Enabling Authority for Local Preservation Ordinances
State Preservation Laws
| Registers of Historic Places | Stewardship Programs | Historic Preservation Acts |
| Environmental Protection Acts | Enabling Authority for Local Preservation Ordinances |
| Easement Enabling Law | State Tax Incentive Programs | Other Laws |
The strongest protection for privately-owned historic places is afforded by local historic preservation ordinances.
Many states, if not all, have enacted laws providing local governments with requisite authority to adopt and implement such ordinances. Some local governments have successfully relied on a broad grant of authority to enact preservation ordinances. In so-called "Dillon Rule" states, such as the Commonwealth of Virginia, where a local jurisdiction's authority must be express, detailed authority should be provided.
The types of provisions commonly included in the enabling legislation are:
- A provision establishing a historic preservation commission or board with specific information on appointment procedures, composition of preservation commission, terms of members, officers, and voting procedures.
- A statement of regulatory and administrative authority granted to a preservation commission, including the authority to adopt administrative guidelines.
- A provision enabling the designation of landmarks and historic districts, and a list of types of resources to be designated such as structures, sites, archeological and cultural resources, and interiors.
- A provision establishing of criteria for designation.
- A provision establishing a process for nomination and designation including the identification of resources, procedures for nominating properties, notice and hearing requirements, and the final decision.
- A provision establishing authority to protect resources while designation applications are pending.
- A provision establishing criteria and procedures for de-designating properties.
- A provision regarding the affirmative responsibilities of owners of designated properties such as maintenance and a prohibition against demolition-by-neglect.
- A provision governing reviewable actions under a preservation ordinance, including the types of actions subject to review (alterations, additions, moves, demolitions, new construction), treatment of minor alterations and routine maintenance, scope of review authority (visible from public way, interiors and exteriors), and legal effect of review (binding, advisory).
- A provision setting forth standards for review.
- A provision establishing procedures for review of applications (including the role of staff and procedures for preliminary review/conceptual approval, notice and hearing requirements, and decision-making requirements).
- A provision establishing standards and procedures for granting exceptions for economic hardship.
- A provision regarding exceptions to the ordinance such as public safety.
- A provision regarding process for appeal.
- A provision governing enforcement, including the issuance of fines and penalties.
Although every state has adopted laws which enable local governments to enact historic preservation ordinances, the powers conferred under these laws vary greatly and to a large extent reflect the political realities of the time in which they were adopted.
The State of Indiana provides a good example of a detailed enabling law that touches on each of the 15 components identified above (see Indiana Code § 36-7-11). Other examples of states with detailed enabling laws include Maryland (Maryland Code Art. 66B, § 8.01 through § 8.17) and North Carolina (N.C. Gen. Stats. §160A-400.1 through 160A-400.14).
Layperson's Guide to Preservation Law: Federal, State and Local Laws Governing Historic Resources
First published in 1997, this booklet provides a concise and comprehensible guide to federal, state and local laws governing historic resource protection. The 2008 edition includes updated information on transportation issues, eminent domain, easements, the American's with Disabilities Act, and the regulation of historic religious properties.