If a Maryland town creates a historic district, can the town council itself act as the historic district commission?

Plain-English summary

Sykesville's mayor asked the Attorney General in 1989 whether the town, in setting up a historic district, could have the town council itself act as the historic district commission, or could create the commission but keep the council in charge as the final decision-maker with the commission serving only in an advisory role. The Attorney General concluded no on both counts. The Historic Area Zoning Act, Article 66B, §§8.01 through 8.15, required any local government that created a historic district to also establish a separate commission of three to seven specially qualified members serving staggered three-year terms, and gave that commission, not the town council, the authority to approve or reject proposed exterior changes to historic properties. A town council could decide whether to create a historic district at all and where to draw its boundaries, but once it did, state law required an independent commission with real decision-making power, not a rubber-stamp body under the council's thumb.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Historic Area Zoning Act discussed in this opinion, then codified at Article 66B, §§8.01 through 8.15 of the Maryland Code, was recodified in 2012 by Chapter 426 of the Laws of Maryland into Title 8 of the Land Use Article; the specific Article 66B section numbers cited in this opinion no longer exist at those citations in current Maryland law, though the underlying historic-preservation commission structure appears to have carried forward into the Land Use Article recodification.

Common questions

In 1989, could a Maryland town council act as its own historic district commission? No. The opinion concluded that the Historic Area Zoning Act required a separate historic district commission with three to seven members, each individually qualified by special interest, knowledge, or training in fields like history, architecture, or preservation, serving staggered three-year terms. A town council, made up of members elected by the citizenry rather than appointed for preservation expertise and serving uniform (not staggered) terms, could not double as that commission.

Could the town make the commission merely advisory and keep final say for itself? No. The opinion concluded the Act gave the commission, and only the commission, the authority to approve or reject proposed exterior changes to historic properties. The town council could set the district's boundaries and retained ordinary building-permit authority, but could not reserve final review power over the commission's historic-preservation decisions.

Did a town have to create a historic district at all? No. The opinion confirmed a Maryland town had discretion whether to establish a historic district and where to draw its boundaries. The obligation to create a genuine, independent commission applied only once a town chose to create a district in the first place.

Where could someone appeal a historic district commission's decision, according to this opinion? The opinion pointed to a prior 1982 Attorney General opinion (67 Opinions of the Attorney General 409) concluding that appeals from a historic district commission's decisions went either to the local board of appeals or directly to the circuit court, under what were then Article 66B, §§4.07(d)(1) and 4.08(f), not to the town's own legislative body.

Background and statutory framework

The Historic Area Zoning Act, enacted as Chapter 874, Laws of Maryland 1963 and codified at Article 66B, §§8.01 through 8.15, gave Maryland's non-chartered counties and municipalities (other than Baltimore City) authority to regulate the construction, alteration, and demolition of buildings with historic or architectural value, separate from ordinary zoning. Section 8.03(a) required any historic district commission to have three to seven members, each qualified "by special interest, knowledge or training" in fields like history, architecture, preservation, or urban design, serving staggered three-year terms. Sections 8.04 through 8.14 gave the commission, not the local governing body, the power to approve or reject applications to change a historic building's visible exterior.

The opinion leaned on two Court of Appeals decisions construing the Act. In City of Annapolis v. Anne Arundel County, 271 Md. 265 (1974), the Court held that historic district commission jurisdiction extended to every owner within a district, including a county government that wanted to demolish its own building, because historic zoning protects a building's exterior appearance "against destruction or substantial impairment by every one, whether a private citizen or a governmental body." In Faulkner v. Town of Chestertown, 290 Md. 214 (1981), the Court upheld the Act and a local historic ordinance against a vagueness challenge, holding the requirement that a property owner obtain a commission permit before changing a visible exterior feature was clear and enforceable. Drawing on these cases and its own earlier opinions (62 Opinions of the Attorney General 490 (1977) and 67 Opinions of the Attorney General 409 (1982)), the Attorney General reasoned that the General Assembly deliberately assigned historic-preservation decisions to a specialized, independently qualified body, not to the ordinary elected legislative body, and that neither folding the commission into the council nor stripping it of final decision-making power would be consistent with that legislative design.

