HISTORIC DISTRICT COMMISSION
OCTOBER 5, 2016
Alexa Silver, Chair, called the meeting to order at 5:00 p.m. In attendance were Commission members Ted Gallo, Barbara Jorgenson, Ed Minch and Alice Ritchie, Kees de Mooy, Zoning Administrator, Jennifer Mulligan, Town Clerk and guests.
Ms. Silver stated that the Chestertown Historic District Commission takes its authority from Chapter 93 of the Code of the Town of Chestertown and operates under the Historic District Design Guidelines that were adopted by the Mayor and Council of Chestertown on October 7, 2002 and revised March 7, 2012.
Ms. Silver asked if there were any additions or corrections to the minutes of the meeting of September 7, 2016. Ms. Ritchie moved to approve the minutes as submitted, was seconded by Mr. Minch and carried unanimously.
The first item on the agenda was from TL Rentals for a project at 425 High Street. Mr. Justin Taylor was present and said that he would like to revisit the decision made at the last meeting requiring wood windows and re-propose the option for Anderson vinyl-clad 1-over-1 windows. He said that the wood option was not feasible and the Anderson vinyl-clad windows were in keeping with the Historic Guidelines.
Mr. Taylor stated that a newly made wood window would not compare to the quality of windows that were original to this building. Mr. Taylor stated that page 37 of the guidelines reads “applications to replace windows that are less than 50 to 70 years old are more likely to be approved by the HDC than the replacement of older windows, as these newer windows deteriorate more quickly than their older counterparts”.
Mr. Taylor stated that he would like permission to use Anderson vinyl clad wood windows to replace the existing vinyl windows. He said that the existing vinyl windows had rotted.
Mr. Minch stated that the windows in place were illegally installed. Mr. Taylor stated that he inherited that problem and was unaware of the issue when he purchased the building. Mr. Taylor stated that installing inferior wood windows would become a burden due to their maintenance issues. He said that another party removed the original windows long before he bought the building and he wanted to replace the existing vinyl windows.
Mr. Taylor stated that on newer wood windows the sash, rails, stiles and jambs would be different than on the original windows. He said that an original window would have sash weights and they were not made that way today.
Ms. Jorgenson stated that anyone with wood windows had the same burden as the applicant. Mr. Taylor stated that 425 High Street did not have wood windows, they were vinyl. He said that if removed the wood windows he would understand the Commission’s request to replace the windows in wood but that was not the case. Ms. Jorgenson stated that there was a principle of law that said “you take your victim as you find him”. She said that the applicant purchased a building in the Historic District and he should have known what was in the guidelines.
Mr. Taylor stated that they purchased a building with vinyl windows and were asking to replace them with vinyl clad windows. He said that 4 out of the 6 houses on the block had the same windows they were proposing to install and he assumed that they were given permission by the Historic District Commission to do so. He said that he was trying to clean up a deteriorating property save future maintenance.
Mr. de Mooy stated that there were a number of examples where Anderson 400 series windows have been approved as a replacement for non-original windows or for new construction. He said that he looked through minutes earlier in the day and has a list of 22 properties where clad windows have been approved to replace non-original windows, including William Smith Hall at Washington College. He said that the windows proposed were a quality window that is better than what exists currently and the applicant’s proposal was to replace non-original windows.
Mr. Minch asked if a vinyl window would have been approved at the time the original windows were removed. Mr. de Mooy stated that a vinyl window would have never been approved at that time.
Mr. Jay Yerkes of Yerkes Construction was present and stated that he used the proposed Anderson windows on properties along North Mill Street where windows had been replaced at some point in the 1980s.
Mr. Minch stated that the problem was that the vinyl windows were installed illegally. Mr. Yerkes stated that Anderson 400 series wood vinyl-clad windows have been accepted for replacement windows and this application was for replacement windows as the owner purchased the building with windows that were not original to the property.
Ms. Silver stated that the windows in the building are vinyl not wooden vinyl-clad windows. She said that the fact was that the original windows long precede the applicant’s control of the building and they should not be held responsible for someone else having removed them. She said that the Anderson window proposed was frequently approved and thought that it should be allowed.
Ms. Ritchie asked the difference between Anderson 400 series and Anderson 200 series. Mr. Taylor stated that the main difference was the sill angle and window sizes. The 200 series matched more closely with the existing window openings at 425 High Street.
Mr. Minch stated that the Commission could also not be certain that the windows that had been replaced 10 years ago were the original windows.
