Preservation Ordinance FAQ

Local Preservation Laws
| Authority to Regulate Property | Historic Designations | Reviewable Actions |
| Maintenance Requirements | Economic Hardship | Appeals and Enforcement | Other Land Use Laws

Preservation Law 101

| Federal Preservation Laws | State Preservation Laws | Local Preservation Laws | Constitutional Issues |

The historic preservation ordinance is the primary method by which communities protect their historic resources, and ultimately their character.

In addition to instilling pride within a community, historic preservation laws have been helpful in spurring tourism, generating new investment in otherwise forgotten areas, and increasing local tax revenue and property values. While the degree of protection may vary from place to place, most ordinances establish a historic preservation commission and a process for consideration of proposals to alter or demolish historic properties. Local governments with preservation ordinances may also become eligible for federal funds. Under the National Historic Preservation Act, up to 10% of a state's allocation under the Historic Preservation Fund may be transferred to "certified local governments."

Communities seeking to establish historic preservation ordinances should consult their city attorney before proceeding. While authority to enact such laws exist in every state, individual differences necessitate legal oversight.

Below you'll find the answers to some of the most frequently asked questions about historic preservation ordinances. If you don't find what you are looking for or need additional resources, please contact us at law@nthp.org.

 

What is a historic preservation commission?

A historic preservation commission or review board is an administrative agency generally established under a historic preservation ordinance. Its members typically have expertise in related fields such as architectural history, history, architecture, archaeology, real estate, and so forth, which helps to ensure that decisions are both rational and informed. Historic preservation commissions are primarily responsible for identifying historic properties for protection and reviewing and acting upon applications to alter, demolish, add on to, move, or otherwise adversely affect any properties protected by a historic preservation ordinance.

Who appoints members to a preservation commission?

Commission members are generally appointed by the mayor for three-year terms, although variations may exist from place to place. Individual terms are usually staggered to ensure continuity over time. A chairperson may be appointed by the mayor or selected by the members of the commission.

How are historic properties identified? 

Historic properties are generally identified through a survey process, conducted by a historic preservation commission. In many cases, the National Register of Historic Places or a state register provides a useful starting point for identifying historic structures within your community. But, national and state register listings should not be relied upon as a substitute for survey work and ultimately the designation of historic properties under a local ordinance (even if the boundaries may ultimately be coterminous). Properties listed on the National Register should always be surveyed and listed independently. 

While variations exist from jurisdiction to jurisdiction, applications for designation are generally initiated by the property owner or a preservation commission, upon completion of an architectural survey. The application form, provided by the historic preservation commission, typically asks for background information on the property and requires the applicant to make his or her case for historic designation.

What are "historic districts" and "landmarks?"

Most jurisdictions designate historic districts or both historic districts and individual landmarks, depending upon the nature of the resources being protected and the extent of a local community's authority to regulate historic property under state law. Historic districts are geographically defined areas often comprised of significant concentrations of historic structures or sites that share common historic events, aesthetic features, or physical development. Landmarks are typically individual properties or sites.

Properties located in historic districts are generally labeled as contributing or noncontributing. This label, in turn, dictates the level of review that will be applied. Contributing properties may enjoy full protection while changes to non-contributing property (including vacant land) are generally approved if "compatible" with the character of the historic district. A few jurisdictions also recognize distinctions among individual landmarks, providing the highest level of protection for properties of "exceptional importance."

What criteria are used to designate historic properties? 

The criteria for designation and the process for considering applications for designation are generally set forth in the preservation ordinance. If criteria for designation is not set forth in a state's enabling law, many communities utilize the criteria for listing historic properties in the National Register of Historic Places or an equivalent state register. An ordinance, for example, may seek to protect districts, sites, buildings, structures, and objects that are associated with historic events, "that embody the distinctive characteristics of a type, period, or method of construction," or "that represent the work of a master."

Who designates historic districts and landmarks? 

Once a preservation commission has determined that certain property meets the criteria for designation, it may recommend or nominate that property for designation. Individual properties are most often designated as historic resources by a city council or comparable legislative body, upon holding a public hearing. In some communities, however, the preservation commission or another administrative body may be empowered to designate individual properties and/or districts.

Many historic preservation ordinances provide interim protection for historic resources while applications for designation are pending. This prevents property owners from demolishing the resource before a commission or legislature has had time to act on the application.

How are historic districts and landmarks protected under a preservation ordinance? 

Historic preservation ordinances generally empower preservation commissions to review and act upon applications for "certificates of appropriateness." Most often, owners of property subject to a preservation ordinance must submit an application to a preservation commission for permission to alter, move, or construct additions, and new buildings. This application, once deemed complete, will be evaluated at a public hearing based upon standards for review set forth in the ordinance. Upon consideration of all the evidence, the commission will issue a formal decision, making specific findings of fact and conclusions of law. Permission is typically granted in the form of a historic area permit or certificate of appropriateness.

What types of actions generally require review by a historic preservation commission? 

Review of applications to alter, demolish, or otherwise change historic property is generally triggered by a request for a building and/or demolition permit. Permit officials will delay issuance of a permit until the matter has been referred to and acted upon by the preservation commission in accordance with the terms set forth in the preservation ordinance. Historic preservation commissions generally have authority over alterations to a building's exterior, additions, demolition, and new construction in historic districts. Some communities also protect interior spaces that are accessible to the public.

Preservation commissions may be authorized to consider other types of alterations, such as repainting, window or roof replacement, and signage, which may or may not require a building permit. Despite the wide range of actions which are subject to commission review, responses to a recent survey completed by the National Alliance of Preservation Commissions showed that the vast majority of applications for certificates of appropriateness are ultimately approved.

