While similar in many respects, preservation ordinances can differ widely from place to place. Variations may arise, for example, because of specific limitations on permissible regulatory action imposed at the state level or because of differing levels of political support for preservation in a given community. No single approach works in every situation, and thus, historic preservation ordinances are generally tailored to meet the individual needs of the community and the resources being protected.
Historic preservation commissions or design review boards administer most local ordinances. They are administrative bodies of local governments with members appointed by a mayor and/or legislative body that have interest and/or expertise in disciplines relevant to historic preservation. Commissions rule by majority vote and may have either binding or advisory review authority over historic designations or changes to historic properties, and in some cases, they must be consulted regarding other land use actions affecting historic resources, such as a request for a variance or the subdivision of land. The historic preservation commission, however, is the governmental agency that grants or denies a permit to change historic property.
Besides establishing a preservation commission, historic preservation ordinances generally set forth procedures and criteria for the designation of historic properties, along with procedures and criteria for reviewing requests to alter, move, or demolish such properties. Preservation ordinances also allow for consideration of hardship and other issues of special concern and establish a process for appeal and enforcement of its terms.
Authority to Regulate Property
Although a relatively new form of governmental regulations, historic preservation ordinances are well-grounded legally.
In 1978, the U.S. Supreme Court in its landmark decision, Penn
Central Transportation Co. v. City of New York, 438 U.S. 104 (1978),
recognized that preserving historic resources is "an entirely
permissible governmental goal," and that New York City's historic
preservation ordinance was an "appropriate means" to securing that goal.
Some states have also explicitly recognized historic preservation as a
legitimate governmental function in their state constitutions.
That being said, a local government's ability to regulate historic
properties is dependent upon state law. Local governments are creatures
of the state and, pursuant to the U.S. Constitution, the authority to
regulate private property is reserved to the states. Thus, it is
important to ensure that local preservation ordinances are consistent
with the authority bestowed on local governments to protect historic
resources. This authority may take the shape of a broad delegation of
authority (commonly referred to as home rule authority) or special
grants of authority that specify what types of properties may be
designated, who may designate those properties, the composition of a
preservation commission, actions subject to review, and so forth.
Properties are identified or designated as landmarks and historic
districts by local legislative bodies or preservation boards based on
detailed research and a rigorous review process. Sometimes, however, the
preservation commission or another administrative body may be empowered
to designate individual properties and/ or districts.
Most jurisdictions designate historic districts or both historic
districts and individual landmarks. While designations may include the
entire historic structure, many communities extend protection only to
the exteriors of such properties, and in some cases, only to those
facades visible from a public way. Some communities also protect
interior spaces, especially those spaces open to the general public.
Properties may be identified as contributing or noncontributing in
historic districts. This determination, in turn, may dictate 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."
The preservation ordinance sets forth the criteria for designation
and the process for considering applications for designation. More
detailed information may also be contained in implementing regulations.
While variations exist from jurisdiction to jurisdiction, historic
designations are generally initiated by the property owner, preservation
organizations or neighborhood associations, or the preservation
commission itself, after conducting a survey of historic properties
within the community.
Historic preservation ordinances generally empower preservation
commissions to review and act upon applications for certificates of
appropriateness (sometimes called "certificates of approval" or
"historic area work permits"). Most often, owners of property subject to
a preservation ordinance must submit an application to a preservation
commission for permission to alter, demolish, move, or construct
additions and new buildings. Requests for change are evaluated at a
public hearing based upon standards for review set forth in the
ordinance. The commission will generally issue a formal decision, making
specific findings of fact and conclusions of law. (A commission must
determine what the facts are, apply those facts to the standards in the
ordinance, and then reach a conclusion.) Permission is typically granted
in the form of a permit or certificate of appropriateness.
The extent of control over requests to demolish historic structures
varies from state to state, depending upon a state's enabling law, and
from community to community within a state. Many localities allow for
the demolition of historic properties only in cases where a property
owner establishes economic hardship or the property poses a safety
threat after a fire or other type of natural disaster. Some 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 actually be constructed
(i.e., by showing that plans and financing are sufficiently finalized)
and that the building will be compatible with other historic resources
in the area.
Routine maintenance work such as repairing a
broken fence or replacing individual tiles on a slate roof is generally
excluded from commission review. Many ordinances, however, 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.
An increasing number of communities have
also adopted provisions in their preservation ordinances to prevent a
practice often described as "demolition by neglect." Such provisions
enable a city or town, following notice and hearing, to make essential
repairs to prevent situations whereby a building or structure must be
demolished to remove a public safety hazard. Expenses are often recouped
by imposing a lien on the property.
Many preservation ordinances provide for variances from the strict
application of its rules in cases of economic hardship, and to a lesser
extent, projects of special merit. 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
Factors typically considered include the property’s current rate of
return; efforts to sell or list the property in its “as is” condition;
the economic feasibility of alternative uses for the property; the
extent to which the hardship is self-created; the claimant’s knowledge
of the property’s designation or the likelihood of designation at the
time the property was purchased; and the availability of any economic
incentives or funding.
Special merit provisions enable individual buildings to be demolished
or substantially altered when an overriding community objective, such
as the need to construct a conference center, exists. For example, in
the District of Columbia, a special merit project could include a
building designed by an outstanding architect or a project necessary to
achieve important social or community objectives.
Appeals and Enforcement
Historic preservation ordinances either provide for appeal to another
administrative body or legislative body or specify that appeal is to be
made directly to court. In establishing an appeal process, the
appellate body should be 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/or is not required to defer
to the expertise of the commission), that body must use the same
criteria as the preservation commission in making its own decision.
Preservation ordinances are usually enforced through stop-work orders
and the assessment of 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 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. Ultimately, the commission may seek an injunction in court to
compel compliance with the law.
Other Land Use Laws
Historic preservation objectives can be furthered through other land
use techniques, such as the establishment of conservation districts, the
adoption of a transferable development rights program, view protection
laws, or a city-wide demolition review program. In addition, through
comprehensive planning and the fine-tuning of zoning and subdivision
laws, communities can insure that its land use laws support rather than
undermine efforts to protect its historic resources.
Conservation districts, generally established as a zoning overlay,
protect character-defining streetscapes in older areas through the
regulation of changes to height, bulk, and mass of individual buildings.
As with historic districts, conservation districts have preservation or
conservation as their primary goals. However, the focus is on
preserving the area's traditional character rather than historic fabric.
Transferable development right programs protect historic resources by
shifting development pressure away from historic areas. Owners of
designated historic resources sell their unusual development rights to
commercial developers, who in turn, can use those rights to build larger
buildings in other areas within a city. The money received from the
sale of those rights can be used by the historic property owner to
maintain the property.
View protection laws can ensure that development near historic
resources maintain a resource's historic views or viewshed.
Alternatively, they can ensure that views of a historic resource, such
as a capitol building or other visual landmark are protected.
Demolition review programs provide a safety net for a community’s
historic resources by requiring the referral of all applications for
demolition permits of buildings over a certain age to a historic
preservation commission. If the building qualifies as historic, then the
property may be protected through official designation as a historic
resource or its owner may be required to participate in a demolition
delay process, whereby the owner and community officials work together
to develop solutions that would save the building.