Citations and references

Statutes:

• Article 66B, §§8.01 through 8.15, the Historic Area Zoning Act analyzed in this opinion
• Article 66B, §8.03(a), setting the historic district commission's membership qualifications and staggered terms
• Article 66B, §§8.04 through 8.14 and §8.05, giving the commission authority over exterior-change applications
• Article 66B, §§4.07(d)(1) and 4.08(f), governing appeals from commission decisions
• Chapter 874, Laws of Maryland 1963, the law that originally enacted the Historic Area Zoning Act

Cases:

• Cardon Invs. v. Town of New Market, 55 Md. App. 573, 466 A.2d 504 (1983), aff'd 302 Md. 77, 485 A.2d 678 (1984), on a municipality's zoning authority being limited to what the State enabling law delegates
• City of Annapolis v. Anne Arundel County, 271 Md. 265, 316 A.2d 807 (1974), holding historic district commission jurisdiction reaches government-owned buildings too
• Faulkner v. Town of Chestertown, 290 Md. 214, 428 A.2d 880 (1981), upholding the Act's permit requirement against a vagueness challenge

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 176-182 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

LOCAL GOVERNMENT

Municipalities - Historic Area Zoning - Town Council May Not Serve As Historic District Commission - Commission May Not Be Created As Advisory Body Only

March 15, 1989

The Honorable Lloyd R. Helt, Jr.
Mayor of Sykesville

You have requested our opinion on whether the Historic Area Zoning Act, Article 66B, §§8.01 through 8.15 of the Maryland Code, requires Sykesville to create a historic district commission in order to exercise the powers granted in the Act. In addition, you ask whether Sykesville may enact a historic district ordinance that gives the town council the powers of a historic district commission or that makes the commission merely an advisory body to the council.

For the reasons given below, we conclude as follows: Sykesville has the discretion to decide whether to create a historic district and to define the boundaries of a district. However, in order to implement the historic and architectural protections authorized under the Historic Area Zoning Act, the town must establish a separate commission when it creates a historic district. Moreover, the town council may neither exercise the functions of the historic district commission itself nor create the commission as an advisory body only. Once created, the commission must be allowed to exercise the powers granted by the Act to all such commissions.

I

Historic Area Zoning

The planning and zoning authority of a municipality arises not from its general police power but from the authority delegated to it by the General Assembly under the State enabling law, Article 66B of the Maryland Code. Cardon Invs. v. Town of New Market, 55 Md. App. 573, 466 A.2d 504 (1983), aff'd 302 Md. 77, 485 A.2d 678 (1984). Sykesville's authority to enact historic district zoning, therefore, is limited to the powers provided under the Historic Area Zoning Act, Article 66B, §§8.01 through 8.15.1

The Act provides a statutory scheme for historic preservation that is separate and distinct from the other zoning provisions of Article 66B. See generally City of Annapolis v. Anne Arundel County, 271 Md. 265, 316 A.2d 807 (1974); 73 Opinions of the Attorney General 238 (1988); 62 Opinions of the Attorney General 490 (1977).2

Section 8.01(a)(2) authorizes local jurisdictions to enact ordinances or resolutions to "regulate the construction, alteration, reconstruction, moving and demolition of" structures having historic and architectural value and their "appurtenances and environmental settings." Section 8.01(b) provides that the purposes of such ordinances or resolutions include safeguarding the heritage of the local government "by preserving the district therein which reflects elements of its cultural, social, economic, political, or architectural history"; and "promoting the use and preservation of historic districts for the education, welfare, and pleasure of" the residents of the local government. To these ends, §8.02 authorizes local governments to establish districts of historic and architectural value.