Ms. Jorgenson stated that she was not familiar enough with the 400 block to visualize the houses and know whether the other houses have vinyl-clad windows. She said that she looked at the application in advance and did not know what the applicant was coming back to discuss as there was nothing new on the application.
Mr. Minch moved to approve BP2016-100 for the replacement of existing vinyl windows at 425 High Street with Anderson 200 series wood vinyl-clad 1-over-1 windows as it was not clear that the windows removed before the vinyl windows were installed were the original windows on the property and this motion is not to be precedent setting for any other application in the Historic District, was seconded by Mr. Gallo and carried unanimously.
Ms. Jorgenson stated that the Commission should have been told in advance what the application was for and it should have been amended so the Commission would have the opportunity to look at other houses on the block. She said that procedurally things were not handled correctly. Ms. Mulligan stated that she would be clearer in the future on the agenda and in the applications.
The next item on the agenda was BP2016-105 for a new house at 405C Cannon Street. Mr. Kevin Shertz, architect, was present for the application. The owners of the property, Jeffrey and Susan Coomer were also present.
Mr. Shertz stated that a site plan was submitted with the architectural plans and said that this was a former commercial property sub-divided into four (4) single family lots. He said that the residence would have a 2-car garage at the back of the lot and was being built within the confines of all setbacks.
Mr. Shertz stated that there was a complete package with all materials for the house included as part of the application and to be kept on file. Mr. Shertz stated that exterior would have cementitious siding and Anderson 400 series windows would be used throughout. Fiber cement board and batten style siding would be used on the garage. He said that that front setback of the house aligned with 407 Cannon Street. There would be a gravel driveway.
Mr. Shertz stated that there would be portico on the front of the house, which was consistent with other houses along the block. He said that the rooflines were also consistent with other houses along the block. The house will have a brick foundation and brick sidewalk, with the same brick as is used in Town. The garage foundation will be poured concrete.
There will be a 6 panel Douglass fir wooden door in the front with sidelights and transom. The side and rear door will be a wood 2-panel door with the upper half of the door in glass. Mr. Shearon stated that the overhang of the roof was 16” on the front of the house and the rakes on the sides of the house were 10”.
Mr. Shearon stated that there would be a tall crawlspace. Mr. Minch stated that a conditioned attic was shown in the drawings and suggested moving the air handlers to the crawl space and having ducts inside the house with insulated attic floors.
Ms. Jorgenson stated that it appeared that most of the adjacent houses had 6-over-6 windows and this proposal was for 2-over-2. Mr. Shertz had photographs of 2-over-2 windows along the block. Mr. Minch stated that a historically accurate renovation was just completed across the street and had 2-over-2 windows.
Ms. Jorgenson asked where the casement windows would be located. Mr. Shertz stated that casement windows were located in the bathroom and kitchen. The casement windows would look like traditional 2-over-2 windows.
Ms. Jorgenson stated that this was going to be a beautiful addition to Cannon Street and complimented Mr. Shertz on a job well done.
Ms. Jorgenson moved to approve BP2016-105 for a new house at 405C Cannon Street as submitted as it was keeping with the Design Guidelines for new construction, was seconded Ms. Ritchie and carried unanimously.
The next item on the application was BP2016-107 from Sultana Foundation at 200-204 S. Cross Street for a shed. There was nobody present for the application and the matter was tabled until the November 2nd meeting as there were several questions regarding the application.
The last item on the agenda was BP2016-106 from the Town of Chestertown for a fence at 213 S. Cannon Street (AJAX Park). Ms. Mulligan stated that Rebuilding Together Kent County was installing the 4’ high wooden fence around AJAX Park. Photos of the fence were in the file. Mr. Minch moved to approve BP2016-106 from the Town of Chestertown for a fence as described in the application at AJAX Park, was seconded by Ms. Jorgenson and carried unanimously.
Ms. Jorgenson asked how Mr. Taylor’s visit to the Commission today was permissible under the Guidelines. Mr. de Mooy stated that if the Commission was going to stick to the proper procedures, the decision that was made by the HDC should have been appealed to the Circuit Court. He said if that happened the Town would likely not enter a defense and typically the case would be sent back to the Historic District Commission.
Mr. de Mooy stated that in this case the windows requested by the applicant were not denied; rather they were changed from vinyl clad to wood by the Commission. Ms. Jorgenson stated that the argument was over semantics. She said that Mr. de Mooy going through the minutes for the applicant was appropriate but should have been done by the applicant before coming to the Commission in September.
