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February 22, 2011

The Case of the Unfinished Wall

Earl 'Rocky' Mackintosh

It all started about 14 years ago when Capt. Edward “Massie” Simpkins began the process of removing “peeling paint” from the west elevation of his residence located at 134 W. 3rd Street in downtown Frederick.


Being the meticulous property owner that he is, when he purchased the property in 1987, Captain Simpkins began to remove the paint and repair deteriorating bricks on that side of the property.


The plan was to then “recoat the surface to protect it” with a lime wash which allows the brick to breathe while keeping water from being trapped under the surface.


Unfortunately the full completion of the project got very delayed due the fact that the captain was active duty military serving overseas – then he contracted a long term illness. But finally in early 2010, after finishing the work on the first level, he picked up where he left off and proceeded to complete the lime washing of the western upper level of the property visible from North Bentz Street.


So, you’ve got to be asking, what’s the big deal about a guy painting his house?


That is what Captain Simpkins was asking when he was cited for violating the Historic Guidelines of the City of Frederick Historic Preservation Commission just after he began his work again. It seems that the Simpkins was required to submit an application requesting permission to put a new finish on the exterior of his home.


Despite the citation, the captain did not believe that the commission’s requirement was warranted, so he continued with his work.


Based upon his research and interpretation of the guidelines, if the surface had been painted in the past, then reapplying a new and similar finish was allowed without permission from the Historic Preservation Commission or its staff.


But eventually after another citation and a $1,000 fine, he submitted an application and came before the commission.


The hearing date was July 8, 2010. The official request was to “repoint brick and apply lime wash paint” to the surface to the western wall of the residence.


Captain Simpkins was represented by William Castle, an expert witness knowledgeable in masonry construction and maintenance. Mr. Castle presented a 1975 photograph showing that the west elevation had been fully painted, and he believed that in and of itself made the case for his position.


The chairman of the commission at the time, local architect Tim Daniel, countered by asking if there was any “evidence to show that the building was originally painted” very soon after its construction in the late 1700’s. This is known as the “Period of Significance” by Historic Preservation Commission standards.


So, the real question became: Did Simpkins return the west elevation of his property to its possible “original unpainted state” when he removed the paint – before he proceeded to repaint?


Got that?


The case was continued more than once and then was heard for a final decision the next month on August 26th.


Lead by commission member and architect Gary Baker and rebuttal by Mr. Castle, considerable discussion ensued over the proper method of preserving the integrity of old bricks with motor and other treatments to prevent deterioration.


In the end, the applicant was given permission to repoint under specific guidelines; however the request to continue with the lime wash treatment was denied.


End of story, now, you ask?


Not quite.


The captain was extremely unhappy with the outcome as well as what he referred to as an elitist attitude by some of the commission members who voted to deny his request – and apparently there were a few “words” that took place between him and members Mr. Baker and Aldermanic Representative Michael O’Connor.


In the end, Captain Simpkins took his case to district court. The judge ruled in favor of Captain Simpkins, stating that if the property had been painted before it can be painted again – despite the commission’s statement that there was no compelling evidence the west elevation was painted during the “Period of Significance.”


The captain still harbors anger over all this, in that, while it caused him and his wife great stress, it also cost him $4,450 in legal fees. He also feels that the Commission Guidelines way over stepped the bounds of its mission to “safeguard the historical and cultural heritage of The City of Frederick.”


In a conversation I had with Mr. Baker, he said there was actual good that came out of all this, because it caused the commission to review the related sections of the Historic Preservation Guidelines. Staff was able to close what he referred to as ambiguous phrases, words and loopholes within the text of the document.


There is no question that downtown Frederick’s Historic District is a gem, and there should be enforceable guidelines, but who was right here?


While some think that the actions of the Historic Preservation Commission infringe on the real property rights of city residents, many believe in a strong guidelines. The latter believing that such strength is required to fulfill the rest of its mission to: “stabilize and improve property values; foster civic beauty; strengthen the local economy; and promote the appreciation of historic sites and districts.”


Rocky Mackintosh is president, MacRo, Ltd., a land and commercial real estate firm based in Frederick, MD. He also writes for MacRo Report Blog. Rocky can be reached at


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