Re: window replacement - historic district

Posted by Bamb00zle on 2017/7/12 12:37:56
You do need to follow the “rules”, which you can find in the JC code at 345-30 and 345-71. Since it's a part of “Zoning” other general provisions apply as well, found throughout the Code and State Laws. Although you must follow the rules, rest assured Dan and the HPC won't do the same. They'll ignore the bounds of their authority, which are limited to “historic preservation”. Instead they'll demand the sun, moon and stars and won't give you a permit till they get what they want. The devil in understanding all this is in the details, which are widely mis-understood and applied. Read on if you choose, and you might learn something about the way the HPC and HPO operate in Jersey City.

First, you need to understand a little about the Municipal Land Use Law (MLUL). The MLUL is the enabling legislation from which the City draws its limited authority to regulate “historic preservation.” “Preservation” is the key word used in the applicable sections of the MLUL . Why is the word “preservation” so important? Well, in matters of historic preservation the enabling MLUL limits the regulatory powers it grants municipalities to preservation and ONLY preservation. “Reconstruction”, “restoration” and other such activities are NOT mentioned in the MLUL, and are, therefore, EXCLUDED as activities the City has any authority to compel.

So what about the word “preservation” in particular? Here we turn to the ordinary, obvious meaning of the word. It is plainly apparent it is only possible to “preserve” something that currently exists. The term “historic preservation” itself makes reference to something that is from history – that is, something that exists from the past. Conversely, if something does not exist, there is nothing to “preserve”. Put another way, if a historic feature no longer exists, then it can't be preserved. A fake, historic-appearing, replication of some non-existant feature or aspect of a building might be made by “reconstruction” or “recreation”, but those activities are not “preservation.”

With all that as background now to the matter of window replacement. First, take a careful look at the wording of the City code. It's found at 345-71 L. 1. b. I'll reproduce here for ease of reference, and have added the bold for emphasis of a key clause:

L. Additional Regulations for Alterations and Additions to Buildings and New Construction.
1. Windows.
b. Replacement.
i. If historic windows have deteriorated to a point precluding repair, rehabilitation or restoration, based on documentation submitted by the applicant, or a field inspection by the Historic Preservation Officer, replacement windows may be approved under a Certificate of No Effect if they match the historic windows in terms of configuration, operation, details, material and finish. Variations in details will be permitted if such variations do not significantly affect the visual characteristics of the historic window, including the shadow effect of muntins and sash on the glazing. In evaluating "significant" effect, other factors to be considered shall be the age of the building and its architectural quality, as well as the extent of reduction in the total glazed area of the proposed sash compared to the existing sash. For narrow wood windows (less than fifteen (15) inches wide), the reduction shall be limited to ten percent (10%); for wood windows, fifteen (15) inches or wider, the reduction shall be limited to six percent; for metal double-hung windows (of any size), the reduction shall be limited to ten percent (10%).
ii. In buildings less than thirty (30) years old, the replacement windows need not match the historic window in terms of materials. The finish, however, must match the finish of the original windows. On secondary facades, windows which are visible from a public thoroughfare need only match the historic windows in terms of configuration and finish.
iii. Proposals for replacement windows which do not meet these conditions will require a Certificate of Appropriateness

You'll notice the words used are about historic windows that STILL EXIST, although perhaps in such a state of disrepair that it is no longer possible to make them serviceable through means of repair, rehabilitation or reconstruction. Please note that the word reconstruction is used here to in reference to something that still exists, and needs to be preserved. It is not referring to the construction of something completely new where nothing presently exists. This latter use of “reconstruction” has a technical definition found in the definitions section of the Code, and more clearly in the Secretary of the Interiors Standards for Historic Preservation.

So, if your historic windows still exist, they must be preserved (by means of repair, rehabilitation or reconstruction). If your historic windows can't be preserved you're going to have to replace them with essentially identical, fake “historic” copies. And those copies don't come cheap. $3,500 a piece for long, parlor-level windows last time I checked, and that was a couple of years ago.

Now to “non-historic” windows in an old building. This situation is very frequent because many of the houses in the historic districts had the original wood windows removed and replaced, often by aluminum windows, at some past time. Obviously, the historic windows are no longer present, so they can't be preserved. It is notable that the Code is completely silent on the situation of replacement of a non-historic window in an old building. There isn't a word about it. But there is no mystery in that, it is exactly as you'd expect. City Codes can't include wording that is inconsistent with the City's limited power to regulate. The City does not have the legal authority to order or require the replacement of non-historic windows by historic windows in an old building, so words to that effect aren't in the Code. Recall the City can only regulate “preservation.” Ordering someone to replace a non-historic window with a fake-historic looking window would not be “preservation”, it would be “restoration” or “reconstruction” – and is therefore outside the City's authority to require.

Nevertheless, if your existing windows are not historic, then this is where the “demand the sun, moon and stars” hits you – Dan and the HPC will try to have you believe they have the authority to demand that you replace those non-historic windows with “fake historic” ones. And worse, if you are unlucky enough to have had your long parlor-level windows bricked up sometime in the past, well then they'll try to make you restore those long window openings as well. More expense.

These activities are not “preservation” of an existing historic feature. They are “restoration” of the building to its appearance from time time in the past. These kinds of demands by the HPC and HPO are beyond their legal authority to regulate “preservation.” All the definitions are in the Code. Again, better definitions are found in the Secretary of the Interiors Standards for Historic preservation. The latter definitions are much clearer than the City's, particularly the one for '”restoration” which is so badly written in the JC Code as to fail the “understandable by a person of common intelligence” standard.

As I've noted previously, the HPC and HPO get away with this abuse of their authority because many homeowners simply give in to the demands. It's expensive, time consuming and a hassle to take the HPC and HPO on. And you can't count on ANY support from our esteemed council persons. They're too busy doing the bidding of the Mayor. You can fight, but you'd need to hire an attorney intimately familiar with all the detailed requirements of zoning law. That's expensive, often more that the cost of the work and so the City gets its way. For owners who can't afford the expensive, extensive work demanded, well they often just sell, driven out of their neighborhoods by the heavy handed and abusive use of these zoning codes. That's how it goes down in JC – always has, probably always will.....

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