Section 8.03(a) authorizes the local government to create a historic district commission consisting of three to seven members, "all of whom are qualified by special interest, knowledge or training in such fields as history, architecture, preservation or urban design ...." The members serve staggered three-year terms and are eligible for reappointment. In seeking persons with suitable qualifications, "[c]ounty or municipal authorities may consult private societies or agencies to request the names of possible members on a commission." Id.

1
All statutory references in this opinion are to Article 66B.
2
With certain exceptions, the Act is applicable to all nonchartered Maryland counties and to all Maryland municipal corporations except Baltimore City. See §§7.03 and 8.01(a)(2); 60 Opinions of the Attorney General 569 (1975).
The Act was enacted as a separate statute, not as part of a general zoning law.
Chapter 874, Laws of Maryland 1963.

Sections 8.04 through 8.14 specify the powers and duties of the commission and the standards and procedures under which these responsibilities are to be accomplished. A person or entity seeking to change a visible part of a structure's exterior "shall file with the commission an application for permission ..." to do so. "Each such application shall be referred to and considered by the historic district commission and accepted or rejected by the commission." §8.05. The procedures for these reviews and the factors to be considered by the commission in approving or rejecting such proposals are detailed in §§8.06 through 8.11. Most importantly, §8.12 prohibits the issuance of permits or the beginning of construction until the commission has either approved the project or taken no action on it for 45 days.

II

Judicial Construction of the Act

In City of Annapolis v. Anne Arundel County, the Court of Appeals considered the provisions of the Act and the relationship of a local government to its historic district commission. The issue in the case was whether Anne Arundel County, which owned a building within the City of Annapolis' historic district that it wished to demolish, was required to obtain permission to do so from the Annapolis Historic District Commission.

The Court of Appeals found "substantial and significant differences between traditional zoning and historic area zoning," indicating the General Assembly's intention that political subdivisions owning land within a historic district are to be "subject to the jurisdiction of the historic district commission." 271 Md. at 291. To accomplish the primary purposes of historic area zoning, the exterior of buildings having historic or architectural value must be "preserved against destruction or substantial impairment by every one, whether a private citizen or a governmental body." 271 Md. at 291-92 (emphasis in original).

The Court also observed that, whereas traditional zoning is primarily directed at the use of land and the density and location of buildings, historic zoning is concerned only with preservation of the exterior appearance of buildings based on architectural and historic merit. The use of the buildings is unaffected by historic commission decisions. 271 Md. at 291. The Court thus found that "the jurisdiction of the Commission should extend to all owners be they private persons or governmental agencies." 271 Md. at 292. Indeed, the City of Annapolis itself was subject to the commission's jurisdiction. 271 Md. at 293.3

Subsequently, the Court of Appeals further construed the Act in Faulkner v. Town of Chestertown, 290 Md. 214, 428 A.2d 880 (1981). Once again, the Court affirmed the validity and scope of the Act and the role of the local historic district commission. In Faulkner, a property owner had received permission to make certain exterior changes to a non-historic building within the historic district, but then had made additional changes not authorized by the commission. The commission directed the owners to remove the unauthorized construction and suit followed. The Court upheld the Act and the authority of the commission against charges of overreaching, arbitrariness, and vagueness:

To us the Act and ordinance are clear and capable of understanding by people of ordinary intelligence .... In plain language what the ordinances and the Act are saying is that if one proposes to do anything to a building within a historic district which will involve changes to exterior appearance of the structure visible from a street or alley in the district, one must obtain a permit. 290 Md. at 228.

Under the Act, "one must obtain a permit" from the commission.
§8.05.

3
The Court also concluded that the Act does not effect a taking and does not deny due process. 271 Md. at 294.

III

Relationship of Town and Commission

A. Establishment of Commission

The Act invests the historic district commission with the authority to exercise review powers. Nothing in the language of the Act or its construction by the Court of Appeals suggests that any other entity has the power to perform a role that, by law, is assigned to the commission.

If a municipality establishes a historic district without an entity to exercise the powers granted in the Act, the establishment of a district would be meaningless, contrary to the protective purposes of the Act. Therefore, if Sykesville chooses to establish a district, in order to comply with the Act it must also establish a commission.

