Maryland Bar Bulletin
Publications : Bar Bulletin : November 2012

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This silence in the state law invited confusion over the propriety of appointing alternate members to historic district commissions.

Land use attorneys whose practice involves dealing with local historic district commissions should make sure to take a look at HB 858, a new law that went into effect this year and provides an important procedural tweak to the operation of historic district commissions throughout Maryland.  

HB 858 is the direct result of the city of Gaithersburg’s experience with the historic preservation process.  In 2011, Gaithersburg encountered a number of questions after a major reorganization of its Historic District Commission (HDC) to bring it more in line with state recommendations. 

Previously, Gaithersburg had been unique in the state as the only local government for which the same individuals comprised both the elected legislative body (the mayor and city council) and the HDC, changing hats when necessary. A separate Historic Preservation Advisory Committee reviewed historic area work permits and made recommendations to the HDC. 

While this prior arrangement was vetted and determined to be permissible, it presented a number of obvious challenges. Among other things, it limited Gaithersburg’s eligibility for grant funding for historic preservation projects. 

As a result, the city council redesigned Gaithersburg’s HDC to be a body that was more independent from the municipal legislature, freeing the mayor and city council to think more broadly about the impact of historic designations without being limited to the Secretary of Interior’s enumerated standards. Ultimately, the mayor and city council retained the final say on whether to designate a property as historic, but the HDC would be able to review and rule upon historic area work permits without elected officials needing to review each of those decisions. It naturally followed that many of the volunteers who had served on the Historic Preservation Advisory Committee ended up serving on the newly reconstituted HDC. 

The city’s new HDC was initially comprised of regular voting members and two alternate members, all appointed by the mayor.  However, the city’s charter and code were silent as to the precise role that alternate members play in the decision-making process of the HDC. During the HDC’s proceedings, questions started to arise as to the role of the alternates. 

With two equal alternates, how did the HDC decide which alternate’s vote would count in the absence of a regular voting member?  And because the law was silent as to the precise role of alternates, could they insist on participating in HDC debates and votes even when all of the regular voting members were present? 

In tackling these questions, Gaithersburg looked to state law for guidance. 

Under Maryland law, in addition to county and municipal legislatures, there are three other kinds of local commissions that wield land use authority:  planning commissions, boards of appeals, and historic district commissions.  Existing state law already specified the role of alternate members on planning commissions and boards of appeals. But just like Gaithersburg’s local law, the state law was silent with respect to the role of alternate members on historic district commissions. 

This silence in the state law invited confusion over the propriety of appointing alternate members to historic district commissions and their relationship to full-fledged members.

It also invited confusion over the effect of an alternate member’s support for, or opposition to, a particular proposal pending before a commission, and other aspects of an alternate member’s participation in the commission’s proceedings.

Gaithersburg’s delegation in the General Assembly sponsored HB 858 as a simple procedural fix so that the state law would be clear and consistent when it comes to the role of alternate members on all types of local land use commissions. Alternate members play a key role on commissions and ensure that the business of these commissions is handled in a timely fashion, but the extent of their involvement needed to be made clear.

Because the state law was silent, individual local governments could have passed laws one-by-one to clarify the role of alternates on their own historic district commissions, a practice Gaithersburg employed.

But ending the effort there would have led to an inconsistent patchwork of rules across jurisdictions. HB 858 allowed for an instant, uniform fix, by expressly empowering all non-charter counties and municipalities to appoint alternate members to a historic district commission beyond the minimum number of regular voting members, resolving any uncertainty caused by the prior silence in the statute.  This solution encourages the continued operational efficiency of our local historic district commissions, recognizes the important role that alternate members play in that effort, and reduces local governments’ exposure to litigation or reversals of decisions by their historic district commissions.

Ryan Spiegel is the Vice President of the Gaithersburg City Council and a member of the Maryland Municipal League’s Legislative Committee. He is also an attorney in the Litigation Department of Winston & Strawn in Washington, D.C.

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Publications : Bar Bulletin : November 2012

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