Ms. Ritchie stated that since she began on the Commission applications have been amended in meetings because the Commission indicates what would be approved. Ms. Jorgenson stated that the amendment was accepted by the applicant and wondered why they were able to come back so soon for a change in the application. Ms. Ritchie stated that there was a change in fact, in that the applicant found out that the wood windows would be inferior to the vinyl clad wooden windows that they proposed.
Ms. Jorgenson asked if the application should have been denied at the last meeting. Ms. Silver stated that the application for the Anderson 200 vinyl-clad windows was never denied; the Commission changed the application by moving to approve wood windows. Ms. Jorgenson stated that in this case, the applicant accepted the amendment. Ms. Ritchie stated that there was a mistake in fact in that the applicant did not realize the implications of using wood windows. Ms. Jorgenson stated that she disagreed and the applicant did not want to install the wood windows because of cost.
Ms. Ritchie stated that administrative decisions can be appealed on mistake of fact and that was the argument that the applicant made as they said that the wood windows would be inferior to the Anderson series windows as originally proposed.
Ms. Jorgenson stated that she saw the argument as the applicant having to maintain the windows and they wanted to minimize maintenance costs. She said that procedurally she did not think that the right thing was done by the Commission and the rules were bent.
Mr. de Mooy stated that when it became clear that the Commission did not know what windows were in place originally there should have been discussion based on decisions made in the past by the Historic District Commission in similar situations. He said that aside from the Customs House and Widehall, there are no examples where an applicant was forced to go with a pure wood window for the reasons the applicant in this case cited because the newer wood windows do not last, unless they are custom made with tight-grained, old growth wood.
Ms. Ritchie stated that she thought Ms. Jorgenson was concerned with setting a precedent for someone who did not like a decision being able to return for a second bite at making an argument. Ms. Jorgenson stated that the application was not properly presented to the Commission. Mr. de Mooy stated that he thought the decision to force the applicant to have wood windows was not supported by findings of fact and technically the applicant should have appealed the decision to the Circuit Court which would have then been remanded back to the Historic District Commission where the same discussion would take place, only several months later. Ms. Jorgenson stated that the burden would have then been on the applicant to prove why the decision of the Historic District Commission should be changed.
Ms. Ritchie stated that the problem comes in because the applicant accepted the recommendation of the Commission in September and it may start a procedure where if someone was unhappy with a ruling they would just come back the next month to argue their case. She said that the applicant should not have accepted the recommendations of the Commission.
Ms. Jorgenson stated that rulings should be tough enough to put a burden on an applicant to go to the Circuit Court and pay their fees to open a case if they were dissatisfied. Mr. de Mooy stated that when an application is made, that application should be ruled upon with the materials submitted and not modified or reworked by the Commission.
Mr. de Mooy stated that if the Commission amends an application and the applicant is not satisfied, then they should withdraw that portion of the application and return at a future meeting with research backing up their request.
Ms. Silver stated that research was done on the suggestion made to change this particular application and it was not fair to penalize the applicants because they did not have all the facts on the materials proposed by the Commission. She said that the applicants agreed to do something the Commission suggested without knowing the consequences. Ms. Jorgenson stated that the applicant was a professional contractor and had to know what the wood windows entailed so this procedurally was incorrect and not allowed by Commission.
Ms. Ritchie stated that there are situations in which administrative hearings can be reheard and it was mostly when there was new information or a mistake had been made. Ms. Ritchie stated that the Commission should warn people about withdrawing a portion of the application if they were not comfortable with a decision because the Commission does make suggestions and applicants agree to them all the time to get their requests through.
Mr. de Mooy stated that another good example was when the Tidewater Trader train station was going to be forced to go with a metal roof and the applicant did the research and found that the train stations on the Eastern Shore have shingled roofs. He said he thought it was appropriate to rehear the application.
Mr. de Mooy stated that applicants returning to revisit an application did not happen often, but in this case he believed that application should be reheard.
Ms. Ritchie stated that there was an application where a gentleman came in with a shed request which had a specific design and he was approved for a shed that the Commission approved in wood with no idea of how it was going to appear once finished.
Ms. Silver stated that in the future, the Commission should likely be careful to allow an applicant to return to rehear an application if the applicant was not happy with a decision made by the Commission. Mr. de Mooy stated that currently the Circuit Court is technically the only appeal for an applicant. Ms. Ritchie stated that appealing to the Circuit Court would hold up any application for at least 6 months.
There being no further business, Mr. Minch moved to adjourn the meeting at 6:15 p.m., was seconded by Mr. Gallo and carried unanimously.
Submitted by: Approved by:
Jennifer Mulligan Alexa Silver
Town Clerk Chair