B. Role of Town Council

In our opinion, the town council may not provide in its ordinance for the council itself to be the historic district commission. As noted in Part I above, §8.03 requires a commission to have three to seven members, all of whom are qualified by special interest, knowledge, or training in fields related to historic preservation. This requirement "reflects a judgment by the General Assembly that these important functions are best handled by a specialized body possessing a particular expertise." 62 Opinions of the Attorney General 490, 496 (1977). It also provides that the commission members serve staggered three-year terms.

These requirements negate the possibility of any local legislative body serving as the commission. Under §8.03, commission members are appointed as individuals based on special qualifications; they are not appointed as a group based on their election by the citizenry. While individual members of a local legislative body might possess the requisite background, mere membership on the legislative body by itself is insufficient. Also, the uniform terms of a local legislative body would conflict with the Act's requirement of staggered terms.4

Maryland's statutory scheme of establishing a separate board with special qualifications and authority with respect to historic preservation is consistent with the approach generally taken in other states. See 1 Rathkopf, The Law of Zoning and Planning §§15.02 to 15.04 (1980); 2 Rohan, Zoning and Land Use Controls §7.03(1-2) (1988).5 Cases in other jurisdictions, in upholding historic preservation ordinances against charges of vagueness, have placed considerable importance on the knowledgeable and representative membership of the review boards and their ability to recognize and apply the criteria established. 1 Rathkopf, The Law of Zoning and Planning §15.02(b)(1).

We also conclude that Sykesville's historic district ordinance may not limit the commission to an advisory capacity and give the town council final authority. The Act gives the commission, and only the commission, responsibility for determining whether proposed exterior changes can be permitted and under what conditions. To be sure, the town council is responsible for determining the boundaries of the historic district, and the town will continue to have the primary responsibility for issuing and enforcing building permits. But specific decisions regarding the requirements of historic preservation within a historic district are the province of the commission. As this office opined over a decade ago: "It is our view that an action [by a local government] to delete a property from the historic district would in effect provide that the local government has ultimate appeal power over the decisions of the historic district commission. Such power is not provided in the enabling law and ... we conclude that it does not exist." 62 Opinions of the Attorney General at 496.

Section 8.14 does authorize appeals from decisions of the commission. As this office concluded in another opinion, however, such appeals would be heard either by the zoning board of appeals or

4
Under Article XVII, §3 of the Constitution, county commissioners serve four- year terms, which expire simultaneously.
5
State historic preservation enabling laws do differ in the degree of final authority given to the historic commissions. In many jurisdictions, the commission may delay, but cannot by itself deny, the issuance of a building permit in historic districts. Maryland's statute, however, does grant that authority and the Court of Appeals has affirmed its validity.

directly by the circuit court, in accordance with the provisions of
§§4.07(d)(1) and 4.08(f). An appeal would not be heard by the local legislative body.6

IV

Conclusion

In summary, it is our opinion that the Town of Sykesville is required to comply with the Act if it desires to undertake historic district zoning within its limits. Article 66B, §§8.01 through 8.15 require that a historic district commission be established along with the historic district in order to implement the historic preservation powers provided in the Act. The General Assembly did not intend for the local legislative body to appoint itself as the commission. Sykesville likewise may not relegate the commission to the status of an advisory body.

J. Joseph Curran, Jr.
Attorney General

Roberta B. McCarthy
Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions & Advice

6
In 67 Opinions of the Attorney General 409 (1982), the Attorney General concluded that: (1) §4.07(d)(1) gives the local board of appeals the power to hear and decide appeals from decisions of the historic district commission; (2) the board of appeals may consider the record of proceedings before the commission, as well as any other evidence or argument it chooses to hear and may make its own decision on any issue raised; (3) the board of appeals should give very strong consideration to the views expressed by members of the historic commission, particularly where these views relate to largely subjective aesthetic and other value judgments for which the commission members have special expertise and (4) in the alternative, the local jurisdiction may provide in its ordinance for an appeal directly to the circuit court under §4.08(f).