How do local governments protect historic properties from being demolished?

Controls over requests to demolish historic structures vary somewhat from community to community. Many localities allow for the demolition of historic properties only in cases where retention of the structure will cause an extreme burden on the property owner and the resource cannot be rehabilitated or sold or the property poses a safety threat after a fire or other type of natural disaster. This is the best way to ensure that historic resources are protected.

A limited number of communities, however, permit property owners to demolish historic properties after a specific waiting period, during which time a city or town, along with private preservation groups, can explore alternative actions to save the building. Some communities also condition the issuance of a demolition permit upon a showing that a new building will be constructed and that the building will be compatible with other historic resources in the area.

What standards of review are used to guide commission's in acting upon requests for certificates of appropriateness?

Many communities utilize the Secretary of the Interior's Standards for Rehabilitation to guide commissions in reviewing permit applications, which are general in nature. For example, the Secretary's standards provide that "deteriorated architectural features shall be repaired, wherever possible," and "in the event that replacement is necessary, the new material should match the material being replaced in composition, design, color, texture, and other visual qualities." Communities considering adoption of the Secretary's standards should be careful to ensure that the standards actually correspond to the types of properties being protected and the scope of authority conferred on the commission by the ordinance.

In addition to legal standards of review, which must be set forth in the preservation ordinance, many communities also adopt advisory design guidelines. These are used not only to guide the commission, but also to assist the property owner in understanding what types of actions may or may not be appropriate.

An increasing number of communities have also established an informal process to encourage property owners to consult with commission staff and/or members before embarking on a major project. Although not required, this process generally helps a property owner and/or architect to understand the factors that will be considered by a commission in acting upon a specific application.

Do historic preservation ordinances impose affirmative responsibilities on property owners?

Routine maintenance work such as repairing a broken fence or replacing individual tiles on a slate roof is generally excluded from commission review. However, many ordinances require that designated property be kept structurally sound and may empower a commission to make repairs and seek reimbursement in instances where a property is essentially being demolished by neglect.

What if a historic resource is threatened by actions not covered by the ordinance, such as a proposed subdivision or street widening?

While historic preservation commissions have specific authority over applications by property owners to alter or demolish historic properties, commissions may be given authority to review applications for other types of actions which may affect historic properties such as a rezoning or subdivision request.Generally, referrals will be made to a preservation commission, who, in turn, will issue a "recommendation."

Some states have also enacted "environmental protection laws" which require state and/or local governments to consider the impact of proposed governmental actions on historic properties, such as the construction or widening of a road running through a historic district.

How should a community address special situations such as undue hardship?

Many ordinances provide for the consideration of "economic hardship" claims. Economic hardship provisions typically provide a "variance" from individual restrictions under the ordinance in situations where the owner demonstrates that he or she would otherwise be denied "all reasonable or beneficial use of his or her property." Requests for economic hardship exceptions are generally considered once a commission has acted upon an application for a certificate of appropriateness. Such provisions are generally helpful in providing property owners assurance that relief is available in situations where the impact of a particular action proves to be exceptionally harsh. They can also enhance a local government's ability to protect individual properties if challenged in court. 

What if a historic building poses a threat to public safety?  

Many preservation ordinances also include public safety provisions which recognize that it may be necessary to demolish a historic structure that threatens or endangers public safety. To discourage unnecessary demolition, public officials should be encouraged to stabilize rather than demolish historic buildings, when feasible.

Should decisions under historic preservation ordinances be appealed to another administrative body or court?

Some preservation ordinances provide property owners with the opportunity to appeal a commission decision to another administrative body, such as a board of appeals or a planning commission. In establishing an appeal process, it is important to ensure that the appellate body is required to uphold the commission's decision if it is supported by "substantial evidence" or a "rational basis" exists for its decision. If the appeal body engages in "de novo" review (i.e., it engages in its own fact-finding rather than limiting its review to the information contained in the record and is not required to defer to the conclusions reached by the commission), that body must use the same criteria as the preservation commission in making its decision.

How are preservation ordinances generally enforced?

Preservation ordinances usually empower local jurisdictions to impose fines and other penalties for individual violations. Fines generally range from $100 to $5,000 per day depending upon the type of property being regulated, residential or commercial, and the likelihood for violations. Penalties for unlawful alterations or demolitions may include the denial of a building permit for a number of years or mandatory reconstruction. (Stiffer penalties are used to discourage "midnight" demolitions of commercial historic structures, where a fine might be viewed as a business cost rather than deterrent.) In cases of demolition-by-neglect, a commission may be empowered to repair a building and then recoup its expenses by imposing a lien on the property.

What type of assistance is available for owners of historic property?

Several states and an increasing number of local communities have established tax incentive programs to provide monetary support for historic property owners seeking to rehabilitate their properties. Relief may be provided through property tax abatement or an income tax credit. Some communities have also established a "transferrable development rights" program, enabling individual owners to transfer or sell unused development rights to other parcels within a community. Property owners may also be eligible for tax relief through federal government programs including the "rehabilitation tax credit" and a charitable tax deduction for the donation of a historic preservation easement.

Are there any limitations on a local jurisdiction' authority to adopt an historic preservation ordinance? 

The authority to enact historic preservation ordinances for the protection and preservation of historic structures is conferred on local governments by the state. Some local governments operate under a broad grant of authority, commonly referred to as "home rule authority." Most governments, however, operate under a specific grant of authority that enumerates specific powers relating to certain governmental functions such as zoning, or as in this case, historic preservation.

Historic preservation ordinances must be consistent with the specific grant of authority conferred by the state. In other words, protection for historic properties must correspond with the regulatory scope of applicable enabling laws