Annapolis Zoning Code”; (2) the residence “was constructed between 1903 and 1908,” and it initially “had a full width covered front porch, which was removed at some later date and replaced by a more contemporary narrow set of brick steps”; (3) evidence of the nature of the original porch came from several sources, including “two early photographs, ‘ghosts’ of pilasters, which were revealed when shingles were removed from the front of the ⁶²⁸ house,” and a 1908 insurance map, which showed the outline of a one-story porch; (4) Mr. Miller used fiberglass columns in constructing the porch, rather than wood columns “as authorized in the initial Certificate of Approval”; and (5) “[a]s constructed ... the columns look similar to painted wooden columns.” The Commission then found, “as a matter of law, that the weight of the evidence supports denial of [the Millers’] application.” The Commission discussed its decision to deny the application as follows: The applicants did not meet their burden of proof that the use of fiberglass material on columns of a replacement porch is “generally compatible” with 114 Market Street and the surrounding area. A decision to approve the use of fiberglass in the case would be contrary to the Annapolis Code, the [Commission] Guidelines, the Secretary of the Interior Standards for Rehabilitation, and prevailing preservation practices for the following reasons: A. 114 Market Street, constructed between 1903 and 1908, is an existing historic building in the Annapolis Historic District and thus the application for the Certificate of Approval to use fiberglass materials for columns on a replacement porch to that building is subject to strict scrutiny. The project is not “new construction” within the meaning of the code, which is defined under § 21.56.020 of the Annapolis Code as “construction which is characterized by the introduction of new elements, sites, buildings, or structures or additions to existing buildings and structures in historic districts,” because the project involved the replacement of a once-existing porch. But for the fact that the project involved