Re: window replacement - historic district

Posted by Bamb00zle on 2017/8/3 22:16:05
I want to clarify a point in my post about the JC Historic Code requirements for historic windows. In the event anyone uses it for some reason subsequently, I want to be 100% accurate. In my previous post I used the word “reconstruction” instead of “restoration”*. The Jersey City Code at §345-71. L. 1. b. i. uses “restoration.” That section of the historic preservation code is regularly abused by the City.

The key points of my post don't change at all: 1.) The HPC and HPO's lawful authority is limited to regulating “preservation.” 2.) “Historic preservation” is only possible if something still exists from the past. 3.) HPO / HPC demands that owners use new, fake, “historic-looking” windows to replace NON-historic windows isn't historic “preservation”, so is outside their limited authority to compel.

The HPO and HPC abuse that section of the historic preservation code by ignoring a critical clause. In so doing they make it seem the code applies to replacing historic and NON-historic windows in historic district houses. It doesn't, and the clause they ignore shows it doesn't. Ignoring a critical clause isn't just a mistake, it's willful abuse, and it ought to stop. I've bolded the critical clause they ignore:

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....

This clause specifically refers ONLY to historic windows that have deteriorated. Everything following in that sub-section of the code is exclusively about deteriorated historic windows. The code is totally silent about replacing existing NON-historic windows in historic buildings. Replacing NON-historic windows with fake, “historic looking” windows isn't “preservation”. You can't preserve something, here a historic window, that doesn't exist.

So what is that section of JC code about? It describes what you must do when you have a deteriorated, existing historic window. You retain (preserve) as much of the original, historic window as possible. Everything of the existing historic window that can be saved must be “preserved”. Parts that are beyond repair must be “restored.” It means that if part of an original, historic window can't be repaired, you can't tear out the entire window. You must “restore” the beyond repair part and keep all the rest of the window.

For example, consider an existing historic window with a sash so badly deteriorated it can't be repaired. The sash holds the windowpane and moves when you open the window. The code allows you to make a new sash (or part of it), essentially identical to the historic sash, and use that “restored” sash to repair the existing, historic window. Only the “beyond repair” part, the sash, is “restored.” The rest of the window must stay and be preserved. That's “historic preservation.” As it is custom work, it can be (is) very costly, and you should carefully consider that before you buy a house in a historic district.

This reading of the code is fully consistent with the “preservation” purpose and language of the MLUL. “Restoring” only the beyond repair part and keeping all other parts of an existing historic window, to make the window fully operational, is “preservation.” Mandating such work is within the HPO and HPC's limited authority under the MLUL enabling “preservation” provisions.

In contrast, activities that are not “preservation”, for example, requiring that owners replace NON-historic windows with new, fake, historic-looking windows are beyond the HPO and HPC's limited authority allowed by the MLUL. Reflecting this limitation the JC Historic Code is completely silent about the replacement of existing, NON-historic windows in historic buildings. There's not a word about that situation anywhere in the code. There can't be because municipal zoning codes can't demand things that aren't permitted by the MLUL. And clearly, when a law or code is silent about something it can't be read to compel the thing about which it is silent.

When HPO and HPC demands go further than “preservation” activities they are misapplying the code and acting outside their lawful authority. And when they leave critical clauses off sections of code they are supposed to know and correctly administer, thereby changing the meaning of the code, that is plain, willful abuse. It is damaging to property owners, it ignores the State MLUL, and it raises serious legal risks for the City with Federal Housing Law. The City should put a stop to it.


*A note about definitions of “restoration” and “reconstruction”:
Although similar, the words “restoration” and “reconstruction” have particular meanings when used in Historic Preservation Codes and Guidelines. The best definitions (clearest, most precise, easiest to understand) are found in the Secretary of the Interior's Guidelines for Historic Preservation. Updated guidelines were released earlier this year. The JC Historic Code specifies the Secretary's Guidelines as the standard the JC HPC shall follow.
See: https://www.nps.gov/tps/standards/treatment-guidelines-2017.pdf

In the JC Historic Zoning Code, the definition for “reconstruction” (§345-6. - Definitions) is so badly expressed it doesn't make sense. It seems a typographical error was made repeating part of the wording from the definition for “restoration.” That's a problem because when wording in a law, regulations or code is poorly expressed and not “understandable by a person of common intelligence”, the law or regulation (or part of it) is invalid.

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