Miller v. City of Annapolis Historic Preservation Commission

Court of Special Appeals of Maryland, No. 219, September 6, 2011: Upholds a Maryland historic district commission’s decision that reconstruction to match an original porch, removed many years before from a home in a historic district, was rehabilitation, not new construction, and therefore commission could require use of wood rather than fiberglass columns.

The Millers sought approval from the Historic Preservation Commission of the City of Annapolis (the “Commission”) to use fiberglass columns on a porch they attached to the front of their home in the Annapolis Historic District. Although the porch existed when the house was built before 1908, it was removed before the Millers’ ownership.

The Commission refused, finding (after a Circuit Court remand of their original decision without findings) that the project was “rehabilitation” as defined by  the Annapolis Code, not “new construction” because the project involved the replacement of a once-existing porch. Pursuant to the Annapolis Code, the Commission had adopted the Secretary of the Interior’s Standards for Rehabilitation, 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 Annapolis 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. Accordingly, the Court upheld the circuit court’s decision affirming the Commission’s decision and awarded costs to the Commission.

Decision available at http://mdcourts.gov/opinions/cosa/2011/219s10.pdf.

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